Date: 20091119
Docket: T-1327-08
Citation: 2009 FC 1168
Ottawa,
Ontario, November 19, 2009
PRESENT:
The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
OUEIDA
KARIM
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
appeal by Karim Oueida (the applicant) pursuant to subsection 14(5) of the Citizenship
Act, R.S.C. 1985, c. C-29 (the Act), from a decision by the citizenship
judge dated December 5, 2007, denying the applicant’s citizenship application.
[2]
The applicant
is a citizen of Lebanon. He was admitted to Canada as a permanent resident in
November 1998. He registered at Dawson
College in August 2001 and then at Concordia University.
[3]
He submitted
his citizenship application on November 8, 2004, alleging that he had been
absent from Canada for a total of 262 days
during the reference period (November 8, 2000, to November 8, 2004). He
therefore stated that he had more than enough days of residence to obtain his
citizenship.
[4]
The
citizenship judge found that the applicant had not demonstrated to his
satisfaction that he was actually in Canada
from November 2000 to August 2001, and denied his application.
[5]
The
citizenship judge noted that the applicant had stated that he had done
absolutely nothing during this period. The applicant also did not present any
document demonstrating that he was in Canada during this time—no bank or credit
card statements, no records of employment (in fact, the applicant had never
worked), no bills (those that he had submitted started in September 2001), no
lease.
[6]
The
citizenship judge also put great weight on the applicant’s statement, which he
did not find plausible, that he had lived in an apartment with three and a half
rooms (one bedroom) with his parents. According to the citizenship judge, this
was unthinkable, all the more so since the applicant had stated that his family
was not without financial means.
[7]
In short, the
citizenship judge found that the applicant had not submitted sufficient
evidence to demonstrate that he had lived in Canada for the 1,095 days required by the Act, and
therefore denied his application.
[8]
The applicant
contends mainly that the citizenship judge failed to take into consideration
certain evidence that demonstrated his presence in Canada during the period in question. It is
established in the case law that the citizenship judge does not have to mention
all of the evidence (Cheng v. Canada (Minister of Citizenship and Immigration),
[2000] F.C.J.
No. 614 (QL). However, when the evidence is relevant and supports an
applicant’s submissions, the fact of not mentioning important evidence can taint
a citizenship judge’s decision.
[9]
In this
proceeding, the applicant’s passports as well as his 2000 tax return are, in my
opinion, such elements. The citizenship judge did not refer to them in his
reasons, but the visas in the applicant’s passports corresponded exactly to the
periods of absence he declared, which constitutes prima facie physical
evidence of his presence in Canada from November 2000 to August
2001.
[10]
Furthermore,
the citizenship judge’s emphasis on the applicant’s statement that he lived in
a small apartment with his parents, which appears to suggest to him that the applicant
was perhaps not in Canada during all of the reference
period, seems difficult to understand.
[11]
What is
more, the citizenship judge accepted that the applicant was in Canada from September 2001 to
November 2004, as well as afterwards, during which time he still lived in that same
small apartment. The citizenship judge’s doubts concerning the period of November
2000 to August 2001 are therefore difficult to understand in that they are
based on this situation. Once again, the passports as well as the 2000 tax
return were there in evidence and supported the applicant’s statements. The
citizenship judge was silent regarding the weight he gave to this evidence. As
a result, I am of the opinion that his decision lacks justification, transparency
and intelligibility (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190, at paragraph 47) and is therefore unreasonable.
[12]
Consequently,
the appeal is allowed and the matter is referred back to another citizenship
judge for redetermination.
JUDGMENT
THE COURT ORDERS AND ADJUDGES that:
The appeal is allowed. The matter is referred back
to another citizenship judge for redetermination.
“Danièle
Tremblay-Lamer”
Certified
true translation
Susan Deichert, Reviser
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