Date: 20160418
Docket: T-1019-15
Citation:
2016 FC 424
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, April 18, 2016
PRESENT: The Honourable Madam Justice Gagné
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BETWEEN:
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NAZIH ABDALLAH
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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]
WHEREAS Nazih Abdallah
is appealing a citizenship judge's decision to deny his application for
citizenship (for the second time) because he does not meet the residence
criteria set out in paragraph 5(1)(c) of the Citizenship Act, R.S.C., 1985, chapter C‑29
(the Act);
[2]
WHEREAS the
applicant contends that: i) the citizenship judge breached her duty of
procedural fairness by finding the new evidence that the applicant tried to
provide inadmissible, and that ii) the citizenship judge erred in
rejecting the citizenship application on the ground that the applicant did not
meet the residence criteria set out in paragraph 5(1)(c) of the
Act;
[3]
WHEREAS the
response to the first issue raised by the application is conclusive and, as a result,
this Court does not need to rule on the second issue;
[4]
WHEREAS the
standard of correctness applies to all issues that raise questions of
procedural fairness (Canada (Citizenship and Immigration) v. Khosa),
2009 SCC 12, at paragraph 43; Fan v. Canada (Citizenship
and Immigration), 2013 FC 789, at paragraph 23);
[5]
AFTER having
reviewed the parties' memorandums and the certified tribunal record, and after
having heard both parties, this Court is of the opinion that the application
for judicial review should be allowed for the following reasons:
[6]
On the whole, the citizenship judge concludes
that the applicant did not present sufficient evidence of his presence in
Canada, particularly during the first few months of the reference period for
the purposes of applying the residency test, beginning on April 5, 2006,
and ending on April 5, 2010. She concludes that for the first two months
that the applicant alleges he was present in Canada, he provided no active
evidence that he was residing with a friend in Bedford, Nova Scotia. The
only document provided is a health insurance card issued by the province, which
is not an indicator of his physical presence in Canada.
[7]
She also concludes that the applicant's son
resided with him in Canada for only the first few months of his residency, and
then went to live with his paternal grandmother in Turkey and Lebanon. The
citizenship judge therefore concludes that it is reasonable to infer that the
applicant travelled abroad to visit his son on several occasions.
[8]
In support of his application for judicial
review, the applicant submits an affidavit in which he attests to having tried
to submit new evidence to the citizenship judge, which she found inadmissible.
The applicant argues that this new evidence was significant and provided proof
of his physical presence in Canada during the first two years of the reference
period. It essentially consists of an identification card issued by the
Province of Nova Scotia, his son's academic transcripts for the 2006/2007 and
2007/2008 school years, and invoices for the cost of his son's lunches for the
same period (showing the addresses declared by the applicant).
[9]
I share the respondent's opinion that even if
the citizenship judge had taken the identification card into consideration, her
conclusion would likely have been the same: it is no more active evidence of
his presence than his health insurance card. However, the same cannot be said
for his son's academic transcripts, which are a clear indication of his
physical presence in Canada and, if they had been taken into account, could
have influenced the citizenship judge's finding of fact.
[10]
The respondent provides no evidence in this
regard and does not deny that the applicant tried to provide this evidence
before the citizenship judge. At most, he alleges that there is nothing in the
judge's notes, which span only one page, or in her reasons, that indicates that
she found the evidence inadmissible.
[11]
Under the circumstances and given that I do not
have a transcript of the hearing, I have to trust in the applicant's affidavit.
I accept this new evidence and conclude that it factors among the list of
exceptions to which Mr. Justice Stratas refers in Association of
Universities and Colleges of Canada v. Canadian Copyright Licensing Agency
(Access Copyright), 2012 FCA 22, at paragraph 20:
(b) Sometimes affidavits are necessary to
bring to the attention of the judicial review court procedural defects that
cannot be found in the evidentiary record of the administrative decision‑maker,
so that the judicial review court can fulfil its role of reviewing for
procedural unfairness [reference omitted] . . .
[12]
I therefore conclude that the citizenship judge
breached her duty of procedural fairness by refusing to consider the
applicant's son's academic transcripts and meal invoices and, for that reason
alone, the citizenship judge's decision must be overturned and the case
returned to the respondent for reconsideration.
JUDGMENT
THIS
COURT RULES that:
1.
The applicant's
appeal is allowed;
2.
The decision rendered
by Citizenship Judge Lillian Klein on April 27, 2015, is overturned;
3.
The case is returned
to the respondent for reconsideration.
“Jocelyne Gagné”
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