Docket: T-845-12
Citation: 2017 FC 1141
[ENGLISH TRANSLATION]
Montréal, Quebec, December 13, 2017
PRESENT: The Honourable Mr. Justice Gascon
| BETWEEN:
|
| MINISTER OF CITIZENSHIP AND IMMIGRATION
|
| Applicant
|
| and
|
| MOHAMMED JOUADE GHARBI
|
| Respondent
|
JUDGMENT AND REASONS
(Reasons for judgment delivered orally from the bench on December 13, 2017, at Montréal)
I. Background
[1] This is an appeal by the Minister of Citizenship and Immigration [Minister] of a decision [Decision] rendered in March 2012 by a Citizenship Judge, in which the Judge granted Canadian citizenship to the respondent, Mr. Mohammed Jouade Gharbi, pursuant to paragraph 5(1)(c) of the Citizenship Act, RSC 1985, c. C-29 [Act]. The Minister submits that the Citizenship Judge made an error in her Decision that warrants this Court’s intervention by failing to specify the residency test used to grant Canadian citizenship to Mr. Gharbi, and by misinterpreting the requirements for residency in Canada prescribed by the Act. The Minister is therefore asking the Court to overturn the Decision and to refer Mr. Gharbi’s citizenship application to a new Citizenship Judge to be reconsidered.
[2] Mr. Gharbi was not authorized to appear in this appeal or to make arguments in writing or at the hearing, personally or through counsel, because of two prior orders issued by the Court, in October 2012 and in August 2017, refusing to give Mr. Gharbi an extension of time to serve and file his notice of appearance and his reply record.
II. Analysis
[3] It is well established that the standard of review of reasonableness applies to decisions made by citizenship judges on whether the residency test is satisfied and on the appropriate test for that purpose (Haba v Canada (Citizenship and Immigration), 2017 FC 732 [Haba] at paras 11–12; Canada (Citizenship and Immigration) v Samaroo, 2016 FC 689 at paras 10–15; Lally v Canada (Citizenship and Immigration), 2016 FC 688 at paras 10–11). When the standard of review is that of reasonableness, the Court must show deference and be careful not to substitute its own opinion for that of the decision-maker, provided that the decision is justified, transparent, and intelligible, and that it 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 para 47). A decision’s reasons are considered reasonable “if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes” (Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 [Newfoundland Nurses] at para 16).
[4] In his submissions, the Minister argues in particular that the Citizenship Judge made an unreasonable decision by failing to specify the test that she relied on to determine whether Mr. Gharbi had satisfied the residency requirement set out in Act. I agree with the Minister’s arguments in this regard.
[5] It is well accepted that citizenship judges can choose to apply any of three tests to confer Canadian citizenship to an applicant (Haba at paras 17–18). These are: (i) the test developed in Pourghasemi (Re), [1993] FCJ No. 232 (QL) [Pourghasemi], whereby residency is established by a strict count of the days that the applicant was physically present in Canada (the total calculated must be at least 1095 days of residency in Canada in the four years preceding the application); (ii) the test established in Re Papadogiorgakis , [1978] 2 FC 208, a more flexible test that recognizes that a person may have resided in Canada even if that person was temporarily absent, as long as the person maintained a solid attachment with Canada and that his or her mode of existence reflected an intention to establish permanent residence; or (iii) the test arising from Koo (Re), [1993] 1 FC 286, which defines residence as the place where a person “regularly, normally or customarily lives” and where that person “centralized his or her mode of existence”. The last two tests are often described as qualitative tests, as opposed to the quantitative test of Pourghasemi.
[6] Even if the jurisprudence confers to citizenship judges the discretion to choose from these three tests to assess whether the residency requirement has been satisfied, the judges must at a minimum indicate which of these tests was used and why it was or was not satisfied (Canada (Citizenship and Immigration) v Bayani, 2015 FC 670 [Bayani] at paras 30–31). The failure to do is a reviewable error (Canada (Citizenship and Immigration) v Lin, 2016 FC 58 at paras 12–13). Therefore, the Citizenship Judge had to clearly identify the residency test that she chose to assess Mr. Gharbi’s application, or see her Decision overturned. This is clearly lacking in the Decision.
[7] In the brief supporting reasons set out in an appendix to the Decision, indeed the Citizenship Judge simply provided a list of documents relating in particular to the loss of Mr. Gharbi’s passport, as well as to his notice of assessment and to his hypothecary loan, following which she summarily found that Mr. Gharbi met the residency requirements prescribed by paragraph 5(1)(c) of the Act. The Judge also observed that Mr. Gharbi had declared more than 1095 days of presence in Canada in the four-year period preceding the filing of his citizenship application. However, the Decision does not specifically or implicitly address any of the tests recognized in the jurisprudence, and the Judge did not offer any indication of the residency test applied in her reasons. Rather, she said only that the documents filed were conclusive and that Mr. Gharbi had met [translation] “that requirement” on a balance of probabilities. The Decision lacks any analysis, and it is impossible to establish, in any way, a connection between the reasons set out by the Judge and any of the three residency tests. That is enough, in my opinion, to push the Decision outside the range of possible, acceptable outcomes, and to allow the Minister’s appeal.
[8] Certainly, I accept that the reasons of an administrative tribunal do not have to be exhaustive, and that they must simply be understandable. However, to remain in the spectrum of reasonableness, a Decision must still be intelligible and transparent, and the reasons must enable the reviewing court “to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes” (Newfoundland Nurses at para 16). I must find that such is not the case here.
[9] The analysis of the Decision’s reasonableness does not, however, end with the decision itself, and the Court can also review the Citizenship Judge’s notes, as well as the record as a whole, to identify reasoning that was not conveyed in the reasons. Indeed, in Newfoundland Nurses, the Supreme Court invites the reviewing courts to undertake this exercise before it finds that a decision is unreasonable. I would add that, in the decision Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47 [City of Edmonton], the Supreme Court pushed things even a little further by stating that a reviewing court can consider reasons which could be offered in support of a decision in order to establish its reasonableness (City of Edmonton at paras 36–38). Indeed, the Federal Court of Appeal recently reiterated in Canada (Transport) v Canadian Union of Public Employees, 2017 FCA 164 [CUPE] that a reviewing court must consider not only the reasons given by the decision-maker, but also the record before the decision-maker. Moreover, “for a decision to be upheld as being reasonable, it may not even be necessary for the decision-maker to have provided any reasons at all if the record allows the reviewing court to discern how and why the decision was reached and the decision-maker’s conclusion is defensible in light of the facts and applicable law” (CUPE at para 32). That said, the fact remains that the record must, at a minimum, contain evidence that allows the reviewing court to identify how and why the decision-maker’s finding is defensible in respect of the facts and law (City of Edmonton at para 38; CUPE at para 32; Benko v Canada (Citizenship and Immigration), 2017 FC 1032 at para 35).
[10] Moreover, the Court is not expected to look to the record to fill in gaps to the extent that it rewrites the reasons (Canada (Citizenship and Immigration) v Safi, 2014 FC 947 at para 18; Canada (Citizenship and Immigration) v Abdulghafoor, 2015 FC 1020 at para 18). In fact, allowing the analysis of the record is not the same as conferring the reviewing court the power to re-examine the evidence and to substitute itself for the decision-maker. On the contrary, the Supreme Court has noted time and again that this is not the role of the reviewing courts in an application for judicial review (Newfoundland Nurses at para 17; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at paras 59, 61). Indeed, with respect to citizenship decisions, if 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” (Bayani at para 36; Canada (Citizenship and Immigration) v Golafshani, 2015 FC 1136 at para 12; Korolovev Canada (Citizenship and Immigration), 2013 FC 370 at paras 46–47).
[11] In Mr. Gharbi’s case, I am not satisfied that the record can rescue the Decision. Even though it is an extensive 240 pages, the record does not allow me to discern which of the three tests were used to anchor the Decision. Even after going through the record in detail, I do not see any evidence that could establish which residency test the Citizenship Judge’s Decision is based on. It is also impossible to infer an analytical test by relying on logical inferences that I could impute to the Judge (Canada (Citizenship and Immigration) v Suleiman, 2015 FC 891 at para 39; Komolafe v Canada (Citizenship and Immigration), 2013 FC 431 at para 10). In fact, in my opinion, the record obscures the Citizenship Judge’s decision more than it clarifies it, given that not only does the evidence fail to unveil the test apparently retained by the Judge, but in many respects, it indicates many hiatuses in Mr. Gharbi’s residency and establishment in Canada.
[12] Since it is not possible, from the reasons for the Decision or from the record, to determine with any degree of precision which residency test was applied by the Citizenship Judge, I cannot understand the basis of the Judge’s finding or determine that this finding is a possible, acceptable outcome under the circumstances.
I accept that an imperfect decision may sometimes be reasonable nevertheless. But, as liberal as it may be, the recent Supreme Court jurisprudence does not authorize the reviewing court to go so far as to uphold a decision that lacks justification, transparency and intelligibility. That is the case here. It is also not for the Court to guess what the Citizenship Judge may have wanted to say, to speculate on what she may have thought, or to rewrite the reasons that are lacking from the Decision and the record (Bayani at para 32). That is an exercise for the decision-maker to undertake, with the help of the decision-maker’s specialized expertise, and deference therefore requires that the Decision be referred back to another Citizenship Judge to give that Judge the opportunity to undertake this exercise.
Email this Content