Docket: T-1582-15
Citation:
2016 FC 421
Halifax, Nova Scotia, April 15, 2016
PRESENT: The
Honourable Madam Justice Strickland
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BETWEEN:
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HASSAN AFKARI
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
This is an appeal by Hassan Afkari, the
Applicant, of the decision of a Citizenship Judge, dated June 25, 2015, which
found that the Applicant did not meet the residency requirements of s 5(1)(c)
the Citizenship Act, RSC 1985, c C-29 (“Citizenship Act”).
Background
[2]
The Applicant is an Iranian citizen. He arrived
in Canada on January 18, 2008, together with his wife, two sons and two
daughters. They arrived as permanent residents. Two other children did not
accompany the family. Prior to coming to Canada, the Applicant held a
residence permit for and lived in Kuwait with his family where he was the
managing partner and a 50 percent shareholder of a textile company. He claims
that in January 2008 he sold half of his interest in the company to his son,
who remained in Kuwait. He retained a 25 percent interest in the company to
provide him with income but that his role was subsequently informal, advisory
and unpaid.
[3]
On February 25, 2014 the Applicant applied for
citizenship. The relevant period under s 5(1)(c) of the Citizenship
Act is from February 25, 2010 to February 24, 2014. In his application,
the Applicant claimed 1095 days of physical presence and 365 days of absence. He
was issued and completed a Residence Questionnaire which was received by
Citizenship and Immigration Canada (“CIC”) on June 18, 2014. On March 17, 2015
a CIC officer (“CIC Officer”) completed a File Preparation and Analysis
Template (“FPAT”) and calculated 1068 days of physical presence and
absences totalling 392 days, for a shortfall of 27 days in the relevant period.
[4]
A comment in the FPAT noted that, in his
citizenship application, the Applicant had declared being a permanent resident
of Kuwait since October 29, 2013. However, his passport indicated four Kuwaiti
residence permits having been issued and expired during the relevant period,
the first commencing on December 25, 2008. Additionally, that the Applicant
could provide only passive indicators of residence, that no explanation had
been provided for the shortfall and that no documentation had been provided as
to clients, billings, income or advertising of his company in Kuwait. The CIC
Officer referred the file to a citizenship judge for determination.
Decision Under Review
[5]
The Citizenship Judge provided a brief introduction
and fact summary. In her analysis she noted that the Applicant claimed that
his residency status in Kuwait was necessary because he would not be permitted
to own property or a business there without a residence visa, nor to visit his
children and grandchildren. She then identified the concerns identified by the
CIC Officer in the FPAT and structured her analysis around those issues.
[6]
On the issue of the Applicant’s permanent
residence in Kuwait, the Citizenship Judge noted that the Applicant had declared
on his application that he had obtained his Kuwaiti residence status on October
29, 2013, but that his passport shows several residence permits dating before
2013. When asked about this at the hearing, the Applicant explained that the
discrepancy was caused by an error in interpretation and he only filled in the
date of his most recent permit. However, his passport showed that he had been
in Kuwait for twenty years. When asked to explain how he could be permanent
resident of both Kuwait and Canada, he stated that the Kuwaiti residence visas
were merely a legal requirement to maintain his property, business and family
visitation rights. As long as he returns every six months it can be renewed,
however, that residence permits are no longer being given to Iranians. Thus,
should he fail to renew or cancel his permit, he would lose these rights.
[7]
On the second issue, the Citizenship Judge asked
why the Applicant had not provided information about his business in Kuwait. She
noted his response that he felt he had provided all necessary information and
that no one had asked him for more detail. Further, he stated that he stopped
working in the business in January 2008, but later testified that he had to
travel to Kuwait because “I can’t stay here to do the
business”. The Citizenship Judge found the Applicant’s responses to be
unclear and that they left her with questions regarding the extent of his
ongoing business interests in Kuwait.
[8]
The Citizenship Judge then addressed the
Applicant’s 27 day shortfall. When asked for an explanation, the Applicant
stated that when he applied for citizenship he was not aware that there was a
shortfall. It was only during the course of the application process, when he
was reminded that he had more absences than originally declared, that he
realized that a shortfall existed. The Citizenship Judge noted the Applicant’s
claim that the reason for his absence was to visit his children and because he
could not stay in Canada to conduct business. She also noted that the latter
reason appeared to contradict his prior statement that he had not worked in his
Kuwaiti business since 2008 and raised questions as to the reason for the
shortfall.
[9]
On the fourth issue, the lack of information
about the Applicant’s social ties in Canada and the mainly passive indicators
of his residence, the Citizenship Judge noted the Applicant’s claim that he did
not know and no one had asked him about his social ties, although he did go to
Tim Horton’s. Further, she found that the Applicant had submitted inadequate
documentation of an active nature to support his physical presence in Canada
during the relevant period.
[10]
The Citizenship Judge concluded, having assessed
the submissions and testimony, that the Applicant had left unanswered questions
regarding the purpose of his travel, the reason for the shortfall and had
submitted inadequate documentation to demonstrate an active physical presence
in Canada during the relevant period. Therefore, it was impossible to
determine how many days the Applicant was actually present in Canada because
there was insufficient evidence of his continued physical presence during the
period that he claimed to have been in Canada. Referring to the residency test
set out in Pourghasemi, Re, [1993] FCJ No 232 [Pourghasemi], the
Citizenship Judge found that the Applicant had not met requirements of s
5(1)(c) of the Citizenship Act.
Relevant Legislation
Citizenship
Act
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Grant of citizenship
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Attribution de la citoyenneté
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5 (1) The Minister shall grant
citizenship to any person who
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5 (1) Le ministre attribue la
citoyenneté à toute personne qui, à la fois :
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(a) makes application for
citizenship;
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a) en fait la demande;
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…
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…
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(c) is a permanent resident within
the meaning of subsection 2(1) of the Immigration and Refugee Protection Act,
and has, within the four years immediately preceding the date of his or her
application, accumulated at least three years of residence in Canada
calculated in the following manner:
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c) est un résident permanent au sens
du paragraphe 2(1) de la Loi sur l’immigration et la protection des réfugiés
et a, dans les quatre ans qui ont précédé la date de sa demande, résidé au
Canada pendant au moins trois ans en tout, la durée de sa résidence étant
calculée de la manière suivante:
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(i) for every day during which the
person was resident in Canada before his lawful admission to Canada for
permanent residence the person shall be deemed to have accumulated one-half
of a day of residence, and
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(i) un demi-jour pour chaque jour de
résidence au Canada avant son admission à titre de résident permanent,
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(ii) for every day during which the
person was resident in Canada after his lawful admission to Canada for
permanent residence the person shall be deemed to have accumulated one day of
residence;
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(ii) un jour pour chaque jour de
résidence au Canada après son admission à titre de résident permanent;
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…
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…
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Issues
[11]
The Applicant submits three issues:
1) Did the Citizenship Judge err in not first determining whether the
Applicant had established a residence in Canada and before applying her choice
of residency test?
2) Did the Citizenship Judge properly apply the Pourghasemi test?
3) Did the Citizenship Judge violate principles of natural justice and
the Applicant’s right to procedural fairness?
Standard
of Review
[12]
It is well established that the reasonableness
standard applies to a citizenship judge’s determination on the residency
requirement under s 5(1)(c) of the Citizenship Act (Canada
(Citizenship and Immigration) v Safi, 2014 FC 947 at paras 15-16; Canada
(Citizenship and Immigration) v Jeizan, 2010 FC 323 at para 12; Farag v
Canada (Citizenship and Immigration), 2013 FC 783 at paras 24-26; Zhou v
Canada (Citizenship and Immigration), 2013 FC 313 at para 10 [Zhou]).
Reasonableness is concerned with the existence of justification, transparency
and intelligibility, and with whether the decision falls within a range of
possible, acceptable outcomes (Dunsmuir v New Brunswick, 2008 SCC
9 at para 47 [Dunsmuir]).
[13]
It is also well established that questions of
procedural fairness are reviewable on the correctness standard (Khosa v
Canada (Citizenship and Immigration), 2009 SCC 12 at para 43; Zhou
at para 12; Fazail v Canada (Minister of Citizenship and Immigration),
2016 FC 111 at para 17 [Fazail]).
Issue 1: Did the Citizenship Judge err in not first
determining whether the Applicant had established a residence in Canada and
before applying her choice of residency test?
Applicant’s Position
[14]
The Applicant submits that the determination of
residency under s 5(1)(c) is a two stage test. The first step requires a
determination of whether the applicant has established a residence in Canada
prior to or at the start of the relevant period (Canada (Citizenship and
Immigration) v Ojo, 2015 FC 757 at para 25). It is only if this threshold
question has been answered affirmatively that the judge should consider whether
the applicant’s residency meets the required number of days under one of the
three residency tests established in Koo, Re, (1992), 59 FTR 27 [Koo],
Papadogiorgakis, Re, [1978] 2 FC 208 [Papadogiorgakis], or Pourghasemi.
The Applicant further submits that once residency has been established, and if
the applicant possesses a shortfall, then the citizenship judge must apply the
test from Koo (Canada (Citizenship and Immigration) v Elzubair,
2010 FC 298; Canada (Citizenship and Immigration) v Takla, 2009 FC
1120). The Applicant submits that the Citizenship Judge failed to consider
this threshold question and that her lack of analysis precludes an implicit
finding in that regard. This constitutes a reviewable error.
Respondent’s Position
[15]
The Respondent submits that the threshold
question of whether residence was established is not applicable to the Pourghasemi
test. The question arose in Papadogiorgakis, the rationale being
that an individual who was established in Canada did not cease to be a resident
despite leaving Canada for temporary purposes. That is, there must first be a
determination of whether the individual established a residence in Canada
before it can be determined that this residence was maintained during absences
from Canada. In any event, regardless of whether the Applicant had established
residence, he still would not have met the Pourghasemi test as he did
not have the required 1095 days of physical presence.
[16]
The Respondent further submits that the
Citizenship Judge had the discretion to select the Pourghasemi test,
rather than Koo (Canada (Citizenship and Immigration) v Pereira,
2014 FC 574 at para 14 [Pereira]) even after the Applicant admitted to
being short of the residency requirement (Salako v Canada (Citizenship and
Immigration), 2013 FC 970 at paras 10-11; Ayaz v Canada (Citizenship and
Immigration), 2014 FC 701 at para 43 [Ayaz]).
Analysis
[17]
In my view, the Applicant is correct that the
jurisprudence has established a two-stage approach to the assessment of an
applicant’s residency under s 5(1)(c) of the Citizenship Act, regardless
of which test is chosen in the second part. While I acknowledge the
Respondent’s point that the threshold question was developed based on the
qualitative tests (Papadogiorgakis and Koo), subsequent
jurisprudence has held that the threshold analysis is relevant even if the
citizenship judge chooses to apply the quantitative test from Pourghasemi.
This is because the first stage, as a threshold, is determinative of the case.
In Hao v Canada (Citizenship and Immigration), 2011 FC 46 Justice
Mosley stated:
[24] The determination of residency by
citizenship judges has involved a two stage process. A threshold determination
is made as to whether residence has been established in Canada. If it has not
been established, the matter ends. If residence has been established, the
second stage requires a determination as to whether the applicant's residency
satisfies the statutorily prescribed number of days. It has remained open to
citizenship judges to choose either of the two jurisprudential schools
represented by Pourghasemi and Papadogiorgakis/Koo in
making that determination so long as they reasonably applied their preferred
interpretation of the statute to the facts of the application before them.
[18]
This suggests that Justice Mosley did not see Pourghasemi
and the threshold residency question as mutually exclusive.
[19]
Further, in Al Tayeb v Canada (Citizenship
and Immigration), 2012 FC 333 Justice Phelan granted judicial review of a
citizenship judge’s decision, which was decided based on Pourghasemi,
because it had not dealt with the threshold issue:
[14] The facts of this case raise the
issue of pre-existing residency. The Judge never considered whether residency
had been established prior to the Relevant Period. Unlike Canada (Minister
of Citizenship & Immigration) v. Guettouche, 2011 FC 574 (F.C.), where
Justice Zinn might have been prepared to infer that the threshold issue had
been decided because the judge considered the Koo (qualitative) test, no
such inference can be drawn by virtue of adopting the Pourghasemi (quantitative)
test.
[20]
Accordingly, I do not agree with the Respondent
that the threshold question is not applicable. And, in this matter, nothing in
the Citizenship Judge’s reasons suggest that she turned her mind to that
question. In fact, the record suggests that the issue of the whether the
Applicant had established residence was one of the concerns that prompted the
CIC Officer to refer the matter to a citizenship judge for determination.
[21]
In that regard, section 2 of the FPAT, “Absences
from Canada”, refers to “Time in Canada before relevant
period”. In this case, the CIC Officer wrote, “Unable
to assess the time (absences have not been declared not listed by the
applicant)”. The following section refers to, “Time
in Canada in relevant period before first significant absence”. There,
the CIC Officer wrote, “0 days (left to Kuwait on
January 13, 2010 and came back on March 17, 2010)”. The CIC Officer
also raised the issue of the Applicant’s permanent residence in Kuwait.
[22]
Although jurisprudence has established that the
threshold finding can be implicit (see Canada (Citizenship and Immigration)
v Guettouche, 2011 FC 574 at paras 14-16 [Guettouche]; Canada
(Citizenship and Immigration) v Khan, 2015 FC 1102 at para 18; Canada
(Citizenship and Immigration) v Lee, 2016 FC 67 at para 22 [Lee]),
in this matter there is an insufficient basis on which to infer that the
Citizenship Judge considered this issue. As in Guettouche, the evidence
raised the question of when, if ever, the Applicant established his residency (Guettouche
at para 15). The FPAT should have brought the threshold issue to the Citizenship Judge’s
attention, yet, as the Applicant notes, nothing in the decision indicates that
she was aware of or addressed the issue.
[23]
And, while some decisions have presumed that a
citizenship judge has answered the threshold question simply based on the fact
that the judge proceeded to consider the second stage of the residency test
(see Boland v Canada (Citizenship and Immigration), 2015 FC 376 [Boland]
at para 22; Lee at para 23), in these circumstances I am not prepared to
make that presumption.
[24]
As to the question of whether a citizenship
judge must apply Koo in the second part of the analysis if the Applicant
falls short of the required 1095 days, when appearing before me the Applicant
conceded that it was open to the Citizenship Judge to select any of the three
available tests.
Issue 2: Did the Judge
properly apply the Pourghasemi test?
Applicant’s Position
[25]
The Applicant submits that the Citizenship Judge
conducted a truncated Koo inquiry into the adequacy of the Applicant’s
evidence and the justifications for his shortfall prior to arriving at her
quantitative conclusion based on Pourghasemi. The Applicant notes that
it is settled law that judges may not apply hybrid tests, they must choose
either a qualitative or quantitative test (Edwards v Canada (Citizenship and
Immigration), 2014 FC 748 at para 27 [Edwards]). Further, the Pourghasemi
test must be unambiguously and consistently applied, a citizenship judge may
not conduct a residence inquiry under a constructive residence test and then
reach a negative decision under a quantitative test (Muhanna v Canada
(Citizenship and Immigration), 2008 FC 1289 [Muhanna]). Despite the
fact that the Applicant did not dispute his shortfall, the Citizenship Judge
repeatedly drew adverse inferences from the lack of an explanation for it. It
is unclear from the reasons what would have been an adequate explanation for a
shortfall that is strictly disallowed under Pourghasemi. The
Citizenship Judge’s reasons speak to factors appropriate to a Koo
analysis, including “passive indicia” of
physical presence and the extent of his social ties in Canada. Where a
citizenship judge examines the adequacy of an applicant’s evidence in the face
of an uncontested shortfall, the Pourghasemi test has not been applied
correctly (Tshimanga v Canada (Citizenship and Immigration), 2005 FC
1579 at para 21 [Tshimanga]).
[26]
The Applicant notes that, since his shortfall
was uncontested, it is unclear why the Citizenship Judge considered it
necessary to find that it was “impossible to
determine…how many days the Applicant was actually present in Canada”
due to insufficient evidence. Where a shortfall is admitted, “sufficiency” of
indicia of presence is not a consideration under Pourghasemi.
Therefore, this finding implies the incorrect application of the Pourghasemi
test or application of a blended test. The Applicant submits that the
situation in Purvis v Canada (Citizenship and Immigration), 2015 FC 368 [Purvis],
cited by the Respondent, applies equally to this case. Although the
Citizenship Judge did not mention Koo by name, as in Purvis, she
invoked Pourghasemi after finding that the Applicant did not satisfy the
Koo test. Further, the Respondent’s critique of Muhanna assumes
that the Citizenship Judge’s approach was intelligible. The Applicant submits
that it is untenable to maintain that the Citizenship Judge clearly applied Pourghasemi
when the decision discusses justifications for absences and sufficiency of
evidence at length. The Applicant submits that while the Citizenship Judge
decided under a Pourghasemi test, she did not conduct a Pourghasemi analysis.
Respondent’s Position
[27]
The Respondent submits that the evidence in the
record is not sufficient to demonstrate that the Citizenship Judge blended the
legal tests (Purvis at paras 29 and 32) and that she did not err in
canvassing the evidence before her and this is not evidence of a blending of
the tests. The Respondent submits that the Citizenship Judge was clear that
the Pourghasemi test was applied. Further, considerations from Koo
were not imported, rather, the application was denied because the Applicant had
not met the physical presence threshold required by the Pourghasemi test.
The cases cited by the Applicant simply state that the tests cannot be
blended, but do not demonstrate that such a blending took place in this case. The
uncertainty and ambiguous statements that persuaded the Court in Muhanna
were not present in this case as there was a clear statement that the Pourghasemi
test was being applied. The Respondent submits that Tshimanga is
distinguishable because that case dealt with the question of whether the
citizenship judge considered the Koo factors. Further, Alouache v
Canada (Minister of Citizenship and Immigration), 2003 FC 858, cited in Tshimanga,
is distinguishable because the citizenship judge had failed to indicate which
test was being used and because of the influence that qualitative evidence had
on the citizenship judge’s decision. In this case, the determination that the Pourghasemi
test was not satisfied was based on the Applicant’s shortfall of days and
not on Koo factors or analysis.
Analysis
[28]
As recently described by Justice LeBlanc in Hussein
v Canada (Citizenship and Immigration), 2015 FC 88 [Hussein] the Pourghasemi
test involves a strict counting of days of physical presence in Canada which
must total 1095 days in the four years preceding the application. It is often
referred to as the quantitative test. The Papadogiorgakis test is less
stringent and recognizes that a person can be resident in Canada, even while
temporarily absent, if there remains a strong attachment to Canada. The Koo
test builds on Papadogiorgakis by defining residence as the place where
one has centralized his or her mode of living. The last two tests are often
referred to as qualitative tests (Huang v Canada (Citizenship and
Immigration), 2013 FC 576 at para 25 [Huang]).
[29]
It is now settled law that citizenship judges
are free to select from either of the three residency tests (Hussein at
para 15; Lam v Canada (Minister of Citizenship and Immigration), (1999)
164 FTR 177 at para 33; Boland at paras 18-19; Huang at paras 21,
24, 41-44; Ayaz at para 43; Purvis at para 26; Fazail at
para 27). Once that selection has been made, the role of this Court is limited
to ensuring that the test has been properly applied. In applying the selected
test, it is an error to blend the qualitative and quantitative tests (Edwards
at para 27; Purvis at para 28).
[30]
In her decision, the Citizenship Judge raised
and addressed each of the concerns that had been identified by the CIC Officer
in the FPAT. I see no error in that approach. This permitted the Applicant an
opportunity to specifically address the concerns that gave rise to the need for
a hearing by the Citizenship Judge (see Stine v Canada (Minister of
Citizenship and Immigration), (1999), 1999 CanLII 8618 (FC); El-Husseini
v Canada (Citizenship and Immigration), 2015 FC 116 at para 21; Abdou v
Canada (Citizenship and Immigration), 2014 FC 500 at para 24). It was in
this context, for example, that the Applicant was asked to and explained why he
maintained permanent residence in both Kuwait and Canada during the relevant
period.
[31]
However, in this case, beyond the exercise of
raising and permitting the Applicant to address the issues raised by the CIC
Officer, the Citizenship Judge’s analysis and reasons are limited. She states
only that:
[33] In assessing the Applicant’s
submissions and testimony, I find that he has left unanswered questions
regarding the purpose of his travel during the relevant period and the reason
for his shortfall in physical presence. He has not provided an adequate
submission of documents to demonstrate his active presence in Canada during the
relevant period. As noted in El Fihri and Saqur above, he has
not met the burden of proving that he meets the conditions set out in the Act,
and in particular the residence requirements.
[34] Given the forgoing, it is
impossible to determine, on a balance of probabilities, how many days the
Applicant was actually present in Canada, because there is insufficient
evidence of his continued physical presence during the period that he claims to
have been in Canada.
[35] Referring to the residency test as
set by Muldoon J. in Pourghasemi, (Re): [1993] F.C.J No. 232, I find
that, on a balance of probabilities, the Applicant has not met the residence
requirements under s 5(1)(c) of the Act.
[32]
The Pourghasemi test required the
Citizenship Judge to determine whether the Applicant has been physically
present in Canada for at least 1095 days during the relevant period based on a
strict counting of days (Boland at para 15; Pereira at para 14).
From her reasons it seems that the Citizenship Judge accepted the number of
days of physical presence and absence as determined by the CIC Officer and
recorded in the FPAT. Stating, in the introduction of her decision, that the
Applicant declared 1068 days of presence and 365 days of absence on his
application but that this was later reassessed by the reviewing agent to be 392
days of absence during the relevant period leaving a shortfall of 27 days.
[33]
She addressed the shortfall as a concern raised
by the CIC Officer. The Applicant did not dispute the shortfall. The
Citizenship Judge, presumably anticipating the possibility that she would apply
a qualitative test, sought reasons for the absence. She was of the view that
part of his explanation, that he could not stay in Canada to conduct his
business, contradicted his prior statement that he had not worked in the
business since 2008. She agreed with the CIC Officer that an adequate
explanation for the shortfall had not been provided. In other words, she
questioned the Applicant’s credibility.
[34]
As noted above, this analysis was conducted in
the context of addressing the concerns raised by the CIC Officer. Had the
Citizenship Judge, in her subsequent and concluding analysis, simply found that
the strict Pourghasemi test applied and could not be met because of the
uncontested 27 day shortfall, her decision would have been reasonable.
However, she found that the Applicant had left unanswered questions as to the
purpose of his travel and the reason for the shortfall in his physical presence
in Canada. If she were applying the strict quantitative test, those issues
would not be relevant to her decision. She also stated that the Applicant had
not provided adequate documentation to demonstrate his “active
presence” in Canada during the relevant period. However, given that the
27 day shortfall was not contested, the purpose of this finding is also unclear
in the context of the quantitative test.
[35]
Further, the Citizenship Judge stated that,
given her outstanding questions and the absence of an adequate explanation from
the Applicant, it was impossible to determine how many days the Applicant was
actually present in Canada. Again, however, given the uncontested shortfall
and the fact that the Citizenship Judge appeared to accept the figures
suggested by the CIC Officer without conducting a counting of the days herself,
the purpose of this finding is unclear.
[36]
In that regard, I note Justice LeBlanc’s recent
comments in Hussein:
[16] First, the Citizenship Judge did
not engage in any counting of days as required with the Pourghasemi test.
When reviewing the decision, it is clear that the Citizenship Judge accepted,
as a starting point, the number of 1099 days of physical presence in Canada.
However, there is no further mention of the number of days that would ensue
from the filing of Ms Hussein’s Residence Questionnaire and the further days of
absence. There is also no mention of the number of days Ms Hussein would have
been in Canada in total while this is at the crux of the test chosen and used
by the Citizenship Judge. As this Court stated in Jeizan v Canada (Minister
of Citizenship and Immigration), 2010 FC 323, 386 FTR 1, at para 18:
At the very least, the reasons for a
Citizenship Judge's decision should indicate which residency test was used and
why that test was or was not met: see Canada (Minister of Citizenship
and Immigration) v Behbahani, 2007 FC 795, at paras 3-4; Eltom v Canada
(Minister of Citizenship and Immigration), 2005 FC 1555, at para 32; Gao
v Canada (Minister of Citizenship and Immigration), 2003 FCT 605, [2003]
F.C.J. No. 790 at para 22; Gao v Canada (Minister of Citizenship and
Immigration), 2008 FC 736, at para. 13. (Emphasis added)
[17] In particular, the Citizenship
Judge did not explain how the so-called inconsistencies in the evidence
submitted by Ms Hussein made it “impossible” for him to proceed with that
calculation.
[37]
In this case, it is entirely unclear, as in Hussein,
why the Citizenship Judge found it “impossible”
to determine how many days the Applicant was present in Canada. This suggests
the Citizenship Judge misunderstood the evidence or misapplied the Pourghasemi
test, either of which is a reviewable error. Although Hussein involved
an applicant who appeared to meet the threshold for physical presence, as
opposed to the Applicant’s apparent shortfall, in my view, the same principle
applies in the present case.
[38]
It is also unhelpful that the Citizenship Judge
did not refer to Pourghasemi until the last sentence of her reasons.
[39]
Given her reasons, it is not clear how the
Citizenship Judge came to her conclusion, even though she did make reference to
the Pourghasemi test. While adequacy of reasons is not a stand-alone
ground of review (Newfoundland and Labrador Nurses' Union v Newfoundland and
Labrador (Treasury Board), 2011 SCC 62 at para 14), as Justice Rennie noted
in Komolafe v Canada (Citizenship and Immigration), 2013 FC 431 at para
11:
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. […] N.L.N.U.
allows reviewing courts to connect the dots on the page where the lines, and
the direction they are headed, may be readily drawn. Here, there were no dots
on the page.
[40]
In the present case, the dots on the page lead
in two directions, to Koo and to Pourghasemi without any way for
the Court to determine which was actually applied. As stated by Justice Scott
in Rousse v Canada (Citizenship and Immigration), 2012 FC 721 at para
31, once a citizenship judge selects a test, they must apply the test
consistently. The applicant must be able to understand the decision and the
reasons and basis for that decision. That is not what happened in this case
and, therefore, the decision was unreasonable.
[41]
Given my conclusion above, it is not necessary to
address the question of whether the Citizenship Judge blended tests. However,
in my view, this is a circumstance similar to Muhanna. There, Justice
Zinn held that the citizenship judge had impermissibly blended the qualitative
and quantitative tests, making it unclear which one he had applied:
[9] In my view, it is not at all
certain which test the Judge employed. While the respondent submits that the
Judge based his determination on the strict physical presence test, any
certainty in this respect is clouded by the Judge’s statement that “too long
an absence from Canada, albeit temporary, during the minimum period of
time set out in the Act, as in the present case, is contrary to the purpose
of the residency requirements of the Act” [my emphasis]. The minimum period
set out in the Act is the 1,095 day period. This statement of the Citizenship
Judge implies that a brief absence, or one that is not “too long”, in that
1,095 day period, may be acceptable. If so, then the strict physical presence
test has not been used. But beyond that observation, it is impossible to
ascertain with any certainty what test he was using. For this reason alone the
appeal must be allowed.
[42]
As in Muhanna, in the present case the
Citizenship Judge’s finding demonstrates that she likely imported qualitative
factors in making her decision. For example, she appears to suggest that, if
the Applicant had provided an adequate reason for the shortfall or concerning
the purpose of his travel, he might have been successful. Yet these are not
relevant considerations in a strict counting of days under the Pourghasemi test.
[43]
And, unlike Boland, in this case the
Citizenship Judge’s decision does not leave “no
ambiguity” as to the rationale for not approving his application and,
while she does not mention Koo, based on her reasons it is not clear
that she did not import factors that would have been relevant had that test
been applied to her decision which she stated to be based on Pourghasemi.
[44]
Reasonableness is concerned with the existence of
justification, transparency and intelligibility, and with whether the decision
falls within a range of possible, acceptable outcomes (Dunsmuir at para
47). In these circumstances, as I am unable to determine with any degree of
certainty why the Citizenship Judge concluded as she did, her decision is not
reasonable.
[45]
Given my conclusions above, it is not necessary
to address the third issue.
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