Docket: T-1671-15
Citation:
2016 FC 363
Ottawa, Ontario, April 4, 2016
PRESENT: The
Honourable Mr. Justice Barnes
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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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SAMIR HASSAN
MOHAMED SALHA
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Respondent
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JUDGMENT AND REASONS
[1]
On this application the Minister of Citizenship
and Immigration (Minister) challenges the reasonableness of a decision of the
Citizenship Court by which the Respondent, Samir Hassan Mohamed Salha, was
granted Canadian citizenship.
[2]
The standard of review is reasonableness, which
means, of course, that the decision under review is to be afforded considerable
deference (Canada (Minister of Citizenship and Immigration) v Abdulghafoor,
2015 FC 1020 at paras 15-17, [2015] FCJ No 1017 [Abdulghafoor]).
[3]
In Abdulghafoor, above, Justice Denis
Gascon provided the following helpful description of the approach to be adopted
in cases of this type:
[29] The Minister submits that the
citizenship judge’s reasons are inadequate in that they do not show a grasp of
the paucity of the evidence in this case, let alone the concerns raised by the
citizenship officer. As such, they do not allow a reviewing party to understand
why the citizenship judge made his decision. I do not agree and rather find
that the citizenship judge’s reasons were adequate.
[30] The law relating to the
sufficiency of reasons in administrative decision-making has evolved
substantially since Dunsmuir, both with respect to the degree of
scrutiny to which fact-based decisions (such as the decision at issue in this
case) should be subjected, and in relation to the sufficiency of reasons as a
stand-alone ground for judicial review. In Newfoundland and Labrador Nurses’
Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (CanLII) [Newfoundland Nurses], the Supreme
Court provided guidance on how to approach situations where decision-makers
provide brief or limited reasons. Reasons need not be fulsome or perfect, and
need not address all of the evidence or arguments put forward by a party or in
the record.
[31] The decision-maker is not required
to refer to each and every detail supporting his or her conclusion. It is
sufficient if the reasons permit the Court to understand why the decision was
made and determine whether the conclusion falls within the range of possible
acceptable outcomes (Newfoundland Nurses at para 16). The reasons are to
be read as a whole, in conjunction with the record, in order to determine
whether the reasons provide the justification, transparency and intelligibility
required of a reasonable decision (Dunsmuir at para 47; Agraira v Canada (Public Safety and
Emergency Preparedness), 2013 SCC 36 (CanLII) at para 53; Construction Labour Relations v Driver Iron Inc., 2012
SCC 65 (CanLII) at para 3). This Court
discussed the issue of adequacy of reasons in a citizenship judge’s decision in
the recent Safi decision. In that decision, Justice Kane echoed the Newfoundland
Nurses principles and stated that the decision-maker is not required to set
out every reason, argument or detail in the reasons, or to make an explicit
finding on each element that leads to the final conclusion. The reasons are to “be read together with the outcome and serve the purpose of
showing whether the result falls within a range of possible outcomes” (Safi
at para 17).
[32] In this case, the citizenship
judge’s decision meets this standard; the reasons explain why he decided that
Mr. Abdulghafoor met the residency requirement and how he considered the
evidence.
[33] Reasonableness,
not perfection, is the standard. In citizenship
matters, reasons for decision are often very brief and do not always address
all discrepancies in the evidence. However, even where the reasons for the
decision are brief, or poorly written, this Court should defer to the
decision-maker’s weighing of the evidence and credibility determinations, as
long as the Court is able to understand why the citizenship judge made its
decision (Canada (Minister of Citizenship and Immigration) v. Thomas,
2015 FC 288 (CanLII) at para 34 [Thomas]; Canada (Minister of
Citizenship and Immigration) v Purvis, 2015 FC 368 (CanLII) at paras
24-25).
[4]
In this case the Minister argues that the
Citizenship Court failed in its duty to verify Mr. Salha’s Canadian
residency in the face of material evidentiary deficiencies or to explain why it
decided that Mr. Salha met the residency requirement.
[5]
It is common ground that the reference period
for calculating Mr. Salha’s residency ran from June 30, 2007 to May 26, 2011.
Under the Pourghasemi test adopted by the Citizenship Court, Mr. Salha
was required to establish his physical presence in Canada for at least 1095
days during the reference period (Pourghasemi, Re, (1993) 62 FTR 122
(Fed TD), [1993] FCJ No 232). In his application he declared 1300 days of
physical presence and 125 days of absence.
[6]
Mr. Salha’s declaration of residency was,
however, not corroborated by the documents he submitted. The Citizenship Court
described the problem in the following way:
The applicant has presented copies of all
pages of his travelling documents and he doesn’t declare a shortfall but some
of his statements cannot be verified. For example he declares six absences
during the relevant period but only four of his re-entry dates could be
verifies [sic] through the ICES report.
[7]
The sum total of the Citizenship Court’s
analysis of the evidence bearing on the above problem is then set out in the
following passages:
It is true that the applicant declares six
absences during the relevant period and only four of his re-entry dates could
be verified through the ICES report. However, it is also true that the ICES
report doesn’t contain information contradicting what the applicant declares. I
have also tried to get more information about the trips not supported by the
ICES report. Unfortunately the applicant, as it is very common in some
communities, doesn’t use the credit card very much. However, I was able to find
some activities on one card in the days immediately after his two not verified
re-entries in Canada in Sept. 2007 and March 2009, (see copy of the cc in the
file).
…
Given the foregoing, and referring to the
residency test set by Muldoon J. in Pourghasemi, (Re): [1993] F.C.J. No.
232, I find that, on a balance of probabilities, the Applicant has demonstrated
that he resided in Canada for the number of days he claimed to reside in Canada
and has therefore met the residence requirement under s. 5(1)(c) of the Act.
[8]
The apparent justification for this decision is
that, notwithstanding the absence of corroborating travel documentation or
other probative circumstantial evidence of a presence in Canada during the
periods affected by unverified re-entry dates, the Citizenship Court accepted
Mr. Salha’s declaration of residency at face value.
[9]
In my view the decision fails to conform with
the approach described by Justice Yves de Montigny in Falah v
Canada (Minister of Citizenship and Immigration), 2009 FC 736 at para 21, [2009]
FCJ No 1402:
In applying this test, the Judge cannot rely
on the applicant’s claims alone. He must also verify the applicant’s actual presence
in Canada during the periods when the applicant claims that he was not outside
the country. Accepting the applicant’s argument that the Judge erred by failing
to accept the statements made by the applicant in his residence questionnaire
would amount to saying that the Judge must blindly accept the submissions made
to him as to the number of days of absence from or presence in Canada. That is
not my understanding of the approach taken in Re Pourghasemi. If one
relies on a strict counting of days during which the applicant must be present
in Canada, it follows that the Judge can and must ensure that the applicant was
actually on Canadian soil during the period when he claims to have been. One
need only point out that it is the applicant who bears the burden of proving
that he meets the conditions set out in the Act, and in particular the
residence requirements: El Fihri v. Canada (Citizenship and
Immigration), 2005 FC 1106; Saqer v. Canada (Citizenship and
Immigration), 2005 FC 1392. In this case, the different versions given by
the applicant could only lead the Judge to show prudence and to require proof
of his physical presence in Canada
[10]
The reasons provided by the Citizenship Court
are not sufficient to explain why it found the residency requirement to be
satisfied without evidence to corroborate the dates of some of Mr. Salha’s re-entries
to Canada. Simply put, the Citizenship Court’s finding that the ICES report
does not contradict Mr. Salha’s claim is unhelpful, as the absence of evidence
confirming Mr. Salha’s physical presence in Canada is not probative of
anything. The onus was on Mr. Salha to prove his residency, and his
failure to prove the return dates for two of his six trips to the United Arab
Emirates created a material gap in the evidence.
[11]
The vague reference by the Citizenship Court to
credit card transactions is also problematic. Contrary to the decision, the
credit card statements in the certified tribunal record show that the family
were frequent users of their credit cards. In the absence of Canadian
transactions that could be plausibly attributed to Mr. Salha, to the exclusion
of his wife, those records carried no probative weight in proof of his
residency.
[12]
I would add that the cases relied upon by Mr.
Salha are distinguishable. In all of those cases the reasons given by the
Citizenship Court explained the evidentiary basis of the residency finding: see
Abdulghafoor, above, at para 32; Canada (Minister of Citizenship and
Immigration) v Ibrahim, (March 14, 2016), Toronto T-1167-15 (FC) at
para 9; Canada (Minister of Citizenship and Immigration) v Lee,
2013 FC 270 at para 48, [2013] FCJ No 311; Canada (Minister of Citizenship
and Immigration) v Purvio, 2015 FC 368 at paras 37-39, [2015] FCJ No 360;
Canada (Minister of Citizenship and Immigration) v Suleiman, 2015
FC 891 at paras 17 and 39, [2015] FCJ No 932; and Canada (Minister of
Citizenship and Immigration) v Goo, 2015 FC 1363 (CanLII) at paras
41-42. In this case the Citizenship Court did nothing more than identify the
evidentiary problem and assert a bare conclusion. This approach fails to
provide the justification that is required for a reasonable decision.
[13]
It should not be difficult for Mr. Salha to
prove the details of his international travel. Airline records are an obvious
source of reliable information of the dates of his travel. Other records of his
transactions and attendances in Canada at the relevant times should also be
readily available. Indeed, it is perhaps unfortunate for Mr. Salha that the
Citizenship Court declined his offer of further and better documentation to
confirm his residency. Because that opportunity was missed, it is regrettably necessary
that the matter be revisited with a rehearing on the merits by a different
decision-maker. Mr. Salha will of course, have the opportunity, hopefully with
the assistance of counsel, to supplement his evidence in order to verify his
physical presence in Canada.
[14]
Neither party proposed a certified question and
no issue of general importance arises on this record.
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