Docket: T-1322-14
Citation:
2015 FC 245
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa,
Ontario, February 26, 2015
PRESENT: The Honourable Madam Justice Gagné
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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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MAHMOUD RIAD SAAD
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Respondent
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JUDGMENT AND REASONS
[1]
This is an appeal pursuant
to section 14(5) of the Citizenship Act, RSC, 1985, c C-29 (the Act) of
a decision by a citizenship judge, dated March 31,
2014, granting Canadian citizenship to the respondent, Mahmoud Riad Saad.
[2]
This is the second time this matter is before
me. On May 29, 2013, I allowed the respondent’s appeal and set aside the
decision by a different citizenship judge denying him Canadian citizenship (Saad
v Canada (Minister of Citizenship and Immigration), 2013 FC 570 [Saad-1]).
[3]
The applicant essentially argues the judge’s
lack of reasons and the unreasonableness of his decision, in light of the
concerns listed by the immigration officer regarding the proof of residency submitted
by the respondent. Paragraph 5(1)(c) of the Act requires a citizenship applicant to have, within the four years
immediately preceding the date of his or her application, accumulated at least
three years of residence in Canada.
[4]
For the reasons that follow, this appeal is
allowed.
I.
Relevant facts
[5]
The respondent, a citizen of Lebanon, entered
Canada on December 20, 2001, and became a permanent resident on January 19,
2007. On February 23, 2012, his citizenship application was refused on the grounds that he did not fulfill the residency requirement
set out in paragraph 5(1)(c) of the Act.
[6]
On May 29, 2013, I allowed his appeal and
referred the matter back to a different citizenship judge for redetermination.
Here are a few excerpts from my decision in Saad-1:
[19] For
the reasons that follow, I am of the opinion that this Court must intervene, as
the citizenship judge could not apply two distinct tests to determine whether
the applicant met the residency requirement set out in paragraph 5(1)(c) of the Act. If physical presence in Canada can
be proved for the prescribed minimum number of days during the reference
period, there is no need to present qualitative evidence to show the
applicant's degree of integration into Canadian society or to justify the applicant's
absences (Canada
(Minister of Citizenship and Immigration) v Talka, 2009 FC 1120; Canada (Minister of Citizenship and Immigration)
v Salim, 2010 FC 975; Canada (Minister of
Citizenship and Immigration) v Elzubair, 2010 FC 298). Since this conclusion alone disposes of the
applicant's appeal, there is no need for me to address the second issue.
. . .
[21] As I
recently stated in Ghosh v Canada (Minister of Citizenship and Immigration), [2013] F.C.J. No. 313, I am of the opinion
that residence in Canada within the meaning of the Act requires proof of
physical presence in Canada, especially since subsection 5(1) of the Act gives
the Minister little discretion in the matter. The Minister must grant an
applicant citizenship if he or she meets the requirements set out in the Act
(see also Martinez-Caro
v Canada (Minister of Citizenship and Immigration), 2011 FC 640).
[22] I
also share the opinion that the citizenship judge must indicate the residency
test used and explain why he or she decided that the requirements were or
were not met (Canada (Minister of Citizenship and Immigration) v
Behbahani, 2007 FC 795;Al-Showaiter).
. . .
[25] Regarding
physical presence in Canada, it bears noting that the applicant reported an
absence of 44 days, which his passport confirms. In his written submissions,
the respondent submits that the citizenship judge chose and applied the Koo test, which indicates that the applicant has
not proved a physical presence in Canada. At the hearing before this Court, the
respondent submitted that it is possible that the applicant visited other
countries during the reference period, such as the United States, and that his
passport was not stamped when leaving or re-entering Canada. This is highly
speculative, and it would have been relatively easy for the respondent to
verify with the Canada Border Services Agency whether the applicant's entries
and exits during the reference period matched those appearing in his passport.
No such verification was done.
[26] The
evidence considered by the citizenship judge does not tend to contradict the
applicant's physical presence in Canada, but it does cast doubt on how he spent
his time here and on the fact that he allegedly reported all of his income for
the period concerned. The citizenship judge did not explain why the applicant's
passport was not persuasive evidence of his physical presence in Canada, and
she could not use elements of one or more of the other residency tests to
reject that evidence, just as she could not submit the evidence to two tests at
the same time.
[7]
A new citizenship officer was seized with the
matter, and she reiterated the concerns raised during the first analysis of the
case, which led to the negative decision of the first judge, and she submitted
her report to the second judge.
[8]
On January 24, 2014, the respondent received a
notice of hearing.
[9]
On February 7, 2014, the respondent gave consent
to the Canada Border Services Agency (CBSA) to disclose the details of his
history of entries into Canada to Citizenship and Immigration Canada (CIC) in
order to assist CIC in determining his citizenship eligibility.
[10]
On March 31, 2014, the respondent’s application
was approved by a second citizenship judge.
II.
Impugned decision
[11]
The reasons for that decision are handwritten on
the back of the form entitled “Minister’s Opinion,”
under the heading “Note to File.” I
reproduce them in full:
[I]nterviewed applicant & examined
documents 07 Jul(sic) 2014.
[A]pplicant entered Canada 20 Dec 2001. Landed 19 January 2007.
Filed for C.C.20 April 2009. The relative material period is 19 Jan. 2007 - 20
Apr. 2009 plus ½ day for everyday between 26 April 2005 - 17 January 2007 =
1141 days
[A]bsences declared 44 days.
[P]hysical presence 1097 days. The Act requires 1095 day. Applicant
complies.
[N]ote: the absences in the passports corresponds(sic) with
application and info stated.
[T]he ICES report supports the statements made
by the applicant at the hearing. Madam Justice Gagné states:
par 21 - must grant if meets res.
physical presence.
par 25 - verification – ICES - has now
been done matches within the relative material period.
par 26 - although we do not know “how
the applicant spent his time” the Act only requests 1095 days with the relevant
mat. period”.
- The applicant complies with 5(1)c)
of the Act.
III.
Issue and standard of review
[12]
This appeal raises the following issue:
−
Did the second judge commit a reviewable error
by granting the respondent Canadian citizenship?
[13]
Since the adequacy of reasons is no longer a
freestanding ground for judicial review, the standard of review applicable to
this Court’s review of that issue is reasonableness (Newfoundland and
Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62; Canada (Minister of Citizenship and Immigration) v Raphaël,
2012 FC 1039, at paragraph 15 [Raphaël]; Canada (Minister of
Citizenship and Immigration v Abou-Zahra), 2010 FC 1073, at paragraph 16; (Canada (Minister of Citizenship and
Immigration) v Al-Showaiter) [Al-Showaiter], 2012 FC 12, at paragraph 13; Pourzand
v Canada (Minister of Citizenship and Immigration), 2008 FC 395,
at paragraph 19).
IV.
Analysis
[14]
The applicant argues that the citizenship judge
failed to provide adequate reasons for his decision as it is impossible to
understand why the chosen residency test was or was not met (Canada
(Minister of Citizenship and Immigration) v Jeizan, 2010 FC 323 [Jeizan],
at paragraphs 15 to 18; Al-Showaiter, above, at paragraph 21). The
applicant adds that the decision does not result from an analysis of the
respondent’s situation and that while the test chosen by the judge is clear (actual, physical presence in Canada for a total of three
years), the evidence before him is clearly insufficient to demonstrate
such physical presence and there is nothing in the
reasons that would allow an understanding of how the judge addressed the
insufficiency of the evidence.
[15]
These deficiencies are listed in the citizenship
officer’s note recommending a hearing. The applicant submits that the concerns
and deficiencies raised were certainly relevant to the credibility of the
respondent and he contends that the judge erred by not addressing them.
[16]
According to the applicant, Seiffert v Canada
(Minister of Citizenship and Immigration), 2005 FC 1072, at paragraphs 8 to
11, confirms that a citizenship appeal can be granted,
as in this case, for failure to provide a proper
analysis of the evidence. The applicant also relies on the decision of
this Court in Raphael, above, at paragraphs 22, 24, 26 and 28.
[17]
As for the respondent, he submits that the evidence
was held to be admissible and convincing. The citizenship judge had before him
physical evidence establishing the respondent’s physical presence, which suggests
that the decision made is well-substantiated and reasoned.
[18]
With respect, I share the applicant’s opinion
that the reasons and analysis of the second citizenship judge are inadequate. The
judge was required to indicate which residency test was used, which he did, but
he was also required to explain why the requirements were met, which he did not
do. Relying on paragraph 25 of my decision in Saad 1, he merely
made a vague reference to one piece of evidence, the report by the Canada
Border Services Agency (CBSA), without taking into account and analyzing all of
the evidence.
[19]
First, the citizenship officer’s notes read as
follows [emphasis added]:
. . .
On banking statements, we see frequent
withdrawals from the client’s account towards Variété Plus Mo from December
2007 to February 2009. These amounts are almost exclusively without pennies
(for example: $ 100.00, $60.00,…). Therefore, they are probably not bill
amounts of things the client bought in the store. These withdrawals fall during
the period that the client claimed to have been working there but do not cover
the entire period (he claimed to have started working there in April 2007). In
addition, it does not appear that a certain amount is deposited in the client’s
account as a pay check from Variété Plus Mo. It should also be noted that
client claimed to have always lived at 328 Mont-Royal for the entire reference
period for citizenship, which is right beside Variété plus(sic) Mo., and no
such transactions appeared before or after the period of December 2007 to
February 2009. Verifications are required with client regarding these
withdrawals and where his pay checks are deposited.
Revenues declared for Income Tax for 2008 and
2009 are almost identical. Yet, client worked for Variété Plus for the entire
year of 2008 and in 2009 only claimed to have been working for his own
business: IT Media Plus.
-No document was provided regarding the
client’s own businesses(sic): IT Media Plus.
[20]
These elements must be analyzed having regard to
the chosen citizenship test, which was not clearly done by the first citizenship
judge and not even addressed by the second citizenship judge. The issue is not
the quality of the respondent’s integration into Canadian society, but rather
whether the evidence presented supports a finding that he was physically in
Canada during the relevant period.
[21]
The judge also failed to consider the
citizenship officer’s comments when she issued the following cautions about the
reliability of CBSA reports and the information in the passport itself:
. . .
- Note: CBSA report has limitations. Even if
the client would have provided a record from CBSA, the exits of Canada are NOT
recorded by CBSA. In addition, the entries are only indicated in the report if
a travel document (passport or permanent resident card) has been scanned.
Travel documents are not systematically scanned at Canada’s points of entry.
Finally, we can’t rely on the passport only since many countries do not stamp
the passport when travellers enter and exit a country but rather stamp travel
cards for example. This is the case for Lebanon. Also, clients may have more
than one passport valid at the same time.
[22]
Again, the citizenship judge was required to
consider that information, which was at the heart of the matter before him. I
adopt the words of Justice de Montigny in Jeizan, at paragraph 17
[emphasis added]:
17 Reasons for decisions are adequate when they are
clear, precise and intelligible and when they state why the decision was
reached. Adequate reasons show a grasp of the issues raised by the evidence,
allow the individual to understand why the decision was made and allow the
reviewing court to assess the validity of the decision. . . .
[23]
It is clear that the reasons for the impugned
decision were not adequate and that they did not show a grasp by the judge of
the issues raised by the evidence and its weaknesses.
[24]
However, since it is
not up to this Court to weigh and reassess the evidence submitted (Raphaël,
above, at paragraph 28), this appeal will be allowed.
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