Date: 20101116
Docket: T-2126-09
Citation: 2010
FC 1146
Toronto, Ontario, November 16, 2010
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
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BALASUBRAMANIAM ALIA BALU
PADMANABHAN
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
The
Applicant is a permanent resident who applied for Citizenship; the present
Application is a challenge to a negative decision of a Citizenship Judge. The
decision under review contains the following statements:
You entered Canada and were granted permanent resident
status on June 30, 2002. You applied for Canadian Citizenship on June 6,
2007. The relevant time period for the purpose of assessing the residence
requirement is from June 6, 2003 to June 6, 2007.
Therefore, you have 1,460 material days.
You indicated on your Application for Citizenship, that you were absent from Canada for 129 days during the
relevant period. This would give you 1,331 days of physical presence in Canada.
However, having reviewed all of the
documentation you submitted, having personally interviewed you and for the
reasons below, I am not satisfied, on a balance of probabilities, that the
information provided by you accurately reflects the number of days that you
were, in fact, physically present in Canada.
The main issue is whether you accumulated
at least three years of residence in Canada
within the four years immediately preceding the date of your application for
Canadian citizenship.
[…]
According to your passport, you have
valid UAE Residence Permits covering part of the relevant period. This permit
requires you to reside in UAE, it becomes invalidated if you leave for more
than six months.
Your passports bear many visas issued in
UAE when you declared that you were in Canada. You stated that you couriered the
passport to Dubai for issuance of the visas.
However, there is a visa from Syrian Arab Republic issued on August 12, 2003, a date you
stated you were in Canada. There are quite a number of
stamps on your passport showing entries and exits of India which are illegible, and there are also
stamps which show departure when you declared as arrival and vice versa.
Therefore the dates of your declared absences cannot be verified.
It is impossible for me to determine, on
a balance of probabilities, how many days you were actually present in Canada,
because there is insufficient evidence of your continued physical presence
during the periods when you stated to have been in Canada.
(Tribunal Record, pp. 5-6)
[2]
The
Applicant’s affidavit filed in the present Application contains the
explanations provided to the Citizenship Judge at the interview:
10. I declared on my
application an absence of 129 days. That was the total amount I was absent
from Canada. I have been present in Canada for 1331 within the required
four year period. As a Citizen of India, I have only one passport, Issued by
the Government of India. I submitted my passport which had stamps for my
entries and exits from Canada. Non English stamps were
translated by certified translators in Ontario, Canada. After landing in Canada (as a
permanent resident) I made seven trips outside of Canada in an effort to
network with business people to whom I had provided services while living in
the United Arab Emirates. By this I hoped to obtain Consultancy Assignments
from overseas for me to do in Canada. The Passport Reflects Entry
& Exit Stamps together with Visas taken to facilitate these travels; seven
times between 13th June, 2003 & 19th May, 2004.
However I met with Minimal Success in Obtaining Consultancy Assignments to do
in Canada, therefore I DECIDED TO FOCUS
ON LOCAL CONSULTANCY WORK AND DECIDED TO STOP MY OVERSEAS TRAVEL COMPLETELY and
thereby save on travel cost, time & effort.
11. After having
re-entered Canada 19 May 2004, I remained continuously in Canada until 12 May 2007 when I was
absent for one week, returning 19 May, 2007. My passport showed no stamps of
entry or exit from Canada between May 19, 2004 and May
12, 2007. I left Canada for one week from May 12,
2007 to May 19, 2007. I did not exit Canada
at all between May 19, 2004 and May 12, 2007. The relevant period of time to
be considered is between June 7, 2003 and June 6, 2007. I have been outside of
Canada for only 129 days within this
time period and physically present for 1331 days. Stamps in my passport
support the fact that I have been absent from Canada for a total of 129 days
and physically present in Canada for 1331 days during the four year period from
June 7, 2003 to June 6, 2007.
(Tribunal Record,
pp. 9-10)
However, it is very apparent that the Citizenship Judge
rejected the Applicant’s explanations because he was not believed, but no clear
reasons are given in the decision for reaching this conclusion. In my opinion this
is unfair. The Applicant is entitled to know why his straight-forward and
apparently truthful explanations were rejected. The Citizenship Judge’s failure
to provide the reasons constitutes a reviewable error which renders the
decision unreasonable.
ORDER
THIS COURT ORDERS that:
Accordingly, the decision
under review is set aside and the matter is referred back for redetermination
by a different citizenship judge.
“Douglas
R. Campbell”
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