Dockets: T-157-15, T-158-15
Citation:
2015 FC 1152
Ottawa, Ontario, November 23, 2015
PRESENT: The
Honourable Mr. Justice Gleeson
Docket: T-157-15
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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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KHALID L. ABDUL
MUTTALIB
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Respondent
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Docket: T-158-15
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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DENA
N. MAJEED
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Respondent
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AMENDED JUDGMENT AND REASONS
[1]
These are applications for judicial review by
the Minister of Citizenship and Immigration [the applicant] pursuant to section
22.1 to of the Citizenship Act, RSC 1985, c C-29 [the Act], from the
decisions of a citizenship judge [the Judge] dated January 14, 2015, finding
that the respondents met the residency requirement under paragraph 5(1)(c) of the
Act, and approving their applications for Canadian citizenship.
[2]
On February 18, 2015, upon the applicant’s ex
parte motion in writing, this Court ordered that the applicant may dispense
with the requirement for personal service of the Application for Leave for
Judicial Review and authorized service by courier to the respondents’ last
known home address.
[3]
The respondents have not filed a Notice of
Appearance and did not appear for the hearing of this matter.
[4]
For the reasons that follow, the applications
are allowed.
I.
Background
[5]
The respondents, Khalid L. Abdul Muttalib and
Dena N. Majeed are a married couple and citizens of Iraq. They entered Canada
and received permanent residence status on March 13, 2005. On October 28, 2008
they applied for Canadian citizenship. The relevant period for calculating
their residence in Canada for the purposes of paragraph 5(1)(c) of the Act was
March 13, 2005 – October 28, 2008.
[6]
The respondents’ applications were referred for
a hearing with a citizenship judge based on credibility concerns raised by the
citizenship officer reviewing the respondents’ applications and supporting
documentation.
II.
Decision
[7]
In two separate decisions dated January 14, 2015
the Judge granted the respondents’ applications.
A.
Mr. Muttalib
[8]
The respondent Mr. Muttalib declared 44 days of
absence during the relevant period and 1280 days of presence for a total of
1324 days, exceeding the 1095 days presence threshold required by the Act.
[9]
The Judge notes that Mr. Muttalib had presented
a translation of all foreign stamps in his passport and details Mr. Muttalib’s
explanation of his work history in Canada. The Judge noted the concerns raised
by the citizenship officer: (1) the lack of a passport to cover the period from
September 19, 2006 to January 17, 2008; (2) unreturned and incomplete residence
questionnaires [RQs]; (3) an inaccurate telephone listing; and (4) the absence
of Notices of Assessments indicating income for 2005 and 2006.
[10]
The Judge addressed each of the concerns: (1)
the respondent stated that he did not have a valid passport for the period
September 19, 2006 to January 17, 2008 because he had no need to travel, the
Judge accepted this explanation noting that his presence in Canada was
substantiated by Notices of Assessment and a history of medical claims provided
post hearing; (2) the Judge noted that the respondents’ explanation of never
having received an actual RQ was inconsistent with the documentary record,
however the Judge holds this was evidence of absent mindedness as opposed to a
desire to mislead; (3) The Judge notes that the inaccurate telephone listing
did not raise doubts as to credibility, holding that the listing was an error
that is hard to correct; and (4) the Judge notes that the respondent provided,
post hearing, Notices of Assessment that were consistent with the work history
he provided to the Judge during the hearing.
[11]
On this basis, and applying the physical
presence test for residency as set out by Justice Muldoon in Pourghasemi,
(Re), [1993] FCJ No 232 at paras 4 and 6, 19 Imm LR (2d) 259 (TD) [Pourghasemi],
the Judge concludes that Mr. Muttalib had demonstrated on a balance of
probabilities that he had met the residence requirement under the Act.
B.
Ms. Majeed
[12]
The respondent Ms. Majeed declared 24 days of
absence during the relevant period and 1300 days of presence for a total of
1324 days.
[13]
The Judge undertook a similar analysis with
respect to Ms Majeed. In this case the citizenship officer noted: (1)
unreturned and unfilled RQs; (2) an inaccurately listed absence where the
respondent declared a departure from Canada on April 9, 2005 whereas her
passport showed entry into Saudi Arabia on April 1, 2005; (3) the lack of any
exit stamps from Canada or Saudi Arabia; and (4) The lack of Notices of
Assessment for the years 2005, 2006 and 2008.
[14]
The Judge found that Ms Majeed had relied on her
husband to complete the details of the application and while she did not have
an explanation for the unreturned RQs, the Judge was satisfied that her
husband’s explanations did not raise doubts as to credibility. With respect to
the inaccurate absence from Canada the Judge accepted that this was simply an
error and that the deduction of the additional eight days did not bring the
respondent under the 1095 days of required residence in Canada. The Judge was
satisfied with the explanations and additional documentation provided post
hearing by both the respondent and her husband.
[15]
Applying Pourghasemi, the Judge found on
a balance of probabilities that the Ms. Majeed had also met the residence requirements
under the Act.
III.
Applicant’s Position
[16]
It is the position of the applicant that the
threshold residency requirement was not established with credible evidence. The
evidence before the Judge left too many unanswered questions with respect to
the issue of residency. The applicant further argues that the Judge failed to
adequately engage with the evidence and that the decisions lack sufficient
justification and transparency as a result.
[17]
The applicant argues that much of the evidence
of residence was passive and did not substantiate the respondents’ claim of
residency in Canada. In this regard, the applicant points to the respondents’
failure to provide a completed RQ and to provide a traveller history report
from the Canada Border Services Agency.
[18]
In addition, the applicant points to Mr.
Muttalib’s low income during the relevant period, income which the applicant
submits would not appear to allow him to support his wife and ultimately two
children. Despite the low income levels the applicant notes that the respondents
purchased a condominium during this period. The applicant further argues that
the Judge failed to address bank statements and medical records. The applicant
argues that the bank statements demonstrate gaps in regular usage and that
health records demonstrate an absence of health care for Ms. Majeed until the
last eight weeks of her pregnancy in June, 2006.
[19]
The applicant argues that while the Judge states
that all foreign stamps in Mr. Muttalib’s passport had been translated, this is
incorrect. The applicant submits that visas, observations and some stamps were
not in fact translated. The applicant further notes that the Judge failed to
address the absence of re-entry stamps into Canada in either of the
respondent’s passports or a renewal stamp in Mr. Muttalib’s passport. The
renewal stamp indicates the passport was renewed in September 2006 in Iraq with
a revised expiry date of 7/3/2009. The applicant argues this contradicts Mr.
Muttlib’s statement that he did not have a valid passport during this period
because he had no need to travel.
IV.
Respondents’ Position
[20]
As stated above the respondents did not file a
Notice of Appearance or submissions, and did not appear at the hearing.
V.
Issues
[21]
The applicant has identified a single issue:
- Whether the
Citizenship Judge’s finding that the respondents had met the residency
requirement under paragraph 5(1)(c) of the Citizenship Act was
unreasonable.
VI.
Standard of Review
[22]
The applicant submits that the standard of
review of the Judge’s findings that the respondents satisfied the residency
requirement under the Act engages questions of fact and mixed fact and law to
be reviewed on a standard of reasonableness (El Falah v Canada (Minister of
Citizenship and Immigration), 2009 FC 736 at para 14, 183 ACWS (3d) 916; Farag
v Canada (Minister of Citizenship and Immigration), 2013 FC 783 at paras
24-26). I agree.
VII.
Analysis
[23]
I concur with the applicant’s position, the
Judge erred in failing to engage with the evidence and as a result failed to
identify and address evidence that contradicted the conclusions reached. The
failure to do so has not allowed the Court to understand why the decision was
made.
[24]
In considering the question of residency, the
Judge adopted and relied on the residency test in Pourghasemi. This test
involves the strict counting of days of physical presence in Canada and
requires that an applicant demonstrate 1095 days of actual presence in Canada
during the four years preceding the application for citizenship (Canada
(Minister of Citizenship and Immigration) v Bayani, 2015 FC 670 at para 20
[Bayani]). When relying on the physical presence test to satisfy the
residency requirement documentation evidencing exits from Canada and re-entries
are important as they form the documentary basis for calculating days of presence
(Bayani at para 40).
[25]
In this case passports were provided but not all
pages of Mr. Muttalib’s were translated and neither document reflected
re-entries to Canada to coincide with the respondents’ reported absences. The
Judge is of the mistaken belief that “The Applicant
presented translation of all foreign stamps in his passport”. In
addition, neither of the respondents provided a travel history report, despite
having been requested to do so. The Judge does not acknowledge or address these
obvious gaps in the respondents’ travel history. Further, the Judge fails to
recognize, and as a result does not address, the inconsistent evidence relating
to whether or not Mr. Muttalib was in possession of a valid passport between
September 19, 2006 and January 17, 2008. Each of these matters is potentially
of direct relevance to assessing whether or not the respondents have met their
onus of establishing, on a balance of probabilities, that they have satisfied
the residency requirement established in the Act and are potentially
contradictory of the conclusion reached (Cepeda-Gutierrez v Canada (Minister
of Citizenship and Immigration), [1998] FCJ No 1425 at paras 15, 17, 157
FTR 35 (TD).
[26]
The evidentiary gaps in the respondents’ travel
history take on additional import when considering the respondent’s
corroborative evidence of residency. The medical records evidence indicates Ms.
Majeed received no publicly insured obstetrics care until late in her
pregnancy. Banking and credit card activity demonstrates limited or no usage
for periods of time and Mr. Muttalib’s reported income does not appear to be
sufficient to support his family and finance a condominium. Again these
circumstances are potentially contradictory of the conclusion reached, but not
addressed by the Judge.
[27]
Of course it is well-established that the
validity of a decision will not be impugned on a reasonableness analysis for
not addressing all arguments and details a reviewing judge might have preferred
the decision-maker had addressed. However, the reasons must be such that they
allow the reviewing court to understand why the decision was made and determine
if it falls within the range of acceptable outcomes (Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), [2011]
3 SCR 708 at para 16). The comments of my colleague Justice Danièle
Tremblay-Lamer in Canada (Minister of Citizenship and Immigration) v Matar,
2015 FC 669 at para 31 apply here:
[31] Had the Citizenship Judge
indicated that he weighed certain evidence more heavily than other evidence,
the Court could possibly have concluded that he considered the discrepancies (Safi
at para 44). However, I am unable to understand the Citizenship Judge’s
reasoning and to understand which factors and evidence led him to be satisfied
that the respondent had been in Canada for the requisite number of days. As
argued by the respondent, there are possible explanations for the discrepancies
in the evidence raised by the applicant. Without acknowledgement of these
discrepancies in the reasons, it is impossible to know whether the Citizenship
Judge was aware of them and considered the evidence critically in this regard.
As such, the reasons reveal little to assist the Court in assessing the
reasonableness of the outcome.
[28]
In summary, after reviewing the decisions within
the context of the record, I am unable understand why the decisions were made
or determine if they fall within the range of acceptable outcomes.
[29]
For these reasons the application is allowed.
The applicant did not identify a question for certification.
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