Docket: T-446-15
Citation:
2015 FC 1318
Toronto, Ontario, November 26, 2015
PRESENT: The
Honourable Madam Justice Mactavish
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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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ABDUL-SATTAR Q MAHDI
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Respondent
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JUDGMENT AND REASONS
(Reasons
delivered orally in Toronto on November 25, 2015)
[1]
The Minister seeks judicial review of the
decision of a Citizenship Judge granting Canadian citizenship to Abdul-Sattar Q
Mahdi. I agree with the Minister that the Citizenship Judge failed to
meaningfully engage with significant evidence in the record that was before her
that called into question Mr. Mahdi’s claim to have been physically present in
Canada for 1138 days during the relevant period, with the result that the
decision was unreasonable.
I.
Preliminary Issue
[2]
Before turning to consider the reasonableness of
the Judge’s decision, I would note that Mr. Mahdi has filed an affidavit in
support of his application for judicial review that addresses a number of the
concerns that have been raised by the Minister.
[3]
Judicial review is, however, to be conducted on
the basis of the evidence that was before the decision-maker at the time that
the decision under review was made. While there are exceptions to this
principle – where, for example, the case raises a question of procedural
fairness or jurisdiction - Mr. Mahdi has not established that his new evidence
is admissible under one of the recognized exceptions to the general rule and it
will thus not be considered in relation to this application.
II.
The Reasonableness of the Citizenship
Judge’s Decision
[4]
In finding that the Citizenship Judge’s decision
was unreasonable, I would first note that there were irregularities in the
copies of the passports that Mr. Mahdi provided in support of his citizenship
application. While the documents purported to be notarized copies of the
originals, there were blank pages included in the copies that had not been
notarized, raising concerns as to the completeness of the copies and the
possibility of undisclosed travel.
[5]
As counsel for the Minister noted, undisclosed
travel is a particular concern in this case, given that Mr. Mahdi was only
slightly over the minimum requirement for physical presence in Canada.
[6]
Equally troubling was the fact that Mr. Mahdi
was issued a visa at the Canadian embassy in Jordan in July of 2010 allowing
him to re-enter Canada. Neither of Mr. Mahdi’s disclosed passports reflected
this visa, which strongly suggests that he may have had an additional passport
that had not been disclosed to Canadian citizenship authorities, further
heightening the concern with respect to undisclosed travel.
[7]
In these circumstances, it was incumbent on the Citizenship
Judge to make further inquiries, but no such inquiries were made, There was,
moreover, no attempt whatsoever to engage with this evidence or to address this
concern.
[8]
Another concern with respect to the accuracy of
Mr. Mahdi’s reported travel history related to the fact that he had close
family members (including his mother, three brothers and a woman that he had described
as his daughter) who had been living in the United States since 2008, yet he
claimed never to have visited them. The Citizenship Judge failed to question this
assertion in light of its inherent implausibility, and, more importantly, the
missing passport information.
[9]
Equally problematic is the fact that Mr. Mahdi
did not disclose the existence of his daughter living in the United States, and
he claimed that his mother was living in Iraq, when in fact she was living in
the United States.
[10]
There were additional problems with Mr. Mahdi’s
identification documents, including different names appearing on different
documents, and inconsistencies in his date of birth. There were also
inconsistencies in the evidence that Mr. Mahdi had provided as to where he was
living during the period under review, and unaddressed, lengthy absences in the
school attendance of Mr. Mahdi’s two children in 2007 and 2009. It is
noteworthy that these periods of absence corresponded to periods in the
children’s medical records where their previous history of regular attendance
at the doctor suddenly disappeared, a fact that was never addressed by the
Citizenship Judge. There was, moreover, a complete lack of banking information
for the 2007 year, another fact that was never addressed by the Citizenship
Judge.
III.
Conclusion
[11]
In this case, then, there were numerous
inconsistencies and gaps in the evidence, the effect of which was to raise
serious concerns with respect to Mr. Mahdi’s evidence regarding his physical
presence in Canada, his travel history, and the sufficiency of the evidence
documenting his presence in Canada.
[12]
The Citizenship Judge utterly failed to come to
grips with any of this evidence, with the result that the decision to grant
citizenship to Mr. Mahdi lacked the transparency, justification and
intelligibility required of a reasonable decision: Dunsmuir v New Brunswick, 2008 SCC 9 at para. 47, [2008] 1 S.C.R. 190.
[13]
Consequently, the application for judicial
review will be granted. I agree with the parties that the case is fact-specific
and that there is no question suitable for certification.
IV.
Remedy
[14]
As Mr. Justice Mosley noted in Canada
(Minister of Citizenship and Immigration) v Vijayan, [2015] F.C.J. No. 263
at paras. 90-95, the issue of remedy in cases such as this is complicated by
the fact that there have been intervening legislative changes. I agree with
Justice Mosley that, in the circumstances, the appropriate remedy is to return
this matter for redetermination by the Minister, who will determine whether or
not Mr. Mahdi meets the residence requirements under the Act. If the
Minister is satisfied that this is the case, he shall grant Mr. Mahdi
citizenship. If the Minister is not satisfied, he shall once more refer the
matter to a different Citizenship Judge for redetermination.
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