Docket: T-797-16
Citation:
2016 FC 1251
Vancouver, British Columbia, November 9, 2016
PRESENT: The
Honourable Mr. Justice Campbell
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BETWEEN:
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MOHAMMAD REZA
BADIEI
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Applicant
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and
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THE MINISTER OF
IMMIGRATION, REFUGEES AND CITIZENSHIP
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Respondent
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JUDGMENT AND REASONS
[1]
The present Application concerns the March 30,
2016 decision of a Citizenship Judge in which the Applicant’s application for
citizenship was not approved. The issue for determination by the Citizenship Judge
was whether the Applicant met the residence requirement of 1095 days of
physical presence in Canada during the period August 31, 2007 to August 31,
2011 pursuant to s. 5(1)(c) of the Citizenship Act RSC 1985, C-29.
[2]
Counsel for the Applicant argues that the
decision under review is unreasonable because the Citizenship Judge failed to
conduct his own assessment of the evidence of the Applicant’s physical presence.
I agree with this argument.
[3]
The Applicant had the evidentiary burden to provide
evidence to establish his physical presence in Canada on a balance of
probabilities, and attempted to do so. Only four paragraphs of the decision
under review provide the Citizenship Judge’s findings:
[28] Having reviewed all of the
documentation submitted by the Applicant, after having personally interviewed
the Applicant, I am not satisfied that, on a balance of probabilities, that
the declarations on either the original declaration or residence questionnaire
or later submitted dates of absences accurately reflected the number of days
that the Applicant was physically present in Canada in the relevant period.
[…]
[30] I
am unable to determine the exact number of days the Applicant was absent from Canada
in the relevant period because the Applicant was not able to provide accurate
dates of absences indicated by all the undeclared absences of the ICES report.
I agree with legal counsel that the entries on March 22, 2008 and October 21,
2010 were within declared absences and Applicant's presence in Canada increased;
however, I am unable to determine the exact number of days that the Applicant
was in Canada.
[…]
[33] Based
on the citizenship officer's calculation, the Applicant was at least 419
days absent from Canada in the relevant period. The Applicant was 1,041 days in
Canada in the relevant period, 54 days short of the required 1,095 days of
presence in Canada under the Citizenship Act.
[34] Based
on a preponderance of proof of the information in the file and the evidence at
the hearing, I find the Applicant was not sufficiently in Canada in the
relevant period for at least 1,095 days under the required Citizenship Act.
[Emphasis added]
[4]
In my opinion, the passages quoted exhibit a
fundamental failure in decision-making. To meet the standard of intelligibility
and transparency, the Citizenship Judge was required to clearly articulate findings
supported by evidence to substantiate any conclusion reached. With respect to
paragraph 30, I find that the Citizenship Judge failed to meet the requirement to
make findings supported by evidence to substantiate the apparent conclusion
that the Applicant had not met his evidentiary burden.
[5]
Reached prior to the application being sent to
the Citizenship Judge for decision, the opinion quoted in paragraph 33 is that
of the Officer who considered the Applicant’s declared absences in the filed Residence
Questionnaire. I find that the Citizenship Judge’s deferral to the opinion constitutes
an abdication of the responsibility to decide, which only the Citizenship Judge
could discharge. Therefore, the Officer’s opinion cannot form the conclusion to
the Applicant’s application.
[6]
And as to the global conclusion at paragraph 34,
it only has relevance and weight if the necessary analytical fact-finding had
been conducted. As stated, it was not conducted.
[7]
For the reasons provided, I find the decision
under review is unreasonable.
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