Docket: T-1772-15
Citation:
2016 FC 639
Ottawa, Ontario, June 8, 2016
PRESENT: The
Honourable Mr. Justice Shore
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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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MOHAMMAD KAMRAN
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Respondent
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JUDGMENT AND REASONS
I.
Background
[1]
This is an application for judicial review of a
decision, dated September 15, 2015, wherein a Citizenship Judge approved
the Respondent’s citizenship application.
[2]
The Respondent, Mohammad Kamran (age 44), is a
citizen of Pakistan. He is married and his wife was co-applicant to his
citizenship application. Together, they have three children, including one born
in Canada. Upon his arrival to Canada on August 9, 2006, the Respondent
became a permanent resident of Canada under the Federal Skilled Workers Program.
[3]
On May 20, 2011, the Respondent applied for
citizenship; thus, the relevant period is from May 20, 2007 to May 20,
2011. During that period, he declared 345 days of absences and 1,115 days of
presence in Canada in his application and in the Residence Questionnaire.
[4]
In a decision dated September 15, 2015, the
Citizenship Judge, in applying the quantitative test of Re Pourghasemi,
[1993] FCJ No 232, 62 FTR 122 [Pourghasemi], held that on a balance of
probabilities, the citizenship applicant “demonstrated
that he resided in Canada for the number of days he claimed to reside in Canada
and has therefore met the residence requirement under s. 5(1)(c) of the Act”
(Decision, at para 21).
[5]
In the File Preparation and Analysis Template
[FPAT], dated August 6, 2015, the Citizenship Officer raised several
concerns:
•
Lack of strong active indicators
demonstrating involvement in Canada and most of the supporting evidence is
passive rather than active;
•
Undeclared USA stamps or re-entry stamps missing
in the passports;
•
Difficulty to establish physical presence in
Canada during the entire relevant period – specifically for two undeclared
absences: i) July 13, 2008 to November 28, 2008; and ii)
December 7, 2009 to November 10, 2010;
•
The Respondent was not in Canada before the
relevant period; and, he was absent for the first 187 days of the relevant
period;
•
There are gaps in the utility bills and the
bank accounts are joint, thus, it is difficult to determine if it is the
Respondent or his wife who made the transactions.
[6]
The Citizenship Judge listed some of the
concerns raised by the Citizenship Officer in the FPAT and was satisfied, upon
hearing the Respondent on September 11, 2015, that the Respondent was
credible and provided sufficient evidence to support and confirm the absences
declared by the Respondent in his application and in the Residence
Questionnaire.
II.
Issues
[7]
The Applicant submits that the following issues
should be considered by the Court:
1.
Did the Citizenship Judge err by failing to
count the number of days the Respondent was physically present in Canada during
the relevant period?
2.
Did the Citizenship Judge unreasonably consider
the absence beginning with December 7, 2009 to November 10, 2010?
III.
Analysis
[8]
The parties to this application agree the
impugned decision must be reviewed under the standard of reasonableness (Labioui
v Canada (Citizenship and Immigration), 2016 FC 391 at para 2 [Labioui];
Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).
[9]
In considering whether the Respondent met the
residence requirement under subsection 5(1) of the Citizenship Act, the
Citizenship Judge relied on the quantitative test of Pourghasemi. The Pourghasemi
test involves the strict counting of days wherein a citizenship applicant is
actually physically present in Canada during the relevant period of time (Canada
(Citizenship and Immigration) v Muttalib, 2015 FC 1152 at para 24).
[10]
The Applicant submits that the Citizenship Judge
erred by failing to calculate the actual number of days that the Respondent was
physically present in Canada. Specifically, the Applicant referred to paragraph
14 of the Decision, wherein the Citizenship Judge stated that he was confident
that the Respondent spent most of his time in Canada during the timespan from
December 7, 2009 to November 10, 2010.
There is also concern for a potential trip
started on Dec. 7, 2009 and potentially ending on Nov. 10, 2010. Again,
according to the new documentation now part of the file, there are consistent
activities in Canada during this time frame. I am confident that the applicant
has spent most of this time in Canada. [Emphasis added.]
(Decision at para 14)
[11]
One has to remember that the burden is on a
citizenship applicant to establish, with clear and compelling evidence, the
number of days of residence in Canada (Atwani v Canada (Citizenship and
Immigration), 2011 FC 1354 at para 12). In the present case, as the
Citizenship Judge relied on the strict physical presence test of Pourghasemi
to reach the conclusion that the Respondent met the residence requirement of
subsection 5(1) of the Citizenship Act; how could the Citizenship
Judge have been satisfied in respect of the physical presence test in the case
of the Respondent when the Respondent had, according to the evidence, a
potential absence that spanned the period from December 7, 2009 to
November 10, 2010? A need exists for the purpose of calculation of the
physical presence test to have the evidence examined anew by the same
Citizenship Judge, if still sitting, to give even brief reasons in respect of
the calculation of the days implicated. In Pourghasemi, Justice Muldoon
was of the opinion that a strict physical presence in Canada for three years
was required in order to ensure that citizenship applicants had “Canadianized” themselves:
So those who would throw in their lot with
Canadians by becoming citizens must first throw in their lot with Canadians by
residing among Canadians, in Canada, during three of the preceding four years,
in order to Canadianize themselves. It is not something one can do while
abroad, for Canadian life and society exist only in Canada and nowhere else.
(Pourghasemi, above at para 6)
[12]
As the Respondent declared having been
physically present in Canada for only 20 days above the threshold of 1,095 days
during the relevant period, it is material that the Citizenship Judge engage in
a calculation of how many days the Respondent was absent from Canada. This
conclusion is in line with the one of Justice Luc Martineau in Labioui,
above at paras 17-18:
[17] Having adopted the Pourghasemi
test to evaluate the applicant’s application, the Citizenship Judge failed to
engage in any counting of days, despite the fact that the number of days during
which the applicant was absent from Canada was determinative of the outcome of
the citizenship application (Hussein v Canada (Citizenship and Immigration),
2015 FC 88 at paras 16-18 [Hussein]). While the Citizenship Judge
mentions a discrepancy in the number of days of absence declared by the
applicant in her citizenship application and her residence questionnaire (paragraphs
5 and 7), and correctly states the 1,095 day requirement (paragraph 15), she
does not engage in a calculation of how many days the applicant would have been
present in Canada, nor in the calculation of whether any discrepancies in the
evidence would have placed the applicant below the 1,095 day threshold.
[18] In light of this omission on the
part of the Citizenship Judge, the only way to understand the reasons as to the
number of days during which the applicant was absent from Canada would be to
conduct a de novo examination of the record (Korolove v Canada
(Citizenship and Immigration), 2013 FC 370 at para 47 [Korolove]; Hussein
at para 18). As a result, the decision does not meet the requirements for
transparency, justification and intelligibility set out in Dunsmuir (Hussein
at para 18). Indeed, a reviewing court cannot fill in the gaps to the extent
that it is essentially rewriting a decision to provide reasons that were not
there (Canada (Citizenship and Immigration) v Matar, 2015 FC 669 at para
29), nor is it the Court’s role to demonstrate by its own calculations the
reasonableness of the Citizenship Judge’s decision (Korolove at para
40).
[13]
As a de novo examination of the record is
warranted, the Court will not give its assessment of the evidence of the two
large volumes of evidence except to say that the evidence does not, in
conclusion, demonstrate, even with the Respondent’s affidavit, a reasonable
explanation for a physical presence of the eleven months and three day period
in question. The Court specifies that despite the abundant evidence, it is
wholly unclear as to the period under scrutiny in respect of the presence in
Canada of the Respondent, himself, personally, not that of his family members
with which there is no controversy on the matter of presence. The Court cannot discern
despite the voluminous evidence whether the Respondent was actually in Canada
during the eleven months and three days in question.
IV.
Conclusion
[14]
Consequently, the application for judicial
review is granted and the matter is referred to the same Citizenship Judge, if
still sitting, to examine the entire evidence (not only evidence which is
pointed out uniquely by a Citizenship Officer as was mentioned in the file).
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