Dockets: T-2117-13
T-2-14
T-3-14
Citation:
2015 FC 670
Ottawa, Ontario, May 22, 2015
PRESENT: The
Honourable Mr. Justice LeBlanc
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Docket: T-2117-13
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BETWEEN:
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THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
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Applicant
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and
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NARGES
BAYANI
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Respondent
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Docket: T-2-14
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AND
BETWEEN:
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THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
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Applicant
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and
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NILOUFAR
BAYANI
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Respondent
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Docket: T-3-14
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AND BETWEEN:
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Applicant
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and
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KHADIJEH NEZAM-MAFI
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Respondent
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JUDGMENT AND REASONS
[1]
The three Respondents in this case are family
members. Narges and Niloufar Bayani are sisters, Khadijeh Nezam-Mafi is their
mother and they are all Iranian citizens. Narges entered Canada on December
10, 2003. She was followed by her mother and sister on June 18, 2004. All
three were granted landed immigrant status on that date and subsequently
applied for Canadian Citizenship. All three applications were approved by
Citizenship Judge Angelo Persichilli on November 7, 2013.
[2]
The Minister of Citizenship and Immigration (the
Minister) has appealed these decisions under former subsection 14(5) of the Citizenship
Act, RSC, 1985, c C-29 (the Act). The Minister seeks an order setting
aside these decisions and returning all three matters for reassessment on the
ground that the Citizenship Judge, in each case, (i) failed to articulate which
of the three residency tests was used, (ii) erred when he concluded that the
Respondents had satisfied the residency requirement set out in subsection
5(1)(c) of the Act, and (iii) failed to provide adequate reasons in support of
his decisions.
[3]
All three appeals were heard together. For the
reasons that follow, these appeals are granted. The present Judgment and
Reasons will be filed in Court dockets T-2117-13, T-2-14 and T-3-14.
I.
Background
[4]
According to subsection 5(1)(c) of
the Act, the Minister shall grant citizenship to any citizenship applicant who
is a permanent resident within the meaning of the Immigration
and Refugee Protection Act, and has, within the four years immediately
preceding the date of his or her application, accumulated at least three years –
or 1095 days - of residence in Canada.
A.
Khadijeh Nezam-Mafi
[5]
Ms. Nezam-Mafi is retired and married to a
Canadian citizen. She filed her application for Canadian citizenship on
January 30, 2010. The relevant four-year period for the purposes of
establishing the residency requirement (the Residency period), ran, in her
case, from January 30, 2006 to January 2010.
[6]
In her citizenship application, Ms. Nezam-Mafi
declared 350 days of absence from Canada, leaving her slightly above the 1095
day-threshold of physical presence in Canada. She submitted two passports to
the Citizenship and Immigration Canada (CIC) as evidence of her presence in
Canada. However, these passports left a gap of 771 unaccounted days within Ms.
Nezam-Mafi’s Residency period. That two year gap was apparently covered by a
third passport but that passport was not provided to CIC by Ms. Nezam-Mafi on
the ground that she had left it at her residence in Iran.
[7]
According to the record, this information about
the missing passport was put by CIC to the Citizenship Judge. It was further
put to the Citizenship Judge that there were insufficient port stamps as well
as illegible stamps in the other two passports to verify what Ms. Nezam-Mafi
had declared regarding her absences from Canada during the Residency period.
[8]
In approving Ms. Nezam-Mafi’s citizenship
application, the Citizenship Judge noted he was satisfied that Ms. Nezam-Mafi
had “cleared the concerns about the two year gap in
the two relevant passports” by explaining that her family was the victim
of a fraud in Iran and that the third passport had to be filed as evidence for
the prosecution of the suspected swindlers. With respect to this “gap” issue, the Citizenship Judge further asked for
additional information, namely the Integrated Customs Enforcement System (ICES)
report recording her entries into Canada as well as a translation of the
passports filed by Ms. Nezam-Mafi. He noted that aside from minor
discrepancies, the ICES report confirmed the absences reported in the
Citizenship application.
[9]
Then, under the heading “Decision”, the Citizenship Judge wrote the following:
Considering all of the above, considered
that the applicant complied with the request of more documentation, on the
balance of probabilities and based on my careful assessment of the applicant’s
testimony, as well as my consideration of the information and evidence before
me, I am satisfied that the applicant has established residence in Canada and
complies with the Citizenship Act. For all of the above I approve the
application for citizenship of Khadijeh Nezam-Mafi.
B.
Narges and Niloufar
[10]
Narges and Niloufar applied for Canadian
citizenship a year apart. At the time, they were both full-time students. Their
respective Residency periods were October 10, 2005 to October 10, 2009 and November
4, 2006 to November 4, 2010.
[11]
In her citizenship application, Narges declared
having been absent from Canada for a total of 321 days over the course of her
Residency period. In the Residency Questionnaire she subsequently filled, that
figure went up to 732 days, which meant that she was outside Canada for a
longer period of time than she was in Canada during her Residency period.
[12]
Similarly, Niloufar first declared having been
absent from Canada for a total of 581 days and then changed that figure to 729
days in her Residency Questionnaire. That meant that she had spent as much
time outside Canada as in Canada during the four-year period immediately
preceding the filing of her application for citizenship.
[13]
As was the case for the mother, the Citizenship
Judge indicated in his notes having asked for the ICES report on Narges’ entries
into Canada “because she has only 1,033 days of
physical presence in Canada during the relevant time”. The Citizenship
Judge indicated that aside for one exception, which “would
increase the days of absence of 5 days”, he was satisfied that
the ICES report confirmed “the travel pattern
declared in the original application”. He also made notes regarding the
Respondent’s studies, her source of income, the family she has in Canada and
abroad, her physical presence in Canada, the passports issues and the place of
residence while in Canada.
[14]
The Citizenship Judge’s actual decision on
Narges’s application was delivered in the exact same terms as that of her
mother.
[15]
The decision regarding Niloufar’s citizenship
application was rendered in slightly different terms. It reads as follows:
Considering all of the above, on the balance
of probabilities based on my careful assessment of the applicant’s testimony,
as well as my consideration of the information and evidence before me and
cross-info obtained during the interview with the applicant’s mother (KHADIJEH
NEZAM-MAFI - FILE No 3906070), I am satisfied that the applicant has
established residence in Canada and complies with the Citizenship Act.
[16]
The “above”, consisted
of the following three-bullet notes:
- The applicant is
a full time student.
- She applied
along with other members of the family but her application was sent back
because some documents were missing. When she filed again, the other
members were already scheduled for tests.
- The reason why
she has less days of physical presence that the other members of her
family is related to the delay with her application. She went to New-York
for dance classes immediately after the first application but, because she
had to re-apply.
II.
Issue and Standard of Review
[17]
The sole issue to be resolved in this matter is whether
the Citizenship Judge’s decisions in these three cases warrant intervention by
this Court. In order to answer that question, I have applied the standard of
reasonableness which is the standard of review applicable in citizenship
appeals dealing with the residency requirement (Saad v Canada (Minister of
Citizenship and Immigration), 2013 FC 570, 433 FTR 174, at para 18, and see
also Canada (Minister of Citizenship and Immigration) v Rahman, 2013 FC
1274 at para 13; Balta v Canada (Minister of Citizenship and Immigration),
2011 FC 1509, 403 FTR 134 at para 5; Canada (Minister of Citizenship and
Immigration) v Baron, 2011 FC 480, 388 FTR 261 at para 9; Canada
(Minister of Citizenship and Immigration) v Diallo, 2012 FC 1537, 424 FTR
156 at para 13; Huang v Canada (Minister of Citizenship and Immigration) 2013
FC 576 at paras 24 to 26).
[18]
As is well established, the standard of
reasonableness not only requires that the decision at issue fall within a range
of possible, acceptable outcomes defensible in respect of the facts and law,
but it also requires the existence of justification, transparency and
intelligibility within the decision-making process (Dunsmuir v New
Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190, at para 47).
III.
Analysis
[19]
According to the
jurisprudence of this Court, three different
tests are available to Citizenship Judges in assessing the Act’s residency
requirement in any given case (Sinanan v Canada (Minister of Citizenship and
Immigration) 2011 FC 1347 at paras 6 to 8; Huang, above, at paras 17
and 18).
[20]
The first test involves the strict counting of
days of physical presence in Canada which must total 1095 days in the four
years preceding the application. It is often referred to as the quantitative
test or the Pourghasemi test (Pourghasemi (Re) (FCTD) [1993] 62
FTR 122, [1993] FCJ No 232 (QL)).
[21]
The second test is less stringent. It
recognizes that a person can be resident in Canada, even while temporarily
absent, if there remains a strong attachment to Canada. This test is generally
known as the Re Papadogiorgakis test (Re Papadogiorgakis, [1978] 2 FC 208, [1978] FCJ No 31 (QL)).
[22]
The third test builds on the second one by
defining residence as the place where one has centralized his or her mode of
living. It is described in the jurisprudence as the Koo test (Re Koo, [1993] 1 FC 286, 59 FTR 27; see also Paez v
Canada (Minister of Citizenship and Immigration) 2008 FC 204 at para 13, Sinanan,
above, at paras 6 to 8; Huang, above, at paras 37 to 40). That test is
built around six factors:
- was the
citizenship applicant present in Canada for a long prior to recent
absences which occurred immediately before the application for
citizenship;
- where are the
applicant’s immediate family and dependants (and extended family)
resident;
- does the pattern
of physical presence in Canada indicate a returning home or merely
visiting the country;
- what is the
extent of the physical absences – if an applicant is only a few days short
of the 1095-day total, it is easier to find deemed residence than if those
absences are extensive;
- is the physical
absence caused by a clearly temporary situation such as employment as a
missionary abroad, following a course of study abroad as a student,
accepting temporary employment abroad, accompanying a spouse who has
accepted temporary employment abroad; and
- what is the
quality of the connection with Canada: is it more substantial that that
which exists with any other country,
(Re
Koo, at pages 293-294)
[23]
The last two tests are often referred to as
qualitative tests (Huang, above at para 17).
[24]
The dominant view in the case law is that citizenship
judges are entitled to choose which test they desire to use among these three
tests and that they cannot be faulted for choosing one over the other (Pourzand
v Canada (Minister of Citizenship and Immigration) 2008 FC 395 at para 16; Xu
v Canada (Minister of Citizenship and Immigration) 2005 FC 700 at paras 15
and 16; Rizvi v Canada (Minister of Citizenship and Immigration) 2005 FC
1641 at para 12).
[25]
However, they can be faulted if they fail to
articulate which residency test was applied in a given case (Dina v Canada
(Minister of Citizenship and Immigration) 2013 FC 712, 435 FTR 184, at para
8).
[26]
As is well settled, administrative
decision-makers are required to provide reasons so as allow the reviewing court
to understand why they made their decisions and permit it to determine whether
the conclusions reached are within a range of acceptable outcomes defensible
both on the facts and the law (Dunsmuir, above at para 47; Newfoundland
and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62, [2011] 3 S.C.R. 708, at para 16; Canada (Minister of
Citizenship and Immigration) v Saad, 2011 FC 1508, at para 16-17).
[27]
Here, I find that in all threes instances, the
decision of the Citizenship Judge lacks justification, transparency and
intelligibility either because the judge failed to articulate the residency
test that was applied or because his reasons in each case do not otherwise
allow the Court to understand why he made the decision.
A.
The decisions regarding Narges and Niloufar
[28]
It is undisputed that the Citizenship Judge did
not expressly state or articulate which of the three residency tests was used
in his assessment of both Narges and Niloufar’s citizenship applications.
[29]
Both Narges and Niloufar claim that on the face
of the record, it is clear that the Citizenship Judge did not apply the
quantitative test but rather conducted a qualitative assessment of their
applications as it was clear from the outset that they had not been physically
present in Canada for the minimum threshold of physical presence contemplated
by subsection 5(1))c) of the Act. They contend that based on the evidentiary
record that was before him, it was open to the Citizenship Judge to conclude
that they both qualitatively met the Act’s residency requirement.
[30]
The difficulty with that argument, as the
Minister points out in his written submissions, is that in order to be clear,
precise and intelligible, as required by Dunsmuir, above, reasons for
decisions in the citizenship context must, at the very least, indicate which
residency test was used and why that test was met or not (Canada v Jeizan
2010 FC 323, 386 FTR 1, at para 17-18; Dina, above, at para 8; Canada
(Minister of Citizenship and Immigration) v Al-Showaiter, 2012 FC 12, at
para 21, Canada (Minister of Citizenship and Immigration) v Baron, 2011
FC 480, 388 FTR 261, at para 13-18, Saad, above, at paras 18-24; Canada
(Minister of Citizenship and Immigration) v Bani Ahmad, 2014 FC 898,
at para 25).
[31]
The provision of reasons in the citizenship context
“assumes a special significance” as the
Minister must grant citizenship in the event of a positive recommendation by a citizenship
judge (Canada (Minister of Citizenship and Immigration) v Mahmoud, 2009
FC 57, at par 6; Canada (Minister of Citizenship and Immigration) v
Wong, 2009 FC 1085, at para 17-18). Since the Minister has no other remedy
against such a positive recommendation than to appeal to this Court, the reasons
provided in support of it, which are statutorily required (subsections 14(2)
and 3 of the Act), “should be sufficiently clear and
detailed so as to demonstrate to the Minister that all relevant facts have been
considered and weighed and that the correct legal tests have been applied”
(Mahmoud, above at para 6). At a minimum, this includes indicating
which one of the three legal tests available to assess the residency
requirement was used and why it was satisfied.
[32]
In a context where, through judicial precedent,
not one but three interpretations of a statutory provision can be picked and
chosen by a decision-maker and in any given case, the chosen interpretation has
to be clearly identified in the reasons for decision. For the parties and the
reviewing court, identifying that interpretation should not amount to a
guessing game. In such a peculiar context, there is no place for
approximations. This goes, in my view, to the integrity of the legislative
scheme respecting the granting of Canadian citizenship.
[33]
Even assuming here that it can be inferred from the
Citizenship Judge’s notes that he did not apply the physical presence test with
respect to both Narges and Niloufar’s applications, I see nothing in these
notes that indicate which one of the two qualitative tests was applied. In the
case of Niloufar, the notes are particularly unintelligible as it is impossible
to relate them, in any comprehensive way, to either of these two tests. Furthermore,
the reference in the decision to the “cross-info
obtained during the interview with the applicant’s mother”, is not
helpful to Niloufar’s case as the nature of this “cross-info”
is not specified, making it therefore impossible to understand how it might
have contributed to the Citizenship Judge being satisfied that Niloufar met the
residency requirement.
[34]
In the case of Narges, the Citizenship Judge
was also clearly wrong in finding that she had 1033 days of physical presence
in Canada during her Residency period. The record that was before him showed
that Narges only had 728 days of physical presence, which means that she had
been in Canada less that half of her Residency period. That figure was
significant, and so was the Citizenship Judge’s error. Given that a citizenship
applicant’s physical presence in Canada remains a factor of
“primary importance” even in a qualitative analysis (Jeizan, above, at
para 28), the decision to approve Narges’ application lacks the qualities to
make it reasonable as it fails to explain why Narges satisfied the residency
requirement despite spending that much time outside Canada.
[35]
The Citizenship Judge’s reasons in both cases do
not indicate a grasp of the issues raised by both the evidence and the law.
They are wholly inadequate.
[36]
Counsel for Narges and Niloufar attempted to
compensate for the Citizenship Judge’s decisions by explaining the judge’s
reasoning in referring to the evidentiary record. This sort of reconstruction
cannot be done. As Justice Yves de Montigny stated in Jeizan, above, at
para 20, a decision-maker’s reasoning should not require additional
explanations (see also Saad, above, at para 23). When the only way to
understand the Citizenship Judge’s reasons is to conduct a de novo
examination of the record, the decision is not likely to meet the requirements
for transparency, justification and intelligibility set out in Dunsmuir,
above (Korolove v Canada (Minister of Citizenship and Immigration), 2013
FC 370, 430 FTR 283, at para 47). Indeed, it is not the role of this Court to
re-assess the application of a failed citizenship claimant and to make a
decision in place of the Citizenship Judge (Saad, above, at para 26).
B.
The decision regarding Ms. Nezam-Mafi
[37]
The decision regarding Ms. Nezam-Mafi also fails
to identify which of the three residency tests was used. Ms. Nezam-Mafi
contends that it is clear from his notes that the Citizenship Judge applied the
physical presence test in her case as he referred to the fact that “she has 1,110 days of physical presence in Canada during
the relevant period”, which places her above the minimal threshold of
physical presence contemplated by subsection 5(1)(c) of the Act.
[38]
As the Minister points out, the choice of the
test used remains unclear as the Citizenship Judge also referred to qualitative
factors by noting Ms. Nezam-Mafi “is retired and
married to a Canadian citizen” and that “she
was living with her daughters in Montreal and Waterloo (where they were
attending university)”.
[39]
But even assuming that it can be inferred from
his notes that the Citizenship Judge assessed Ms. Nezam-Mafi’s citizenship
application using the physical presence test, two problems remain. First, there
is no discussion in the decision or the notes concerning the contradictory
explanations Ms. Nezam-Mafi gave about the non-availability of the missing
passport. The Citizenship Judge accepted the explanation she gave at the
hearing of her application that that passport was missing because it had been
filed as evidence in a fraud case in Iran. This contradicted the explanation
given to CIC that this passport had been left at her residence in Iran.
[40]
Passports are important for calculating the
residence requirement (Canada (Minister of Citizenship and Immigration) v
Rahman, 2013 FC 1274, at para 51-53). The missing passport was of material
importance to the case of Ms. Nezam-Mafi as it covered half of her Residency
period. This two-year gap was significant in a physical presence test
analysis. As it has been affirmed on many occasions by this Court, Canadian
citizenship is a privilege that ought not to be granted lightly and the onus is
on citizenship applicants to establish, on a standard of balance of
probabilities, through sufficient, consistent and credible evidence, that they
meet the various statutory requirements in order to be granted that privilege (Canada
(Minister of Citizenship and Immigration) v Elzubair, 2010 FC 298 at paras
19 and 21; Canada (Minister of Citizenship and Immigration) v El
Bousserghini, 2012 FC 88 at para 19; Canada (Minister of Citizenship and
Immigration) v Dhaliwal, 2008, FC 797 at para 26; Abbas v Canada
(Minister of Citizenship and Immigration), 2011 FC 145 at para 8; F.H. v
McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41).
[41]
The two different explanations provided by Ms.
Nezam-Mafi as to the absence of that passport were before the Citizenship Judge.
There is nothing in his notes or decision which permit the Court to understand
if and how he dealt with these contradictory statements and why he preferred
the explanation given at the hearing. On such an important aspect of Ms.
Nezam-Mafi’s application, clear and detailed reasons were required so as to
demonstrate that all relevant facts had been considered. This requirement was
not met. In addition, there is no evidence on record as to why Ms. Nezam-Mafi
did not provide the missing passport after the court case in Iran concluded in
2012.
[42]
Ms. Nezam-Mafi contends that she provided
evidence establishing that she was physically present in Canada during the
two-year period covered by the missing passport. There is no reference
whatsoever to that evidence in the Citizenship Judge’s notes or decision. Again,
this amounts to conducting a de novo examination of the record in order
to understand the Citizenship Judge’s reasons. As I indicated previously, this
is not the role of the Court. When a citizenship judge’s reasoning requires
additional explanations in order to be understood, it is a sign that it lacks
justification, transparency and intelligibility.
[43]
Second, I agree with the Minister that the Citizenship
Judge overly relied on the ICES report considering that this report only
records entries into Canada and is not free from error. As a result, CIC could
not even verify the self-declared trips Ms. Nezam-Mafi took during her
Residency period as there were insufficient corroborative port of entry stamps and
entries documented in the ICES report confirming these trips. This information
was put before the Citizenship Judge but there are no mentions in his reasons
indicating that he actually verified when Ms Nezam-Mafi left and returned from
these declared trips.
[44]
As the Minister correctly points out, without
her undisclosed passport and proper analysis of both exits from - and entries into
– Canada regarding the trip Ms. Nezam-Mafi declared in her citizenship
application material, it is unclear how the Citizenship Judge could have
concluded that she had established residence in Canada and complied with the
Act in this respect.
[45]
Again, the decision of the Citizenship Judge, in
the case of Ms. Nezam-Mafi this time, lacks justification, transparency and
intelligibility and does not comply, as a result, with the Dunsmuir
requirements.
[46]
The Minister’s appeal in all three cases is
therefore granted. Given the amendments to the Act which came into force on
August 1, 2014, and which modified the manner in which applications for
citizenship are to be determined by placing the adjudication of such
applications within the ambit of the Minister, the matter will be sent back for
re-determination to the “decision-maker”, rather than to a citizenship judge, as it is to be
re-determined, pursuant to section 35 of the Act, in accordance with the Act,
as it now reads.
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