Docket: T-455-15
Citation:
2015 FC 1327
Ottawa, Ontario, November 30, 2015
PRESENT: The
Honourable Madam Justice Mactavish
|
BETWEEN:
|
|
THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
|
|
Applicant
|
|
and
|
|
TABUSSUM NASIM
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
The Minister of Citizenship and Immigration
seeks judicial review of the decision of a Citizenship Judge approving Tabussum
Nasim’s application for Canadian citizenship. The Minister alleges that the
Citizenship Judge erred in his application of the physical presence test for
residency in Canada. Although Ms. Nasim did not respond to the Minister’s
application, she did appear at the hearing. The Minister consented to her
making submissions opposing the application, and Ms. Nasim’s husband spoke
on her behalf.
[2]
For the reasons that follow, I have concluded
that the Citizenship Judge’s decision was unreasonable as the Judge’s reasons
do not allow me to understand how he came to the conclusion that Ms. Nasim
had satisfied the residency requirement of the Citizenship Act, R.S.C.
1985, c. C-29. The application will therefore be granted.
I.
Background
[3]
In reviewing Ms. Nasim’s application for
Canadian citizenship, a citizenship officer noted a number of concerns with
respect to the sufficiency of the evidence that Ms. Nasim had provided to
establish her physical presence in Canada during the period under
consideration.
[4]
Amongst other things, the citizenship officer
noted that although Ms. Nasim claimed to have been employed at Subway and
Pizza Pizza restaurants during the relevant period, she did not provide any
letters of employment from her employers, and the T-4 tax forms that she did
provide identified her employers as various numbered companies. The officer
also noted that the banking and credit card records provided by Ms. Nasim
were incomplete. There was, moreover, information in the record suggesting that
Ms. Nasim may have been a resident of the United States, and that her
immigration status in that country was unclear. Because of these concerns, Ms. Nasim’s
citizenship application was referred to a Citizenship Judge for consideration.
[5]
After interviewing Ms. Nasim, the
Citizenship Judge approved her application for citizenship. The Citizenship
Judge’s decision is brief, and his analysis consists of the following two
paragraphs:
[9] The statement of the applicant
about her physical presence in Canada of 1,192 days is confirmed by her
relevant passport and the ICES report, and cannot be disputed according to the
documentation available. After a long and in-depth interview during the
hearing, I can conclude that, on the balance of probabilities, the applicant
complies with the residence requirements of the Citizenship Act.
[10] Given the foregoing, and referring
to the residency test set by Muldoon J. in Pourghasemi (Re): [1993]
F.C.J. No. 232, I find that, on a balance of probabilities, the Applicant has
demonstrated that [s]he resided in Canada for the number of days [s]he claimed
to reside in Canada and has therefore met the residence requirement under s.5
(1) (c) of the Act.
[6]
In my view, these reasons are insufficient.
II.
Analysis
[7]
It is true that adequacy of reasons is no longer
a “stand-alone” basis for judicial review: Newfoundland
and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board),
2011 SCC 62 at para. 12, [2011] 3 S.C.R. 708. That said, the direction in Newfoundland
Nurses that courts pay respectful attention to the reasons “which could be offered in support of a decision” is
not “carte blanche to reformulate a tribunal's decision
in a way that casts aside an unreasonable chain of analysis in favour of the
court's own rationale for the result”: Alberta (Information and
Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 at para.
54, [2011] 3 S.C.R. 654.
[8]
Indeed, as Justice Rennie noted in Komolafe
v. Canada (Minister of Citizenship and Immigration), 2013 FC 431 at para
11, [2013] F.C.J. No. 449, Newfoundland Nurses “is
not an open invitation to the Court to provide reasons that were not given, nor
is it licence to guess what findings might have been made or to speculate as to
what the tribunal might have been thinking. This is particularly so where the
reasons are silent on a critical issue”.
[9]
At the end of the day, the reasons provided by a
Citizenship Judge must allow the reviewing court to understand why the Judge
made the decision that he or she did. They must, moreover, permit the Court to
determine whether the Judge’s conclusion was one “within the range of
acceptable outcomes” as contemplated by Dunsmuir v. New Brunswick, 2008
SCC 9 at para. 47, [2008] 1 S.C.R. 190.
[10]
In this case, there were American income tax
returns for years during the period under review for both Ms. Nasim and
her husband, which listed an American address for the couple. There was also
information indicating that Ms. Nasim held an American “Green Card”, giving her permanent residency in the
United States. This information suggested that Ms. Nasim may have been
resident in the United States during the relevant period.
[11]
The Citizenship Judge noted in his reasons that
he had conducted a “long and in-depth interview”
with Ms. Nasim, following which he was satisfied that she had met the Re
Pourghasemi physical presence test. It may well be that Ms. Nasim was
able to provide the Citizenship Judge with additional information regarding her
whereabouts during the period under consideration that was sufficient to allay
any concerns in that regard. Unfortunately, we have no way of knowing whether
that was in fact the case, as the Citizenship Judge makes no mention of any such
additional information in his reasons, there is no transcript or notes of what
was said, and Ms. Nasim did not provide an affidavit explaining what was
discussed during her interview with the Citizenship Judge.
[12]
The Citizenship Judge did note that Ms. Nasim
had held a Green Card at the time that she had applied for Canadian
citizenship, but that she had since given it up. We have no way of knowing from
the Judge’s reasons, however, when that occurred, or how, in the Judge’s view,
it affected the residency calculation.
[13]
Similarly, there were inconsistencies in the
evidence that Ms. Nasim had provided with respect to her employment in
Canada. The T-4 tax forms provided by Ms. Nasim were inconsistent with the
periods of employment that she had declared in her Residence Questionnaire, and
a Record of Employment that she produced indicated that she had ceased working
for a Subway restaurant in 2007, whereas her Residence Questionnaire indicated
that she was still working for Subway in 2011.
[14]
Once again, Ms. Nasim may have been able to
clarify the situation in the course of her interview with the Citizenship Judge,
but as the reasons are silent on this issue, I have no way of knowing whether
this was in fact the case, nor can I determine whether the Judge’s assessment
of any explanation that had been provided by Ms. Nasim was reasonable.
[15]
This is thus a case where the reasons provided
by the Citizenship Judge do not permit the Court to understand how the Judge
arrived at his conclusion that Ms. Nasim had satisfied the residency
requirement of the Citizenship Act. As a result I cannot determine
whether that decision was reasonable: D’Errico v. Canada (Attorney General),
2014 FCA 95, 459 N.R. 167.
[16]
Consequently, the application for judicial
review will be granted. I agree with the parties that the case is
fact-specific, and does not raise a question for certification.
III.
Remedy
[17]
Recent amendments to the legislation affect the
remedy that is appropriate in a case such as this: Canada (Minister of
Citizenship and Immigration) v. Vijayan, 2015 FC 289 at paras. 90‑95,
[2015] F.C.J. No. 263. I will therefore order that the matter be returned to
the Minister for redetermination. The Minister shall determine whether Ms. Nasim
meets the residence requirements of the Act. If the Minister is satisfied that
this is the case, he shall grant her citizenship. If the Minister is not
satisfied that Ms. Nasim meets the requirements of the Act, he shall once
again refer the matter to a Citizenship Judge for decision.
Email this Content