Docket: T-692-15
Citation:
2015 FC 1362
Ottawa, Ontario, December 9, 2015
PRESENT: The
Honourable Mr. Justice O'Keefe
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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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HYE YOUNG LEE
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
Pursuant to section 22.1 of the Citizenship
Act, RSC 1985, C-29, as amended [the Act], the applicant, the Minister of
Citizenship and Immigration, asks the Court to set aside the decision of a
citizenship judge, dated April 2, 2015, that approved the citizenship
application of the respondent, Hye Young Lee, pursuant to subsection 5(1) of
the Act. The application is being heard concurrently with the application to
set aside the decision relating to the respondent’s husband, Sung Hoon Goo.
I.
Facts
[2]
Ms. Hye Young Lee [the respondent] is a citizen
of South Korea. She was granted permanent residence in Canada on May 24, 2005.
[3]
The respondent applied for citizenship on
October 28, 2009.
[4]
The respondent alleges that in the four years
preceding the application for citizenship (the relevant period between October
28, 2005 and October 28, 2009), she has been residing in Canada and has been
physically present in Canada, apart from short visits to the United States and
South Korea. The respondent alleges that during the relevant period, she and
her husband had identical travel itineraries. The respondent worked as a
homemaker during the relevant period.
[5]
An officer of Citizenship and Immigration Canada
[the reviewing officer] reviewed the respondent’s application, prepared a “File Preparation and Analysis Template” and
recommended a hearing. The reviewing officer noted various deficiencies in the
documentation: the place of issue was not indicated on the respondent’s
passports; there was a discrepancy in the declared absences between the
respondent’s application form and residency questionnaire; there was an
undeclared entry stamp to the United States; there was no supporting
documentation of the respondent’s attendance at ESL classes; the evidence of
the respondent’s children’s attendance at school was incomplete (it did not
include every semester in the relevant period); there was incomplete income tax
information presented as evidence of employment; the respondent’s house
ownership was not documented; the passports were missing re-entry stamps; the
documentation provided as an indicator of residence was mostly passive; and
there was no supporting documentation of the respondent’s self-employment as a
pianist.
[6]
The respondent attended a hearing before the
citizenship judge on March 23, 2015. She recounts in her affidavit that her
husband acted as her interpreter during the hearing. The citizenship judge
questioned her regarding most of the reviewing officer’s concerns and she
provided explanations. There is no transcript of the hearing on the record.
II.
Issues
[7]
The applicant raises the issue that the citizenship
judge’s reasons are not sufficient because they do not allow the Court to
understand how the judge reached his decision.
III.
Decision
[8]
In a decision dated April 2, 2015, the citizenship
judge found that Ms. Hye Young Lee meets the residence requirement under
paragraph 5(1)(c) of the Act and approved her application for citizenship.
[9]
The citizenship judge noted that the respondent
had declared 1,407 days present and 53 days of absence in the relevant period.
However, the citizenship judge noted that there were concerns regarding the
credibility of the respondent because of discrepancies between the declared
absences in the application form and residency questionnaire and a lack of
documentation related to her business activity.
[10]
Under the heading, “Facts”,
the citizenship judge explained that during the interview, the respondent
explained that she had mistakenly left out trips to the United States in 2006
from her residency questionnaire, but that the correct list of absences was the
one presented in the application form. The citizenship judge explained that
there was one undeclared entry stamp to the United States in the respondent’s
passport on March 13, 2006; however, this entry was included in the respondent’s
list of absences in the application form.
[11]
The citizenship judge also noted that there were
few positive indicators of the respondent’s business activity in her
application. She submitted consistent utility bills for the relevant period,
documentation of the academic activity of her children and submitted medical
records after the hearing. She stated in the hearing that she is a housewife
and plays piano as a volunteer, which is consistent with the submitted income tax
returns.
[12]
The citizenship judge stated that he applied
the residency test set out in Pourghasemi (Re), [1993] FCJ No 232 (TD).
He explained that the respondent bears the burden of proving that she meets the
residency requirements. He found that there were not valid elements to dispute
the respondent’s statements regarding her days of physical presence in Canada.
IV.
Applicant’s Written Submissions
[13]
The applicant submits that an applicant for
citizenship bears the onus of providing sufficient objective evidence to demonstrate
that the requirements of paragraph 5(1)(c) of the Act are met.
[14]
The applicant submits that the evidence before
the citizenship judge was not sufficient to establish that the respondent had
met the requirements set out in paragraph 5(1)(c) of the Act. The lack of
documentation made it impossible for the citizenship judge to conclude that the
respondent met the residency requirements.
[15]
In particular, the applicant argues that the citizenship
judge failed to account for the concerns that the reviewing officer noted in
the application. The citizenship judge did not address: that the respondent’s
passport is missing re-entry stamps to Canada for the declared absences; how he
was able to conclude that the respondent was physically present in Canada for 1,095
days; how the concern that it cannot be ascertained where the respondent
renewed her passport was addressed; how her income tax returns, which only included
the first page of her notices of assessment in 2006 and 2008, confirm her
employment explanation; that the respondent provided mostly passive indicators
of residence; that the declared absences were not accompanied by reasons for
the absences; that there was not supporting documentation to support that the
respondent attended ESL classes; and that only limited evidence of the
respondent’s children’s education was provided (i.e. no end-of-year report
cards were provided).
[16]
The applicant also notes that there is no
indication that the citizenship judge requested the respondent’s travel records
from the Canada Border Services Agency (CBSA), despite the respondent’s consent
to the release of this information.
[17]
The applicant submits that in light of the
record before the citizenship judge, the reasons are not clear, precise and
intelligible. They do not allow a reviewing court to understand why the
decision was made or whether the conclusion falls within a range of reasonable
outcomes (Newfoundland and Labrador Nurses’ Union v Newfoundland and
Labrador (Treasury Board), 2011 SCC 62 at paragraph 16 [Newfoundland
Nurses]). The reasons simply state that the residency requirements were
met, but do not explain how this finding was made in light of the above-noted
discrepancies and deficiencies in the evidence.
[18]
In reply, the applicant submits that it is not
proper for the respondent to proffer affidavit evidence that supplements the
reasons of the decision-maker to address shortcomings of the decision. The
applicant submits that this is analogous to situations where the Minister
proffers affidavit evidence from the decision-maker, as the respondent, to
address shortcomings in the decision.
V.
Respondent’s Written Submissions
[19]
The respondent submits that the decision of a citizenship
judge to find that an applicant meets the residence requirement is entitled to
a high degree of deference (Al-Askari v Canada (Minister of Citizenship and
Immigration), 2015 FC 623 at paragraphs 18 and 19; Canada (Minister of
Citizenship and Immigration) v Patmore, 2015 FC 699 at paragraphs 14 and
24).
[20]
The respondent submits that the Court should not
re-weigh evidence of residency, which is a factual finding and can be
interpreted in a range of different ways and whose interpretation is within the
purview of the citizenship judge (Canada (Minister of Citizenship and
Immigration) v Anderson, 2010 FC 748 at paragraph 26 [Anderson]; Khalfallah
v Canada (Minister of Citizenship and Immigration), 2009 FC 1132 at paragraph
23).
[21]
The respondent submits that the reasons do not
need to be perfect, as long as there is a reasonable basis for the decision (Newfoundland
Nurses at paragraph 12; Canada (Minister of Citizenship and Immigration)
v Lee, 2013 FC 270 at paragraphs 48 to 51; Canada (Minister of
Citizenship and Immigration) v Sadek, 2009 FC 549 at paragraphs 15 to 19).
If it is apparent that the Minister considered the totality of the facts, the
Court should not intervene (Anderson at paragraph 21).
[22]
The respondent submits that there was sufficient
evidence before the citizenship judge to allow the citizenship judge to
reasonably conclude that the residence requirement was met. In particular, the
respondent provided:
i.
For 2005, doctor’s letters indicating that the
respondent, her husband and her daughter had visited that year; report cards
indicating her son was enrolled in school that year; a Rogers bill from one
month of that year, and a utility bill from several months of that year.
ii.
For 2006, a notice of assessment; a doctor’s
letter indicating that her daughter had visited that year; a tax bill
indicating home ownership; a letter confirming insurance coverage; reports
cards indicating her son and daughter were enrolled in school that year; and a
receipt confirming a charitable donation in Canada that year.
iii.
For 2007, doctor’s letters indicating that the
respondent had visited twice and her husband had visited twice; a letter
confirming insurance coverage; reports cards indicating her son and daughter
were enrolled in school that year; bank statements for two months of that year;
a Bell bill for one month of that year; and a utility bill for several months of
that year.
iv.
For 2008, a notice of assessment; a Canada
Revenue Agency [CRA] letter indicating she was eligible for a tax credit; a
doctor’s letter indicating that her son had visited that year; a letter
confirming insurance coverage; a letter confirming an insurance claim for a car
accident that year; a report card indicating her son was enrolled in school
that year; a school report of absences indicating her daughter was enrolled in
school that year; bank statements for three months of that year; a property
assessment notice for that year; and utility bills for several months of that
year.
v.
For 2009, correspondence from CRA to a Canadian
address; a letter from CRA confirming child tax benefits received that year; a
doctor’s letter indicating that the respondent had visited twice, her husband
had visited, her daughter had visited and her son had visited four times that
year; a tax bill showing home ownership; a report card showing her son was
enrolled in school; bank statements for three months of that year; a credit
card statement for one month of that year; a letter confirming family membership
at the YMCA that year; Rogers bill and Bell bill for two months of that year; and
utility bills for that year.
[23]
The respondent also submits that she is entitled
to the presumption of truth, given that she and her husband confirmed their
travel history under oath at the hearing and there is no substantially
contradictory evidence (Westmore v Canada (Minister of Citizenship and
Immigration), 2012 FC 1023 at paragraph 44).
[24]
The respondent further submits that each of the
concerns set out in the reviewing officer’s memorandum, relied on by the
applicant, were either unreasonable or addressed by the citizenship judge.
[25]
Regarding the discrepancy between declared
absences in the application form and residency questionnaire, it was not
unreasonable for the citizenship judge to accept the respondent’s explanation
that she made a mistake in the residency questionnaire.
[26]
Regarding the concern that the citizenship judge
did not explain how he was able to conclude that the respondent was physically
present in Canada for 1,095 days, the respondent submits that her and her
husband’s testimony is entitled to the presumption of truth and there was no
objective evidence indicating that they did not meet the residency
requirements.
[27]
Regarding the lack of re-entry stamps to Canada,
the respondent and her husband explained under oath that Canadian officials had
not stamped their passports upon re-entry. The Court has recognized that CBSA
does not keep complete records of entry into Canada and this is beyond the
control of applicants (Canada (Minister of Citizenship and Immigration) v
Purvis, 2015 FC 368 at paragraphs 37 to 39 [Purvis]).
[28]
Regarding the location where the respondent
renewed her passport, the respondent submits that the passport does not
indicate where it was issued and the respondent and her husband confirmed to
the citizenship judge that it was obtained from the Consulate in Canada.
[29]
Regarding the concern that the respondent
provided primarily passive indicators of residence, the respondent submits that
this concern is not reasonable in light of the evidence that she and her family
were physically present in Canada, as noted above.
[30]
Regarding the concern relating to incomplete
taxation documentation, the respondent submits that she provided evidence that
she filed income taxes during the relevant period, that she received refunds
and benefits, and she confirmed that she filed income tax returns under oath.
Additionally, her evidence that she was not employed outside the home was
uncontradicted and the citizenship judge stated to the respondent and her
spouse that he did not place very much significance on the filing of income tax
returns.
[31]
Regarding the concern that the respondent did
not declare reasons for her travel, the respondent and her spouse addressed
this concern at the hearing. They stated that the visits were for family trips,
not business.
[32]
Regarding the lack of documentation for the ESL
course the respondent and her spouse attended, they reasonably explained at the
hearing that they did not complete the course and therefore did not receive a
certificate. Regarding the fact that there was inconsistent information
provided relating to the months of attendance in ESL courses, the respondent
submits that this minor inconsistency would not provide a reasonable basis for
rejecting the respondent’s application for citizenship (Purvis at
paragraphs 37 to 39).
[33]
Regarding the incomplete information regarding
the respondent’s children’s schooling, the respondent submits that this would
not provide a reasonable basis for rejecting the application. It was reasonable
for the citizenship judge to conclude that the children were in school for the
years for which some report cards were provided, given that it is unlikely and
unsupported by the evidence that they would be in and out of school in Canada.
Moreover, the citizenship judge reasonably accepted the respondent and her
husband’s explanation that these were the only school records they could find at
the date of the application.
VI.
Analysis and Decision
[34]
Given that the citizenship judge applied the
quantitative test from Pourghasemi, the burden was on the respondent to
establish with clear and compelling evidence the number of days she was
physically present in Canada (Abbas v Canada (Minister of Citizenship and
Immigration), 2011 FC 145 at paragraph 8). As the citizenship judge applied
one of the acceptable tests, the standard of review of the remaining parts of
the decision is reasonableness.
[35]
In a recent case, Canada (Minister of
Citizenship and Immigration) v Abdulghafoor, 2015 FC 1020 [Abdulghafoor],
Mr. Justice Denis Gascon provided a summary of the case law on the sufficiency
of reasons in the context of a decision by a citizenship judge:
[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 at para 53; Construction
Labour Relations v Driver Iron Inc., 2012 SCC 65 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 at para 34 [Thomas]; Canada (Minister of
Citizenship and Immigration) v Purvis, 2015 FC 368 at paras 24-25).
[34] In Thomas, for example, the
citizenship judge found that the respondent was credible, addressed the
citizenship officer’s concerns and accepted the respondent’s explanations. In
response to the Minister’s argument that there was insufficient evidence,
Justice Mosley noted that “although the notes could have been clearer and more
thorough, the ultimate decision rested on a reasonable assessment of the
evidence, including the explanations provided by [the respondent]” (at para
34). Justice Mosley pointed out that the case did not contain unexplained gaps
in the evidence, as the respondent had provided explanations that the
citizenship judge found credible. Justice Mosley reminded that the Court must
defer to the decision-maker’s weighing of the evidence and credibility
determination in absence of clear error (Thomas at paras 33-34).
…
[36] The present case is different. The
citizenship judge identified the residency test he relied on and addressed the
credibility concerns raised by the citizenship officer; there were no gaps in
evidence or periods unaccounted for. I conclude that the reasons are sufficient
and adequate with regard to the test established by Newfoundland Nurses.
I am able to understand the citizenship judge’s reasoning and to understand
which factors and evidence led him to be satisfied that Mr. Abdulghafoor had
been in Canada for the requisite number of days.
[36]
In Canada (Minister of Citizenship and
Immigration) v Suleiman, 2015 FC 891 [Suleiman], Mr. Justice Gascon
provides a useful summary and commentary on the use of the record in the
reasonableness analysis and the use of a citizenship applicant’s affidavit
where no transcript of the hearing is available in the review of decisions by
citizenship judges:
[23] A decision-maker like a
citizenship judge is deemed to have considered all the evidence on the record (Hassan
v Canada (Minister of Citizenship and Immigration), [1992] FCJ No 946 (FCA)
at para 3). A failure to mention an element of evidence does not mean that it
was ignored or that there was a reviewable error. In this case, the judge has
also had the benefit of a long hearing with Mr. Suleiman, for which there is no
transcript to contradict the evidence on the record or the affidavit filed by
Mr. Suleiman. The decision of the citizenship judge evidently took into account
the oral evidence provided by Mr. Suleiman. A review of the decision shows that
the judge found the following:
Mr. Suleiman terminated his
employment in Dubai at the beginning of 2005 and returned to Canada in March
2005, after finalizing his affairs in Dubai;
Mr. Suleiman left Canada only twice
since March 2005 for short visits to Dubai to see his family;
Mr. Suleiman had places of residence
in Canada when he returned to Canada in 2005 and throughout the period of
reference, first with his cousin and afterwards in an apartment owned by his
brother;
Mr. Suleiman had not travelled
outside of Canada other than for his declared absences;
There were satisfactory explanations
for the absence of Canadian re-entry stamps on Mr. Suleiman’s passport, the
alleged “25 May 2005” stamp date and the UAE residence visa in Mr. Suleiman’s
passport.
[24] In view of these elements, it was
reasonable for the citizenship judge to conclude that Mr. Suleiman met the
residency requirement. I further note that this is not a situation where Mr.
Suleiman was close to the minimum number of days required to meet the physical
test of residence; even with some minor discrepancies in the evidence relating
to some travel dates, he was well above the 1095 day threshold.
…
[27] The Minister is right to point out
that there remains at all times a positive obligation on the citizenship
applicants to provide true, correct, and complete information and to refrain
from making false declarations. This however does not mean that corroborative
evidence is required on every single element. It is well recognized that the
Citizenship Act does not require corroboration on all counts; instead, it is “the
responsibility of the original decision-maker, taking the context into
consideration, to determine the extent and nature of the evidence required” (Canada
(Minister of Citizenship and Immigration) v El Bousserghini, 2012 FC 88 at
para 19 [El Bousserghini]). The citizenship judge may not have
reconciled the apparent discrepancy as clearly as the Minister would have liked
to see it in his reasons, or explained in as much detail as the Minister would
have hoped how Mr. Suleiman convinced the judge that the discrepancy did not
harm his credibility. But there is nothing to indicate that the judge’s finding
on Mr. Suleiman’s return to Canada prior to the beginning of the reference
period was not reasonable.
[37]
I note that the Court rarely intervenes unless
there are significant unaddressed inadequacies which make it impossible to
determine how the citizenship judge weighed the evidence, such as contradictions
between the decision and the record.
[38]
Although the citizenship judge’s decision may
not have explained in as great a detail the errors alleged by the Minister or
was not as clear as the Minister believed it should be, I am of the view that
the decision was reasonable when it is read with the record. I am satisfied
that the decision allows a reader to understand why the decision was made.
[39]
The citizenship judge applied the test from Pourghasemi.
As a result, the quantitative analysis of the number of days that the
respondent was physically present in Canada was central. The citizenship judge
addressed most of the evidence and gaps relating to the respondent’s travel
from Canada (when she would not be physically present in Canada): the
discrepancy between the residency questionnaire and the application form, and
the undeclared stamp. It is clear that the citizenship judge accepted the
respondent’s travel history, and related days that she was physically present
in Canada, as credible.
[40]
The citizenship judge is presumed to have
considered all of the evidence (Suleiman at para 23). In my opinion, the
gaps in the evidence that are noted by the applicant and that were not
specifically addressed by the citizenship judge do not likely reveal anything
that would make it impossible to determine how the citizenship judge came to
his conclusion:
- Lack of re-entry
stamps: The respondent’s affidavit indicates
that she stated at the hearing that she travelled with her husband and
that the passports were not stamped by Canadian officials. Like in Suleiman,
this information is not contradicted and there is nothing to suggest that
the citizenship judge did not take this explanation into account (at
paragraph 23).
- How the citizenship
judge was able to conclude that the respondent was physically present in
Canada for 1,095 days: The decision indicates
that the respondent’s record of absences was found to be credible and the citizenship
judge accepted that the discrepancy in dates was due to an error.
- It cannot
be ascertained where the respondent renewed her passport: The respondent explains that she stated at the hearing that
she received it from the Consulate and this evidence is not contradicted. Like
in Suleiman, there is nothing to suggest that the citizenship judge
did not take this into account (at paragraph 23).
- How her
income tax returns, which only included the first page of her notices of assessment
in 2006 and 2008, confirm her employment explanation: The respondent recounts in her affidavit that the citizenship
judge noted at the hearing that income tax returns do not necessarily
prove residency and did not request them, but they could have been
provided.
- Failure
to address that the respondent provided mostly passive indicators of
residence and the declared absences were not accompanied by reasons for
the absences: There is nothing to indicate
that the citizenship judge did not consider this evidence and he states
that he considered all of the evidence. Moreover, the respondent’s
affidavit states that the citizenship judge requested additional evidence
at her spouse’s hearing in response to the concerns raised by the
reviewing officer, and they provided this evidence, proof of the
self-employment activity and doctor’s visits.
- That the
declared absences were not accompanied by reasons for the absences: The affidavits explain that the citizenship judge inquired as
to the reasons for the absences. This information is not contradicted and
there is nothing to suggest that the citizenship judge did not take this
explanation into account.
- Evidence
relating to ESL classes: There is nothing to
suggest that the citizenship judge did not consider the evidence relating
to ESL classes. Moreover, whether the respondent attended ESL classes
would be unlikely to be dispositive of the application.
- Limited
evidence of children’s education: There is
nothing to suggest that the citizenship judge did not consider the
evidence of the children’s education. The respondent’s affidavit provides
that her husband stated at the hearing that these were the report cards
they could find.
- Failure
to refer to ICES report: In my opinion, the citizenship
judge was under no obligation to refer to the ICES report, despite
receiving consent to do so.
[41]
I note that, unlike in Suleiman, which I
rely on above, the citizenship judge did not specifically refer to the
reviewing officer’s concerns in his decision. However, he does generally note
the credibility concerns and deficient evidence in the respondent’s application
at the beginning of the decision.
[42]
It is not disputed that when the Minister is the
respondent in a matter, it is not proper for the Minister to submit affidavit
evidence from the decision maker to address shortcomings in the decision. That,
however, is not what happened in the present case. The respondent, who was the
applicant at the citizenship hearing, is offering the affidavit evidence, not
the decision maker. There was no transcript of the hearing and the affidavit
evidence relates to the evidence the citizenship judge considered. This Court
has accepted this type of affidavit evidence in the absence of a transcript of
the hearing before a citizenship judge.
[43]
For the above reasons, the application for
judicial review must be dismissed.
[44]
Neither party wished to submit a proposed
serious question of general importance for my consideration for certification.
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