Docket: T-673-15
Citation:
2016 FC 42
Ottawa, Ontario, January 14, 2016
PRESENT: The
Honourable Mr. Justice O'Keefe
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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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JAFFER ALI
MAHER
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
Pursuant to section 22.1 of the Citizenship
Act, RSC 1985, C-29, as amended [the Act], the applicant, the Minister of
Citizenship and Immigration, asks the Court to set aside the decision of a
citizenship judge, dated April 1, 2015, that approved the citizenship
application of the respondent, Jaffer Ali Maher, pursuant to subsection 5(1)
of the Act.
I.
Facts
[2]
The respondent became a permanent resident of
Canada on December 9, 2004. The decision recounts that the respondent is a
mechanical engineer. He is originally from India and came to Canada in 2004
from Dubai, United Arab Emirates, with his family. He continued to work in
Dubai until 2007, when he was offered a job in Canada by his company, Eagle
Burgmann. He worked at the Canadian office from February 2007 to July 2009. He
went on employment insurance in July 2009. He left for Dubai, being unable to
find work in Canada in April 2010 after applying for citizenship.
[3]
He worked in Dubai from 2010 to 2012, when he
returned to Canada to join his family. In 2013, he found a job in the
engineering field in Fort McMurray, Alberta.
[4]
The respondent submitted his application for
Canadian citizenship on April 3, 2010. The relevant period for the purposes of
the residency requirement under paragraph 5(1)(c) of the Act is therefore
between April 3, 2006 and April 3, 2010 (the four years preceding the
application for citizenship).
[5]
In his application, the respondent stated that
he was physically present in Canada for 1,074 days and outside of Canada for
386 days during the relevant period.
[6]
In his residence questionnaire, dated December
29, 2011, the respondent confirmed that he was physically present in Canada for
1,074 days and outside of Canada for 386 days during the relevant period.
[7]
An officer of Citizenship and Immigration Canada
[the reviewing officer] reviewed the respondent’s application, prepared a File
Preparation and Analysis Template and recommended a hearing. The reviewing
officer noted several concerns with the application, including that the
applicant re-entered Canada two days before the citizenship test and left
immediately following the test, that the applicant’s LinkedIn page indicated
that he was working for the company Fluidyne SEALS INC in Dubai beginning in
December 2009, while he declared being unemployed from August 2009 to March
2010 in his residence questionnaire and that six of the applicant’s declared
trips were off by up to three days, which leads to a seven day discrepancy
between his declared absences and absences per the ICES report. The reviewing
officer also noted that the applicant’s spending abroad matches his declared
absences.
[8]
The respondent attended a hearing before the
citizenship judge on March 12, 2015.
II.
Decision
[9]
In a decision dated April 1, 2015, the
citizenship judge found that the respondent met the residence requirement under
paragraph 5(1)(c) of the Act and approved his application for citizenship.
[10]
The citizenship judge noted the respondent’s
employment history, that he purchased a house in Canada in 2007 and that his
wife and children are Canadian citizens. The citizenship judge also noted that
the respondent provided copies of his notices of assessment and health records
at the hearing.
[11]
The citizenship judge further noted that he was
able to read the passport stamps for the relevant period from the passports
which the reviewing officer had stated were illegible.
[12]
The citizenship judge explained that the
respondent bears the burden of proving that he meets the residency
requirements. He noted that the respondent has established his residence in
Canada and the shortage of days in his application is due to his honest mistake
and applying a bit early. The citizenship judge indicated that the respondent
lives in Canada, has no activity outside of Canada and his family lives in Canada.
[13]
The citizenship judge applied the test for
residency from Koo (Re) (1992), 59 FTR 27 (FCTD) [Koo],
explaining that that test does not require physical presence for the whole
1,095 days and which assesses where the citizenship applicant “regularly, normally or customarily lives” or whether
Canada is the country in which the applicant has “centralized
[his] mode of existence.” He then laid out the six questions from Koo
that assist in this determination and answered each question in the
respondent’s favour.
[14]
The following responses by the citizenship judge
have given rise to particular issues in this judicial review:
1. Was the individually physically
present in Canada for a long period prior to recent absences which occurred
immediately before the application for citizenship?
YES
[…]
4. What is the extent of the
physical absences - if an applicant is only a few days short of the 1,095 total
it is easier to find deemed residence than if those absences are extensive?
YES, Canada is his home and he has been working
in Canada in his own engineering field in Alberta. There is a letter from the
employer on file
5. 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?
Yes, he has only 1074 days of physical
presence in Canada during the relevant period, short of 21 days. He met the
basic residence requirement but applied a bit too early in order to meet the
physical presence requirement of 1095 days.
III.
Issues
[15]
The applicant raises the following issues:
1.
There are material errors on the face of the
decision.
2.
The citizenship judge failed to assess a
contradiction in the evidence.
[16]
The applicant submits that, as a result of these
errors, the reasons are inadequate.
[17]
The respondent has not made any written submissions.
IV.
Applicant’s Written Submissions
[18]
The applicant submits that the decision lacks
justification, transparency and intelligibility and is therefore unreasonable.
The applicant submits that the reasons do not allow a reviewing party to
understand the decision or the Court to assess the reasonableness of the
decision (Canada (Minister of Citizenship and Immigration) v Jeizan,
2010 FC 323 at para 27 [Jeizan]). The applicant makes this argument on
the basis that there are material errors on the face of the decision and the citizenship
judge failed to address a contradiction on the record.
A.
Material Errors on the Face of the Decision
[19]
The applicant submits that because the citizenship
judge only wrote “Yes” in response to the first
question laid out in Koo, the reasons are not actually reasons and do
not allow a reviewing party to understand why the decision was made.
[20]
Further, the applicant submits that the evidence
contradicts the citizenship judge’s finding on this factor because the
respondent was absent from Canada for a long period (306 days) prior to a two year
period of regular, short absences from Canada.
[21]
The applicant also submits that the analysis of
the fourth factor, of “the extent of the physical
absences” does not respond to the question posed.
[22]
Further, the applicant submits that the citizenship
judge’s response to this question relies on the respondent’s employment after
the relevant period, which is an irrelevant factor. Its consideration is a
reviewable error.
[23]
The applicant further submits that the analysis
of the fifth factor, of whether the respondent’s absences were “a clearly temporary situation”, was contradictory and
unreasonable. The applicant acknowledges that the citizenship judge may have
intended this as the analysis of the fourth factor, but argues that the
respondent cannot fail to accrue 1,095 days of physical presence and meet the
basic requirement.
[24]
Further, the applicant argues that it was
unreasonable for the citizenship judge to accept the explanation that the 21
day shortfall was a result of him applying a bit early, when it is clear from
the evidence that he left Canada for employment in Dubai immediately after
signing the application form and did not return for 254 days. He would not meet
the 1,095 day requirement until January 2011.
B.
Failed to Address Contradiction
[25]
The applicant submits that it is a reviewable
error for a citizenship judge to fail to turn his mind to contradictions in the
evidence that undermine the credibility of an applicant (Canada (Minister of
Citizenship and Immigration) v Vijayan, 2015 FC 289 at para 65 [Vijayan]
and Canada (Minister of Citizenship and Immigration) v Baron, 2011 FC
480 at para 17 [Baron]). The applicant submits that the citizenship judge
committed this error by ignoring the reviewing officer’s note that the
respondent’s LinkedIn profile contradicted his claimed employment history.
[26]
The respondent made oral submissions at the
hearing with respect to his absences from Canada and that these absences were
business related. The respondent also made submissions in relation to his
LinkedIn profile.
V.
Analysis and Decision
(1) Standard
of Review
[27]
The standard of review is reasonableness (Jeizan
at para 12; Canada (Minister of Citizenship and Immigration) v Safi,
2014 FC 947 at paragraphs 15 and 16 [Safi]).
[28]
Reasonableness is concerned mostly with the
existence of justification, transparency and intelligibility within the
decision-making process. It is also concerned with whether the decision falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law (Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph
47).
(2) Adequacy
of Reasons
[29]
Many of the applicant’s arguments relate to the
adequacy of the citizenship judge’s reasons. Madam Justice Catherine Kane
provided a summary of the adequacy of reasons in the context of a decision of a
citizenship judge in Safi:
[48] The Minister needs to be able to
assess whether the decision should be appealed, as does the applicant where the
Application is refused, and the Court needs to be able to determine whether any
appeals should be granted.
[49] As noted in Jeizan by
Justice de Montigny at para 17:
[17] Reasons for decisions are
adequate when they are clear, precise and intelligible and when they state why
the decision was reached. Adequate reasons show a grasp of the issues raised by
the evidence, allow the individual to understand why the decision was made and
allow the reviewing court to assess the validity of the decision: see Lake
v. Canada (Minister of Justice), 2008 SCC 23, [2008] S.C.J. No. 23 at para.
46; Mehterian v. Canada (Minister of Employment and Immigration), [1992]
F.C.J. No. 545 (F.C.A.); VIA Rail Canada Inc. v. National Transportation
Agency, [2001] 2 F.C. 25 (F.C.A.), [2001] 2 F.C. 25 (C.A.), at para. 22; Arastu,
above, at paras. 35-36.
[50] In the present case, the
Citizenship Judge’s remarks are more in the nature of “notes to self” about the
follow-up needed and do not reveal any reasoning.
[51] I have considered the guidance of Newfoundland
Nurses and have looked to the record to supplement and support the outcome.
The notations do not reveal whether the Citizenship Judge critically examined
the discrepancies in the documents and the passport stamps or actually had the
ability to determine the dates of the stamps, the country that issued them, or
the language in which these were stamped. This type of reliance on the record to
supplement the decision goes well beyond what was contemplated in Newfoundland
Nurses and requires the Court to speculate about whether the Citizenship
Judge was aware of and considered the problems with the evidence. The Court
cannot rewrite the decision to provide reasons which simply are not there (Pathmanathan).
(3) Analysis
of Koo Factors
[30]
It is not in dispute that the citizenship judge
stated the test from Koo correctly. Koo provides:
The conclusion I draw from the jurisprudence
is that the test is whether it can be said that Canada is the place where the
applicant “regularly, normally or customarily lives”. Another formulation of
the same test is whether Canada is the country in which he or she has centralised
his or her mode of existence. Questions that can be asked which assist in such
a determination are:
(1) was the individual physically present in
Canada for a long period prior to recent absences which occurred immediately
before the application for citizenship;
(2) where are the applicant’s immediate
family and dependents (and extended family) resident;
(3) does the pattern of physical presence in
Canada indicate a returning home or merely visiting the country;
(4) what is the extent of the physical
absences - if an applicant is only a few days short of the 1,095 day total it
is easier to find deemed residence than if those absences are extensive;
(5) 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;
(6) what is the quality of the connection
with Canada: is it more substantial than that which exists with any other
country.
[31]
In the analysis of the first question from Koo,
the applicant submits that the analysis is deficient because the respondent’s
long absence from Canada was not recent and was at the beginning of the
relevant period and the respondent had a number of short-term absences throughout
the relevant period.
[32]
I agree that the reasons and record do not
assist in determining why the citizenship judge answered “Yes” to this question and are therefore inadequate.
Contrary to the citizenship judge’s finding, the long absence was not recent
and the shorter absences occurred throughout the relevant period and were not
recent; most were at the beginning of the relevant period in 2007.
[33]
On the fourth and fifth questions, I think it is
clear from the reasons that the citizenship judge mistakenly listed the answer
to the fourth question beneath the fifth question and vice versa. The answer to
the fourth question directly responds to the fifth question and the answer to
the fifth question directly responds to the fourth question. Generally, a typographical
error that does not reflect a misunderstanding of the evidence is not a
reviewable error (Caicedo Molina v Canada (Minister of Citizenship and
Immigration), 2007 FC 289):
[18] Justice Russell in Petrova v.
Canada (Minister of Citizenship and Immigration) (2004), 251 F.T.R. 43,
2004 FC 506, addressed the implications of a typographical error in a
decision-maker’s reasons under review by the Court. At paragraph 51 of Petrova,
above, Justice Russell writes: “[w]hen a mistake is typographical in nature,
the Court should not interfere with the decision, especially if the error does
not appear to have been a misunderstanding of the evidence.” This proposition
was recently followed in a decision of Mr. Justice Noël in Lu v. Minister of
Citizenship and Immigration, 2007 FC 159.
[34]
I will therefore assess the reasonableness of
the responses assuming this was a typographical error.
[35]
On the fourth question, I disagree with the
applicant that it is unclear what the citizenship judge meant when he stated
that the respondent “met the basic residence
requirement.” The jurisprudence is clear that the Koo analysis
involves two steps (Canada (Minister of Citizenship and Immigration) v Ojo,
2015 FC 757 [Ojo], the first of which could easily be understood as a “basic residence requirement.”
[25] The jurisprudence establishes a
two-step test for assessing residence. First, the Citizenship Judge must
decide whether the person established a residence in Canada prior to or at the
beginning of the relevant time period. This is a threshold question which must
be answered before proceeding to the second step of the test: Canada
(Minister of Citizenship and Immigration) v Chang, 2013 FC 432 at para 4 [Chang];
Canada (Minister of Citizenship and Immigration) v Udwadia, 2012 FC 394
at para 21 [Udwadia].
[26] If the first step is met, the
Citizenship Judge must assess whether the person’s residency qualifies him for
Canadian citizenship. The jurisprudence accepts three different tests for this
determination. The Koo test is one of them. Again, the applicant does
not dispute that it was open to the Citizenship Judge to apply this test.
[27] In the case at bar, the
Citizenship Judge never explicitly addressed the threshold question. She went
immediately to the six Koo questions without asking whether Mr Ojo ever
became resident in Canada. As my colleague Justice O’Reilly stated in Udwadia,
above, at para 22, it is incumbent on a Citizenship Judge to ascertain whether
the person before her established a residence in Canada and to “determine when
that was”. In the decision under review, this was not accomplished.
[emphasis added]
[36]
However, I agree with the applicant that the
evidence on the record does not support that the respondent applied early.
Rather, the evidence supports that the respondent applied for citizenship on
the day (April 3, 2010) he left Canada for an extended period of time (254
days) for a new job in Dubai. Additionally, the citizenship judge appears to
rely heavily on this finding in reaching his decision. He states before applying
the Koo test that the respondent’s shortage of days was due to his
honest mistake and applying a bit early and again states that the respondent’s
shortage of days was due to applying a bit early in his analysis of the fourth
factor.
[37]
On the other hand, I note that the extent of the
physical absences was short, only a 21 day shortfall. If one disregards the
above error in the reasons, the record does demonstrate that a positive
response to this question was reasonable.
[38]
On the fifth question, I agree with the
applicant that the citizenship judge relied on evidence from outside the
relevant period to draw his conclusion (i.e. the evidence that the respondent
works in his engineering field in Alberta, a position he has only held since
2013). The respondent’s present employment does indicate that his employment in
Dubai, during the relevant period, was temporary in a broad sense, because he
eventually returned to Canada. However, the question posed by Koo asks
whether the physical absence was due to a clearly temporary situation. There is
no evidence that his employment in Dubai was a temporary contract. As a result,
in my opinion, it is not clear from the reasons and the record how the citizenship
judge drew his conclusion on the fifth factor.
(4) Ignoring
Evidence
[39]
On the issue of ignoring the evidence relating
to the respondent’s LinkedIn page, the citizenship judge is presumed to have
considered all of the evidence (Simpson v Canada (Attorney General),
2012 FCA 82). It was reasonable for the citizenship judge to prefer the
evidence of the respondent’s travel history (such as his passport, ICES report
and consistent spending abroad) to his LinkedIn page, which has no checks or
balances on its accuracy.
[40]
The applicant cited Vijayan and Baron
for the proposition that “[a] Citizenship Judge commits
a reviewable error if he fails to turn his mind to the question of whether
omissions and contradictions in the evidence undermine the credibility of an
individual” (Vijayan at paragraph 65). However, in Vijayan
the omission was a failure to declare 12 absences from Canada and in Baron
there were “significant omissions and contradictions.”
In my opinion, the failure to address a LinkedIn page is not analogous to the
significant omissions and contradictions in Vijayan and Baron.
[41]
I note that a positive finding on each factor
was not required for the citizenship judge to find that the respondent met the
residence requirement, for example, see Ojo at paragraph 32:
I am also of the view that the Citizenship
Judge applied the residence test unreasonably at the second stage, when evaluating
the strength of Mr Ojo’s connection to Canada. The Koo test requires a
Citizenship Judge to make findings in relation to six factors and then to
balance the positive findings against the negative ones. In this case, the
Citizenship Judge did not do this. By and large, she simply explained the
justifications for Mr Ojo’s absences without any balancing.
[42]
As noted above, the citizenship judge made
findings that were not supported by the evidence in several parts of the
decision: in his analysis of the first Koo factor and in finding that
the applicant’s early application was due to his honest mistake of applying a
bit early. It is also not clear from the reasons and the record how the citizenship
judge concluded, on the fifth factor, that the applicant’s long physical
absence was caused by a clearly temporary situation.
[43]
Even though some of the citizenship judge’s
findings are supported by the reasons and record and a positive finding on each
Koo factor was not required, it is not clear that the citizenship judge
would have come to the same conclusion without the unreasonable findings. As a
result, in my opinion, the decision as a whole is unreasonable.
[44]
As a result, the application must be allowed and
the decision of the citizenship judge must be set aside and the matter referred
to a different citizenship judge for redetermination.
[45]
Neither party wished to submit a proposed
serious question of general importance for my consideration for certification.
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