Docket:
T-1266-15
Citation: 2016 FC 254
Ottawa, Ontario, February 29, 2016
PRESENT: The
Honourable Mr. Justice Annis
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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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JACEK MAS
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review of a
decision dated June 30, 2015, by the Citizenship Judge, Wojciech Sniegowski [the
Citizenship Judge], approving the citizenship application of Jacek Mas [the
Respondent] in accordance with subsection 14(5) of the Citizenship Act,
RSC 1985, c C-29 [the Act].
[2]
The Minister of Citizenship and
Immigration [the Applicant] is seeking to have the decision set aside and
maintains that the Citizenship Judge erred in fact and in law by granting the
Respondent citizenship.
I.
The Facts
[3]
The Respondent is a Polish citizen. He came to
Canada in January 2000. In February 2001, he was granted refugee status.
[4]
On July 5, 2010 (not July 10, 2010 as stated in
the Citizenship Judge’s reasons), the Respondent filed a Canadian citizenship
application. Thus, the reference period, as defined in paragraph 5(1)(c) of the
Act, was from July 5, 2006 to July 5, 2010.
[5]
After submitting a Residency Questionnaire [RQ] the
Respondent appeared before Citizenship Judge, K. McMillan, in February 2015.
After that hearing, the Respondent was asked for additional documentation. His
file was subsequently transferred to Citizenship Judge Sniegowski.
[6]
Prior to the hearing, the Citizenship Judge was
provided with the “File Preparation and Analysis Template” [FPAT] by an Officer
from Citizenship and Immigration Canada [CIC]. The document listed a number of
concerns with respect to the Respondent’s citizenship application:
a)
On February 21, 2011, the Respondent arrived in
Toronto with a travel document and his permanent residence card. However, he
had no airplane ticket, nor any travel stamps to show where he had been.
b)
The Respondent was suspected of having another
passport that he used to travel to Poland.
c)
The Respondent’s previous Citizenship
application, dated December 7, 2006, was refused because he did not establish
his residence and did not pass the knowledge test.
d)
The Respondent did not provide any travel
documents to cover the period from October 25, 2009 to July 5, 2010.
e)
The Respondent provided incomplete copies of his
Canada Travel Documents.
f)
The Respondent did not provide a copy of his
Polish passport.
g)
The Respondent previously declared being a
permanent resident of Poland when entering Canada.
h)
The Respondent had three undeclared absences
from Canada.
i)
The Respondent provided no documentation for his
residence in Canada and failed to provide Notices of Assessment for 2006 and
2007.
[7]
At the hearing with Citizenship Judge McMillan,
many of the CIC Officer’s concerns were raised and recorded in the Judge’s
notes as follows:
a)
In 2008, the Respondent declared himself to be a
resident of Poland when entering Canada (although he claims it was a
misunderstanding).
b)
The Respondent provided inconsistent explanations
as to why there was a nine-month gap in his travel documents: first indicating
that he did not have another travel document, then suggesting that he sent the
document back for an extension.
c)
The Respondent admitted that he does have a
Polish passport that he failed to present to the Judge and provided no reasons
for doing so.
d)
The Respondent explained first that his family
has not visited him in Canada; thereafter changing his answer to explain that
he thought his daughters visited him in 2008.
e)
The Respondent gave unclear answers on his
travels to Germany. He did not say that he saw his family on those trips, but
rather that he went for business. However, he was unable to produce any
business documents from those trips.
II.
Decision under appeal
[8]
In his reasons, Citizenship Judge Sniegowski
noted that the Respondent declared 1375 days of presence in Canada, 85 days of
absence, for a total of 1460 days in the relevant period. He reviewed the CIC
Officer’s observations and in addressing the concerns noted the following:
a)
The Respondent presented a Canada Travel
Document at the hearing and his declaration of absences was verified.
b)
He explained his undeclared absences by stating
he did not think he had to declare short trips to the USA. He also added that
he did not know why his travel document was un-stamped by German authorities
and that his trip there was extended because of volcanic ash from Iceland that
made air travel unsafe.
c)
The Respondent had no residence documents
because he lives with his brother and did not pay rent.
d)
Additional documents were provided including the
missing Notices of Assessment.
e)
The Respondent rarely goes to see his doctor.
f)
He does not have ties to the community as he
works long hours 6 to 7 days a week.
g)
Based on the Respondent’s testimony at the
hearing, which Citizenship Judge Sniegowski found logical and complete, and the
additional documents presented by him, the Citizenship Judge was satisfied that
he presented an accurate account of his presence in Canada.
[9]
Based on the Respondent’s testimony, and
applying the strict counting of residency days test established by Justice Muldoon
in Pourghasemi (Re), [1993] F.C.J. No 232, the Citizenship Judge
was satisfied that the Respondent resided in Canada for the number of days he
claimed to reside in Canada and therefore met the residency requirement.
III.
Issue
[10]
In this case, the only issue argued was whether
the Citizenship Judge provided sufficient reasons for his decision.
IV.
Relevant legislation
[11]
Paragraph 5(1)(c) of the Citizenship
Act, as it existed at the date of the Respondent’s application for Canadian
citizenship, states the following:
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5. (1) The
Minister shall grant citizenship to any person who:
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5. (1) Le
ministre attribue la citoyenneté à toute personne qui, à la fois :
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(c) is a permanent resident within the meaning of subsection 2(1)
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 of residence in Canada calculated in the following manner:
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c) est un résident permanent au sens du paragraphe 2(1) de la Loi
sur l’immigration et la protection des réfugiés et a, dans les quatre ans qui
ont précédé la date de sa demande, résidé au Canada pendant au moins trois
ans en tout, la durée de sa résidence étant calculée de la manière suivante:
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(i) for every day during which the person was resident in Canada
before his lawful admission to Canada for permanent residence the person
shall be deemed to have accumulated one-half of a day of residence, and
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(i) un demi-jour pour chaque jour de résidence au Canada avant son
admission à titre de résident permanent,
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(ii) for every day during which the person was resident in Canada
after his lawful admission to Canada for permanent residence the person shall
be deemed to have accumulated one day of residence;
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(ii) un jour pour chaque jour de résidence au Canada après son
admission à titre de résident permanent.
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[…]
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[…]
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V.
Applicable standard of review
[12]
The standard of review for deficient reasons is
one of reasonableness:
A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable.
Reasonableness is concerned mostly with the existence of justification,
transparency and intelligibility within the decision-making process and with
whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and the law. It is a deferential
standard which requires respect for the legislative choices to leave some
matters in the hands of administrative decision makers, for the processes and
determinations that draw on particular expertise and experiences, and for the
different roles of the courts and administrative bodies within the Canadian
constitutional system.
Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir]
VI.
Analysis
[13]
In light of the evidence in the record, the
parties’ arguments and the applicable jurisprudence, I find the Citizenship
Judge’s decision unreasonable because the reasons are inadequate judged on the Dunsmuir
standard.
[14]
Justice de Montigny, in Canada (Minister of Citizenship and Immigration) v Jeizan, 2010 FC 323 at
paragraph 17, described the standard regarding reasons for decisions in the
context of citizenship judges, as follows:
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. (Citations omitted)
[15]
Similarly, Justice Kane in the recent decision
of Canada (Minister of Citizenship and Immigration) v Safi, 2014 FC 947, at paragraph 56 quotes Justice Boivin in Canada (Minister
of Citizenship and Immigration) v Raphael, 2012 FC 1039, stating as
follows:
[56] The
remarks set out in the space for reasons in this case leave me in a similar
position as Justice Boivin (as he then was) in Raphaël, as I am not able
to understand the Citizenship Judge’s reasons or the relevant factors that led
him to be satisfied that Mr Safi met the residency test. As Justice Boivin
noted at para 28:
[28] It is not up to this Court
to reassess the evidence submitted by the respondent. That being the case, the
Court can only note that several gaps in the evidence do not seem to have been
considered or analyzed by the citizenship judge (Canada (Citizenship and
Immigration) v Abou-Zahra, 2010 FC 1073, [2010] FCJ No 1326; Canada
(Citizenship and Immigration) v Al-Showaiter, 2012 FC 12, [2012] FCJ No 7).
Contrary to the respondent’s argument, the Court is unable to understand the
citizenship judge’s reasoning on the mere reading of the reasons and notes and
comprehend what were the relevant factors or documents that convinced him that
the respondent met the residence tests (Saad v Canada (Citizenship and
Immigration), 2013 FC 570, [2013] FCJ No 590). In fact, the respondent is
in effect asking this Court to surmise the citizenship judge’s reasoning. The
respondent did not convince this Court that the citizenship judge’s decision
falls within a range of possible, acceptable outcomes in respect of the facts
and law.
[16]
I find myself in the same position as Justices
Kane and Boivin described above in not being able to comprehend the Citizenship
Judge’s reasons or the relevant factors that led him to be satisfied that the
Respondent met the residency test when there is a failure to consider several
significant gaps in the evidence, raised by Citizenship Judge McMillan but not
addressed by Citizenship Judge Sniegowski.
[17]
Paramount among these
concerns is the absence of any reference to the missing Polish passport. The
failure to provide this document was noted by Citizenship Judge McMillan along
with the lack of any explanation supporting its absence.
[18]
In my view, Citizenship Judge Sniegowski was
required to address the Respondent’s failure to provide his Polish passport,
which he acknowledged he had, when he was a permanent resident of the country
and had family living there. This is all the more so when raised by Citizenship
Judge McMillan and the expectation would be that the Respondent would make best
efforts either to produce the passport or provide an explanation why it was not
among the additional documentation delivered to Citizenship Judge Sniegowski.
[19]
Similarly, the Respondent could only provide an incomplete
copy of the official Canada Travel Document leaving approximately nine months
unaccounted for during the relevant four-year period. Seen against the backdrop
of Citizenship Judge Sniegowski accepting the Respondent’s declarations
regarding his lack of ties to Canada, lack of documentation regarding residence
and his undeclared absences and other inconsistencies in his testimony, the
failure to address gaps in his residency evidence required consideration by the
Citizenship Judge.
[20]
As the Court is unable to understand the
Citizenship Judge’s reasoning and comprehend what were the relevant factors or
documents that convinced him that the Respondent met the residency test, the
Court concludes that the decision-making process lacks justification, intelligibility
and transparency to permit or determine whether the conclusion is within a
range of reasonable possible outcomes.
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