Date: 20161006
Docket: T-320-16
Citation:
2016 FC 1120
Ottawa, Ontario, October 6, 2016
PRESENT: The
Honourable Madam Justice McVeigh
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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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SOGUL GHAFFARI
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Respondent
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JUDGMENT AND REASONS
I.
Background
[1]
The Applicant, the Minister of Citizenship and
Immigration [the Minister], challenges a decision of Citizenship Judge Angelo
Perschilli [the Citizenship Judge], dated January 28, 2016.
[2]
The impugned decision approved the application
submitted by Sogol Ghaffari [Ms. Ghaffari], for a grant of Canadian citizenship
under paragraph 5(1)(c) of the Citizenship Act, RSC 1985, c C-29 [the Act].
In the style of cause her name is spelt Sogul but the proper spelling is Sogol.
[3]
I am satisfied that Ms. Ghaffari was served with
the materials including the order with the date of the hearing. The Applicant
and the Registry attempted to speak with Ms. Ghaffari several times including
as late as the day before the hearing but were unable to reach Ms. Ghaffari via
telephone. Previously, the Registry was told by someone who answered the phone that
Ms. Ghaffari was in England. Ms. Ghaffari did not file material or choose to
attend the hearing. I will make the decision based on the materials filed and
the Certified Tribunal Record [CTR] as Ms. Ghaffari has chosen not to file
materials or to appear at the hearing.
[4]
Ms. Ghaffari did not meet the minimum three
years residency required under the Act therefore the Citizenship Judge chose to
make a determination using the Papadogiorgakis legal test (Re:
Papadogiorgakis, [1978] 2 FC 208 at paras 15-17 [Papadogiorgakis]).
[5]
The Applicant argues that the Citizenship Judge’s
decision using the Papadogiorgakis test was unreasonable based on the
evidence and reasons that was before him. I agree and will set aside this
decision and send it back to be re-determined by a different officer.
[6]
Ms. Ghaffari is a citizen of Iran who arrived in
Canada on August 11, 2007, becoming a permanent resident on the same day. She
is married to a Canadian Citizen and has one child born in Canada and one in
Iran in 2012.
[7]
Ms. Ghaffari had to prove that she resided in
Canada for at least 1,095 days in the four years prior to submitting her
application [the relevant period] (paragraph 5(1)(c) of the Act). The relevant
period for the purposes of the residency requirements was August 11, 2007, the
day she first arrived in Canada, to January 19, 2011. Ms. Ghaffari declared
1,056 days of presence and 199 days of absence over the 1257 days in the
relevant period. After a revision, she was still 36 days short of the
legislated required days.
[8]
Initially, a Citizenship Officer [the officer] reviewed
her file and found that it needed to proceed to a hearing before a Citizenship
Judge. The officer noted that he was “unable to confirm
[the] applicant’s establishment in Canada.”
[9]
In her citizenship application, in addition to
the shortfall of days, the officer noted the following concerns that needed to
be addressed:
•
That Ms. Ghaffari had zero time in Canada before
and after the relevant time. She signed her application the day before she left
for Qatar and has only returned to Canada on one occasion for her citizenship
test in December 2014 after failing to appear on October 24th, 2011 and May
1st, 2012. The officer was concerned that her application had no documents to
prove establishment in the relevant time period.
•
Ms. Ghaffari stated she was accompanying her
Canadian spouse overseas for work. The officer’s online search showed her
husband as a director of three United Kingdom (UK) companies with Ms. Ghaffari’s
brothers also being linked to the UK companies. The officer was concerned that
the husband’s work did not seem temporary.
•
The officer indicated that some of these
absences were unverified, as the passports Ms. Ghaffari had submitted were
missing pages or did not include translations for Iranian stamps. The stamps
that were present do confirm the other five (5) absences declared.
•
Ms. Ghaffari submitted no documentation to
indicate that she maintained a residence in Canada other than a lease agreement
for a residential property in Waterloo that had been signed in Qatar by her
spouse after the relevant period. A contract for sale of their house after the
relevant period was also provided, as was an address in Waterloo that was
linked to her son and another Iranian family.
•
The officer noted that Ms. Ghaffari was a
housewife who had never worked in Canada and never filed an income tax return
in Canada.
•
It was also observed that the only social ties
that she had included in her residence questionnaire were in reference to a
mom’s group in Doha, Qatar.
•
No active documents were provided to show
residence other than her son’s birth certificate in Canada.
•
The officer noted Ms. Ghaffari’s Permanent Resident
card expired in September 2012 and that she did not submit for renewal until
January 2014. At that time she claimed to be absent from Canada with her
husband for 1168 days.
[10]
The Citizenship Judge said in the decision that
he had acknowledged the concerns raised by the officer and addressed them with
Ms. Ghaffari. While recognizing that some of the “strictly
traditional elements” associated with Canadian citizenship were absent,
he was satisfied that Ms. Ghaffari had met the requirements for residency under
the Papadogiorgakis test and granted Citizenship.
[11]
In the CTR there are no notes by the Citizenship
Judge of the interview. The CTR does include the material submitted by the
Applicant upon which the Citizenship Judge made his determination.
II.
Issue
[12]
The issue I must determine is whether the
Citizenship Judge’s application of the citizenship test was reasonable (Huang
v Canada (Minister of Citizenship and Immigration), 2013 FC 576 at para 13
[Huang]).
III.
Standard of Review
[13]
The question of whether or not an applicant for
citizenship has met the residency requirement is a question of mixed fact and
law and will be reviewed on a standard of reasonableness (Zhang v Canada
(Minister of Citizenship and Immigration), 2008 FC 483 at paras 7-8 [Zhang]).
IV.
Analysis
[14]
The Act does not define the term “residence” and Citizenship Judges are entitled to
choose from one of three tests established by the jurisprudence in determining
whether a citizenship applicant has established residence (Huang, above
at para 37). Of the three tests available, the Citizenship Judge applied the Papadogiorgakis
test. Irrespective of which test he applied the applicant for citizenship bears
the onus of providing sufficient credible evidence for assessment, in this case
the qualitative assessment of residency.
[15]
The Papadogiorgakis test looks to the
quality of the applicant's attachment to Canada and recognizes that a person
can meet the residency requirement, even while temporarily absent, by
maintaining a strong attachment to Canada and “without
closing out or breaking the continuity of maintaining or centralizing his
ordinary mode of living” in Canada (Papadogiorgakis, at
para 17). This test is a more qualitative assessment than the strict residency
test in Re: Pourghasemi, [1993] FCJ No 232. The Papadogiorgakis
test is often characterized as the Citizenship Judge determining two steps:
first, whether the applicant is short of the minimum 1,095 days of physical
presence in Canada; and second, whether the applicant has “centralized mode of life in Canada”. This test allows
for absences from Canada during the relevant period to count towards residency
where the absences are temporary and the applicant can establish a centralized
mode of living in Canada. Positive indicators of this include but are not
limited to a permanent home in Canada, established before leaving and maintained
for the purpose of permanent return.
[16]
The test of Papadogiorgakis is justified
on the basis that a centralized place of residence in Canada negates a
temporary -- even lengthy -- absence from Canada.
[17]
On the facts of Papadogiorgakis, the
applicant was a student attending postsecondary school in the United States. Justice
Thurlow instructed that the applicant still needed to be physically in Canada
for more than 80% of the three years. The evidence was that Papadogiorgakis had
resided in Canada for an additional three years before the citizenship
determination period so he had already centralized his mode of living with its
accessories in Nova Scotia. Justice Thurlow directed that the person needs to
have lead other probative evidence on their integration into Canada with family
and education which would support their ordinary mode of living to have been in
Canada. Using this test the evidence must show the quality of the attachment to
Canada. A sufficient factual foundation to make such a finding will only be
disturbed by this Court if unreasonable.
[18]
In light of the evidence before the Citizenship
Judge and given the materials in the CTR, in the Court’s opinion the decision
of the Citizenship Judge is unreasonable. From a review of the evidence before
me that does not include any notes from the interview, I can only conclude that
the usual signs of residency were not considered and other factors which are
irrelevant were considered. Ms. Ghaffari could not meet the test as there was
no evidence that she centralized her mode of living in Canada either before or
after the relevant period. The Citizenship Judge was unreasonable as Ms.
Ghaffari produced limited evidence of any attachment to Canada during the
relevant period and certainly not the demonstration of an established residence
before leaving Canada that the legal test requires.
[19]
A Citizenship Judge is assumed to have
considered all the evidence on the record (Canada (Minister of Citizenship
and Immigration) v Samaroo, 2016 FC 689 at para 30). However, there are
several critical points which were entirely omitted in the reasons.
[20]
The Citizenship Judge did not consider the fact Ms.
Ghaffari did not live in Canada prior to or following the relevant period. Further
the Citizenship Judge ignored the fact that her residency outside of Canada was
not of a temporary nature. Ms. Ghaffari could give no evidence of ties to
Canada and her only ties were of a play group in Doha. She had no evidence of
volunteering, religious ties, friends, neighbourhood affiliation, residential
home in Canada or any of the other indicia that is seen as being integrated
into Canadian society. Though her husband was born and had family in Canada
there was no evidence of those family ties or social ties that would show
integration into Canadian society. Nor is there any indication that her absence
from Canada was of a temporary nature. In fact even when the family lived in
Canada for part of that period while residing in Ottawa they lived in a hotel
and from her evidence she was not able to participate in Canadian society. There
is little if any evidence of the second child ever having been in Canada.
[21]
The Citizenship Judge, though acknowledging that
Ms. Ghaffari does not own property in Canada, found that the family does not
own property anywhere. The Citizenship Judge appears to have ignored that after
selling their residence in Canada there was no active evidence that they were
going to return. In fact, the evidence was that the husband’s job out of Canada
was not temporary and there is no return to Canada in the foreseeable future.
[22]
The missing pages of the passport were explained
– all blank pages – but the stamps were never translated which the Citizenship Judge
chose to ignore. While this evidence is more attuned to proving the number of
days of physical residency, it was ignored by the Citizenship Judge despite
being raised as an issue by the officer.
[23]
There was no real evidence that Ms. Ghaffari was
establishing a central mode of residency in Canada. She had never previously lived
in Canada and failed to centralize her mode of life before she left Canada to
follow her husband. In no way is this criticism or comment on the explanation
of why she lives with her husband; it is only that the evidence upon which the
Citizenship Judge relied was vague and incomplete.
[24]
You would expect the Citizenship Judge to give
persuasive reasons why he found Ms. Ghaffari met the test. The evidence the Citizenship
Judge used to make the decision were all passive indicators such as
contributing into a RESP or the retention of her son’s umbilical cord in Canada.
Passive indicators do not centralize a person’s presence in the country because
they often do not require an applicant to be in Canada or arise out of circumstantial
necessity. By contrast, active indicators demonstrate an ongoing commitment
that builds ties to a community. For example, Ms. Ghaffari’s child was born in
Canada so the collection of its umbilical cord would logically have to be in
Canada. Another passive indicator was that she had started the process to
sponsor her parents without a plan or timeframe for everyone to move to Canada
which might indicate a commitment to remaining here. Rather, she led evidence that
she would continue to move with her husband whose out of Canada employment was
not of a temporary nature.
[25]
Without notes on the CTR, I cannot say the
decision is reasonable given the only explanation the Citizenship Judge gave
was that even though the “strictly traditional elements
of Canadian Citizenship” were absent he was granting citizenship. The
Citizenship Judge’s reasons based on the evidence before him does not meet the
test set out in Papadogiorgakis to show a qualitative attachment or
centralized mode of living in Canada.
[26]
The officer set out clearly the areas of concern
that had to be determined. In the case at bar, the court notes that the Citizenship
Judge says he was satisfied with respect to the referring officer’s concerns
but he does not in his reasons explain how he was satisfied. Either the
concerns of the officer were ignored or the Citizenship Judge failed to address
them. The reasons need to be clear and precise so that it is known by the
parties and the court why the decision was made. It was unreasonable for the Citizenship
Judge to not address the areas of concern in his decision. These gaps in
reasoning make this decision unreasonable.
[27]
The court is of the opinion that the conclusion
reached by the Citizenship Judge had no basis and as such the decision does not
fall within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law.
JUDGMENT
THIS COURT’S JUDGMENT is that:
1.
The appeal is granted;
2.
The decision of the Citizenship Judge granting Ms.
Ghaffari citizenship is quashed;
3.
The decision is sent back to a different officer
to make a new determination.
"Glennys L. McVeigh"
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