Docket: T-1891-15
Citation:
2016 FC 689
Ottawa, Ontario, June 20, 2016
PRESENT: The
Honourable Mr. Justice Gascon
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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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VALMIKI DEORAJ
SAMAROO
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
The respondent, Mr. Valmiki Deoraj Samaroo, is a
citizen of Trinidad and Tobago [Trinidad]. He became a Canadian permanent
resident upon his arrival in Canada in December 2005. His wife is also a
permanent resident and they have three adult children who are citizens of
Canada. Mr. and Ms. Samaroo own and operate two companies: Trident Protective
Services Inc. [Trident], which offers security supplies in Canada, as well as
Intercept Security Ltd., a guard service based in Trinidad. Mr. Samaroo applied
for Canadian citizenship on February 1, 2012.
[2]
Mr. Samaroo did not declare a shortfall of days
of physical presence in Canada in his application. However, after reviewing Mr.
Samaroo’s file, his residence questionnaire and other documents, the citizenship
officer identified some concerns with Mr. Samaroo’s credibility. The matter was
thus referred to a citizenship judge [the Judge] who held a hearing with Mr. Samaroo
on October 6, 2015, where he questioned him and discussed issues regarding his
physical presence in Canada. The Judge was satisfied that Mr. Samaroo had
maintained and centralized his residence in Canada, and he therefore approved
Mr. Samaroo’s application for citizenship on October 15, 2015.
[3]
The Minister of Citizenship and Immigration [the
Minister] has applied for a judicial review of this decision. The Minister
contends that the Judge erroneously granted citizenship despite a dearth of
evidence on Mr. Samaroo’s establishment in Canada, and that his decision is
unreasonable and ignored significant gaps and discrepancies in the evidence. In
response, Mr. Samaroo submits that the Judge’s decision is reasonable and falls
within the range of possible, acceptable outcome in light of the evidence on
the record.
[4]
The issues raised in this application are as
follows: 1) did the Judge err in applying the selected residency test; 2) was
the Judge’s decision granting citizenship to Mr. Samaroo reasonable.
[5]
For the reasons that follow, the Minister’s
application for judicial review is dismissed. I am not convinced that the Judge’s
decision falls outside the range of acceptable and possible outcomes, or that
the limited amount of evidence supporting the decision is sufficient to justify
this Court’s intervention. I also find that the reasons for the decision
adequately explain how the Judge found that Mr. Samaroo had met the qualitative
residency requirements under paragraph 5(1)(c) of the Citizenship Act,
SRC 1985, c C-29 [the Act].
II.
Background
A.
The Judge’s decision
[6]
In his decision, the Judge identified the relevant
four-year period for the purposes of Mr. Samaroo’s residency requirements
as being from February 1, 2008 to February 1, 2012. Pursuant to paragraph
5(1)(c) of the Act (as it read at the time Mr. Samaroo submitted his
citizenship application), the Minister shall grant citizenship to any person
who, within the relevant four-year or 1,460-day period of reference, has
accumulated at least three years (or 1,095 days) of residence in Canada. On his
citizenship application, Mr. Samaroo declared 1,109 days of physical presence
and 352 days of absence from Canada.
[7]
In his decision, the Judge expressly adopted the
analytical approach used in Re Papadogiorgakis, [1978] 2 FC 208 [Papadogiorgakis].
Pursuant to that “qualitative” test, the Judge was
required to assess Mr. Samaroo’s attachment to Canada in order to determine if
his mode of living is centralized in Canada and reflects an intention to
establish a permanent home in the country.
[8]
After summarizing the procedural steps leading
to his decision and referring to concerns about Mr. Samaroo’s credibility, the
Judge listed the facts as he understood them as well as the explanations
provided by Mr. Samaroo to address the concerns presented to him. More
specifically, the Judge mentioned the following:
• After a new calculation of Mr. Samaroo’s days
of absence, which considered non-declared stamps in his passport, Mr. Samaroo
was found to have 1,066 days of physical presence and 394 days of absence from
Canada. This was 29 days short of the 1,095-day statutory requirement;
• There were other re-entry dates in the
Integrated Customs Enforcement Services [ICES] report which were declared
neither in Mr. Samaroo’s application nor in his residence questionnaire.
However, the Judge stated that he checked the non-declared dates identified in
the ICES report and noted that all but one were already included in the
non-reported stamps in Mr. Samaroo’s passport. The Judge concluded, “after examining dates closer to the one that was not declared, and
the travelling pattern of the applicant,” that he was
convinced that the potential new absences from Canada during the relevant
period will not change the residency requirements established by the Act;
• The address of Mr. Samaroo’s Trident business
in Canada is the same as of his residence, while his business in Trinidad has a
different address than Mr. Samaroo’s Trinidadian residence. At the hearing, Mr.
Samaroo explained that the activity of his Canadian company, contrary to the
one in Trinidad, doesn’t require a big office and can be operated from home;
• There was almost no activity in Mr. Samaroo’s
business account in Canada, as he indicated that he was mainly using his
Trinidadian company credit card for his business activities in Canada;
• With respect to the business activities of
Trident, Mr. Samaroo provided a January 2012 purchase order from Foreign
Affairs Canada for security goods, as well as Trinidadian credit card
statements showing purchases for his Canadian business;
• Mr. Samaroo admitted during the hearing that
he had a Canadian Imperial Bank of Commerce [CIBC] checking account that was
used mainly by his daughter;
• Mr. Samaroo and his wife had “regular” visits to their Canadian family
doctor over the period of reference;
• The Judge noted that Mr. Samaroo and his wife
travelled to Trinidad every two months for business purposes;
• Additional documents such as Canadian school
records for Mr. Samaroo’s children during the period of reference and
additional details on Mr. Samaroo’s work activities in both Canada and Trinidad
were presented after the hearing, at the Judge’s request;
• As part of his arrangements for his
settlement in Canada, Mr. Samaroo indicated that he purchased a house in
Belleville, Ontario between December 2005 and July 2006 and that the Samaroo
family moved to Canada in August 2006. The Samaroo family also moved from
Belleville to Vaughan, Ontario in August 2010. Mr.
Samaroo provided proof of home ownership in Canada;
• Mr. Samaroo provided a letter from Ms. Karen McDonald,
a former High Commissioner for Canada in Trinidad, avowing that Mr. Samaroo was
living in Canada from 2008 to 2012 and was returning to Trinidad from time to
time for business reasons.
[9]
The Judge found, on a balance of probabilities,
that Mr. Samaroo met the residence requirements to obtain Canadian citizenship,
as outlined in Papadogiorgakis, since he had “maintained
and centralized his residence in Canada.” The Judge specifically
referred to paragraph 16 of Papadogiorgakis in his decision.
B.
The standard of review
[10]
The question of whether or not an applicant has
met the residency requirements of the Act is a question of mixed fact and law. It
is well established that the standard of review applicable to such decisions
made by a citizenship judge is reasonableness (Canada (Citizenship and Immigration)
v Baccouche, 2016 FC 97 at para 8; Canada (Citizenship and Immigration)
v Bayani, 2015 FC 670 [Bayani] at para 17; Huang v Canada
(Citizenship and Immigration), 2013 FC 576 [Huang] at para 26).
[11]
In her submissions, counsel for the Minister had
referred to the Court decision in Canada (Minister of Citizenship and
Immigration) v Farag, 2009 FC 299 at para 19 to claim that the
standard of correctness governed whether the Judge misapplied the Papadogiorgakis
test for residency. At the hearing, counsel for the Minister however
acknowledged that this decision dates back to 2009 and is no longer good law in
light of the subsequent teachings of the Supreme Court in Alberta
(Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011
SCC 61 [Alberta Teachers] and its progeny, including most recently in Commission
scolaire de Laval v Syndicat de l’enseignement de la région de Laval, 2016
SCC 8 at para 32. In those and other cases, the Supreme Court has
systematically held that, when an administrative tribunal interprets or applies
its home statute, there is a presumption that the standard of review applicable
to its decision is reasonableness (Alberta Teachers at paras 39 and 41; Tervita
Corp v Canada (Commissioner of Competition), 2015 SCC 3 at para 35).
[12]
Indeed, this Court applied that very principle
to residency cases in Canada (Citizenship and Immigration) v Patmore, 2015
FC 699 [Patmore], where Mr. Justice de Montigny explicitly wrote that
questions regarding the interpretation of one of the citizenship tests are
matters that “go to the interpretation of the ‘home
statute’ of citizenship judges and the Supreme Court has made it clear in a
number of recent decisions that such matters are reviewable on a standard of
reasonableness” (Patmore at para 14).
[13]
In conducting a reasonableness review of factual
findings, it is not the role of the Court to reweigh the evidence or the
relative importance given by the immigration officer to any relevant factor (Kanthasamy
v Canada (Minister of Citizenship and Immigration), 2014 FCA 113 at para
99). Under a reasonableness standard, as long as the process and the outcome
fit comfortably with the principles of justification, transparency, and
intelligibility, and that the decision is supported by acceptable evidence that
can be justified in fact and in law, a reviewing court should not substitute
its own view of a preferable outcome (Canada (Minister of Citizenship and
Immigration) v Safi, 2014 FC 947 [Safi] at para 16). In other words, the standard of reasonableness not only commands that
the decision at issue falls within a range of possible, acceptable outcomes
defensible in respect of the facts and law, but it also requires the existence
of justification, transparency and intelligibility within the decision-making
process (Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] at para
47).
[14]
It is also trite law that the person applying
for citizenship bears the onus of proving that the conditions set out in the
Act with regard to residence have been met (El Falah v Canada (Citizenship
and Immigration), 2009 FC 736 [El Falah] at para 21). A citizenship
judge cannot solely rely on the applicant’s claims in that regard, especially
in the face of contradictory evidence (El Falah at para 21). Clear and
compelling evidence is required to support an application (Atwani v Canada
(Citizenship and Immigration), 2011 FC 1354 at para 12). This is so because
Canadian citizenship is a privilege that should not be granted lightly (Canada
(Citizenship and Immigration) v Pereira, 2014 FC 574 [Pereira]
at para 21). This requirement applies irrespective of which residency test is
applied by the citizenship judge, whether it is quantitative or qualitative (Abbas
v Canada (Citizenship and Immigration), 2011 FC 145 at para 8).
[15]
It is also settled law that the courts owe
significant deference to credibility findings made by boards and tribunals (Aguebor
v Canada (Minister of Employment and Immigration), [1993] FCJ No 732 (FCA)
at para 4; Canada (Minister of Citizenship and Immigration) v Vijayan,
2015 FC 289 at para 64; Pepaj v Canada (Minister of Citizenship and
Immigration), 2014 FC 938 at para 13). In particular, the credibility
findings of citizenship judges deserve such deference because they are better
situated to “make the factual determination as to
whether the threshold question of the existence of ‘a residence’ has been
established” (Martinez-Caro v Canada (Minister of Citizenship and
Immigration), 2011 FC 640 at para 46).
III.
Analysis
A.
Did the Judge err in applying the Papadogiorgakis
test?
[16]
The Minister claims that the Judge erred in
applying the Papadogiorgakis test as he did not conduct the two-step analysis
required by the test. The Minister submits that the test first required the
Judge to decide whether Mr. Samaroo had established residence in Canada. This
is a threshold question and must be satisfied before moving on to consider the
second step, namely the analysis of the quality of Mr. Samaroo’s attachment to
Canada. The Minister contends that the Judge failed to address whether Mr. Samaroo
had established residency in Canada prior to his first extensive absence from
Canada, and whether Canada is the country in which he has centralized his mode
of existence.
[17]
More specifically, the Minister argues that no
evidence demonstrates that Mr. Samaroo established residency in Canada prior to
applying for citizenship. The documents provided state that a property was
purchased by Mr. Samaroo and his wife in August 2010. Further, Mr. Samaroo
landed in Canada in December 2005 and left for Trinidad in early January 2006,
before he was able to apply and receive a permanent resident card. Mr. Samaroo
re-entered Canada at the end of January 2006 and remained in Canada until mid-June
2006. There is no evidence to suggest that he re-entered Canada until the end
of January 2007, almost a year after his first visit to Canada.
[18]
I disagree with the Minister’s assessment of the
Judge’s analysis on the issue of establishment and his application of the Papadogiorgakis
test.
[19]
The Act does not define the term “residence.” For quite some time, there has therefore
been an ongoing debate within this Court as to what the term and paragraph
5(1)(c) of the Act exactly mean. Competing jurisprudential schools have emerged
from that debate with the result that three different tests are available to
citizenship judges in assessing the residency requirement in any given case (Patmore
at para 13; Huang at paras 17-18; Sinanan v Canada (Minister of
Citizenship and Immigration), 2011 FC 1347 at paras 6-8).
[20]
The first test involves a strict counting of
days of physical presence in Canada, which must total at least 1,095 days in
the four years preceding the application. This test is often referred to as the
quantitative test or the Pourghasemi test, as developed in Pourghasemi
(Re) (1993), 62 FTR 122 (FCTD) [Pourghasemi]. The second test
assesses the quality of the applicant’s attachment to Canada and recognizes
that a person can be resident in Canada, even while temporarily absent, if that
person’s mode of living is centralized in Canada and reflects an intention to
establish a permanent home in the country. This less stringent test is the Papadogiorgakis
test, applied by the Judge in this case. Finally, the third test builds on
the second one by defining residence as the place where one has centralized his
or her mode of living. It is described in the jurisprudence as the Koo test
(Re Koo, [1993] 1 FC 286). The last two tests are often referred to as the
qualitative tests (Huang at para 17).
[21]
The dominant view in this Court’s jurisprudence is
that citizenship judges are entitled to choose which test they desire to use
among these three tests and that they cannot be faulted for choosing one over
the other (Canada (Citizenship and Immigration) v Lin, 2016 FC 58 at
para 12; Bayani at para 24; Pourzand v Canada (Minister of
Citizenship and Immigration), 2008 FC 395 at para 16; Xu v Canada
(Minister of Citizenship and Immigration), 2005 FC 700 at para 16).
The Court should therefore not intervene unless the chosen test was applied in
an unreasonable manner (Canada (Minister of Citizenship and Immigration) v
Demurova, 2015 FC 872 at para 21). While they can choose between the
three tests, citizenship judges must however at least indicate which residency
test was used and why the test was met or not. Failure to do so is a reviewable
error (Bayani at para 30; Canada (Citizenship and Immigration) v
Jeizan, 2010 FC 323 [Jeizan] at para 18). A citizenship
judge’s decision will be sufficiently motivated when the reasons are clear,
accurate and intelligible, and when it reflects an understanding of the points
raised by the evidence and indicates why the decision was rendered (Lake v
Canada (Minister of Justice), 2008 SCC 23 at para 46; VIA Rail Canada
Inc v Canada (National Transportation Agency), [2001] 2 FC 25 (FCA) at para
22; Jeizan at para 17).
[22]
In this case, the Judge clearly chose the qualitative
test set out in Papadogiorgakis. He cannot be faulted for that.
[23]
I agree with the Minister that the analysis under
the Papadogiorgakis test is divided into two parts, namely whether an
applicant has established residency in Canada and whether an applicant has
maintained that residency, and that the establishment of residency is a
preliminary or threshold step (Patmore at para 16; Eltom v Canada
(Minister of Citizenship and Immigration), 2005 FC 1555 at para 21).
The analysis of Mr. Justice O’Reilly in Canada (Minister of Citizenship
& Immigration) v Nandre, 2003 FCT 650 at paras 23 and 24, is helpful in
explaining the interrelation of those two steps. It is worth reproducing it in
its entirety:
[23] [T]he periods during which [the
applicant for Canadian citizenship] was absent should be counted towards the
fulfilment of his residence requirement, commencing at the point in time
when he could be said to have established his residence in Canada.
Unfortunately, however, the Citizenship Judge did not determine when that was.
[24] As mentioned, the Citizenship Act
requires that an applicant for citizenship show a period of residence in Canada
amounting to a total of at least three years over the course of the previous
four. In order for applicants to satisfy the residence requirement, they must
first show that they have established a residence in Canada and then
demonstrate that they maintained residency for the required duration. Numerous
cases of this Court make this clear: see, for example, Chan v. Canada
(Minister of Citizenship & Immigration), 2002 FCT 270, [2002] F.C.J.
No. 376 (Fed. T.D.); Canada (Minister of Citizenship & Immigration) v.
Xu, 2002 FCT 1111, [2002] F.C.J. No. 1493 (Fed. T.D.).
(Emphasis added)
[24]
Therefore, the Judge first had to find whether
Mr. Samaroo had established residence in Canada. Afterwards, the Judge was to
verify whether residency had been maintained. Absences from Canada are to be
tallied in the relevant period (in this case from February 1, 2008 to February
1, 2012). It would be difficult to claim to have established a residence if one
is present in Canada for an extremely short period of time. In Canada
(Secretary of State) v Yu, [1995] FCJ No 919 [Yu], Ms. Yu only
remained in Canada for 17 days before leaving to continue her studies in the
United States. Mr. Justice Rothstein was not satisfied that there was an
initial residency established. He “[found] it difficult
to accept that one could be said to maintain or centralize an ordinary mode of
living with its accessories and social relations, interests and conveniences in
a period of only 17 days with only a room at the residence of an uncle”
(Yu at para 6).
[25]
In the current case, I acknowledge that the
Judge did not expressly break down his analysis into steps, which would have
perhaps made the test easier to follow. However, I find it possible and
reasonable to infer from reading the record, in conjunction with the reasons,
that the Judge had concluded that Mr. Samaroo had indeed established his
residency in Canada before the relevant period. In his reasons, the Judge
refers to, notably, the fact that “the applicant has
provided proof of ownership of his residence in Canada.” The Judge also
noted that Mr. Samaroo “has a business in Trinidad and
one in Canada.” In addition, the record shows that Mr. Samaroo’s
Belleville home was purchased in 2006 while Trident, his Canadian company, was
started in 2007. Also worth noting is the letter of the former High
Commissioner for Canada to Trinidad stating that “by
the time I arrived in December 2008, the Samaroo family was already living in
Canada.”
[26]
True, the evidence provided by Mr. Samaroo may
not be the strongest regarding the establishment of the Samaroo family in
Canada before the relevant period, and the Judge’s reasons could have been more
explicit and articulate. But I am not persuaded that the Judge’s decision in
this respect is unreasonable or lacks intelligibility. The current situation can
be distinguished from the recent case of Canada (Minister of Citizenship and
Immigration) v Gentile, 2015 FC 1029 [Gentile] in which the Papadogiorgakis
test was also applied and where Madam Justice Kane granted the application for
judicial review to reconsider the citizenship judge’s decision. In Gentile,
the citizenship judge had mistakenly found that some tax assessments were
consistent with full-time employment although Mr. Gentile was only employed for
two years of the relevant four-year period. The citizenship judge had also
erroneously stated that the absences in the residence questionnaire could be
verified against Mr. Gentile’s passport and ICES report, which was not the case
here (Gentile at paras 46 and 47). Furthermore, in Gentile, the
citizenship judge did not appear to understand the test and to have mixed
qualitative and quantitative assessments of the evidence (Gentile at
para 49). In the current case, there is nothing suggesting that the Judge did
not understand the test, and the Judge in fact clearly articulated that he was
applying the Papadogiorgakis test (Pereira at para 16).
[27]
The Minister also relies on Naveen v Canada
(Citizenship and Immigration), 2013 FC 972 [Naveen] in support of
his position. In Naveen, Ms. Naveen became a permanent resident of
Canada in September 2007, but spent only four days in Canada before returning
to college in California. She returned during some (but not all) school breaks
and vacations, but never worked or studied in Canada. Mr. Justice Annis
commented that it is “common ground in this Court that
the initial establishment of a residence is a prerequisite for a citizenship
application” (Naveen at para 15) and concluded that the initial
requirement had not been met. Mr. Samaroo’s situation is however quite different,
as there is evidence that he spent close to half of his time in Canada in the
period between his initial landing and the start of the relevant period of
reference.
[28]
In her submissions, counsel for the Minister
also states that the residence must be established before the “first extensive absence.” In support of this
affirmation, the Minister refers to Canada (Citizenship and Immigration) v
Camorlinga-Posch, 2009 FC 613 at para 18, where the Court stated that “extended absences from Canada will not be fatal to a citizenship
request if the applicant can demonstrate that [they] had established his or her
residence in Canada before leaving and if Canada is the country in which he or
she has centralized his or her mode of existence.” The Minister also
relies on Canada (Minister of Citizenship and Immigration) v Italia,
[1999] FCJ No 876 at para 14. However, none of these two cases stands for the
proposition that the residence needs to be established before the first
extensive absence. It simply has to be established before leaving the country.
[29]
The Minister’s arguments on the factual findings
made by the Judge with respect to Mr. Samaroo’s establishment in Canada invite
the Court to substitute its view of the evidence for that of the citizenship
judge. The Judge heard from Mr. Samaroo directly at the hearing and reviewed
the evidence before reaching the conclusion that Mr. Samaroo had provided
sufficient evidence that he had maintained and centralized his residence in
Canada. Furthermore, there is also no basis for an inference that the
citizenship judge ignored material evidence that squarely contradicted his
conclusions (Cepeda-Gutierrez v Canada (Minister of Citizenship and
Immigration) (1998), 157 FTR 35 (FTD) at para 17).
[30]
A decision-maker like a citizenship judge is
deemed to have considered all the evidence on the record (Hassan v Canada
(Minister of Citizenship and Immigration), [1992] FCJ No 946 (FCA) at para
3; Kanagendren v Canada (Minister of Citizenship and Immigration), 2015
FCA 86 at para 36). A failure to mention an element of evidence does not mean
that it was ignored or that there was a reviewable error. In this case, the Judge
had the benefit of a hearing with Mr. Samaroo, for which there is no
transcript to contradict the evidence on the record. In view of these elements,
and in light of the whole record, I am not persuaded that the Judge failed to
consider the establishment of Mr. Samaroo in Canada.
[31]
I pause to note that, contrary to many other
cases, this is not a situation where the shortfall in Mr. Samaroo’s days of
presence amounted to several hundreds of days or where Mr. Samaroo only
spent a handful of days in Canada before leaving. Here, Mr. Samaroo’s shortfall
was only 29 days, and he had spent extensive time in Canada before applying for
citizenship.
[32]
The Minister is right to point out that there
remains at all times a positive obligation on the citizenship applicants to
provide true, correct, and complete information and to refrain from making
false declarations. However, it is well recognized that the Act does not
require corroboration on all counts; instead, it is “the
responsibility of the original decision-maker, taking the context into
consideration, to determine the extent and nature of the evidence required”
(Canada (Citizenship and Immigration) v El Bousserghini, 2012
FC 88 at para 19). The Judge may not have expressed his analysis of the
residency test as clearly as the Minister would have liked to see it in his
reasons, or explained in as much detail as the Minister would have hoped how
Mr. Samaroo convinced the judge about the maintenance and centralization of his
residence and mode of living in Canada. However, I am satisfied that there is
enough evidence to indicate that the Judge’s finding on the establishment of
Mr. Samaroo in Canada was not unreasonable.
[33]
The Judge’s decision indeed reflects that he
turned his mind to the issues regarding Mr. Samaroo’s credibility and residence,
and addressed them. This is not a situation where, as in Pereira, the
exercise of discretion by the citizenship judge went too far and the judge
accepted unconceivable explanations on unreported absences with no further
inquiries (Pereira at paras 23 and 30). In the present case, the
citizenship judge reviewed the citizenship officer’s concerns with Mr. Samaroo at
the hearing and concluded that he had met his onus to establish residence
through sufficient and credible evidence. The factual errors identified by the
Minister are not significant enough to make the decision unreasonable and to
warrant this Court’s intervention.
[34]
To echo what this Court stated in Guerrero Moreno
v Canada (Minister of Citizenship and Immigration), 2011 FC 841 at para 15,
immaterial errors, even if there are several, are not sufficient to render a
decision unreasonable. An imperfect decision with immaterial errors remains
reasonable.
[35]
The Court understands the Minister’s desire to
receive more detailed or more complete reasons from a citizenship judge, as the
process established by the Act requires a citizenship officer to refer a matter
to a citizenship judge when the officer has concerns and is not satisfied that
residency requirements are met. But the test this Court has to apply is not
whether the decision satisfies the expectations of the Minister; the test is
the reasonableness of the decision. In the present case, I am not persuaded
that the conclusions of the Judge on the establishment of Mr. Samaroo in Canada
fall outside the range of reasonableness. I instead find the ultimate result
reasonable considering the totality of the evidence and the applicable legal
principles. This Court should not interfere with it on judicial review.
B.
Was the Judge’s decision granting citizenship to
Mr. Samaroo reasonable?
[36]
The Minister further submits that the Judge
misapprehended the evidence before him. Mr. Samaroo had stated in his
affidavit that he testified before the Judge that he and his wife travelled
from Canada to Trinidad “for a period of approximately
ten days every three months for business purposes,” but the Judge
stated in his decision that “[Mr. Samaroo] admits that
every two months he and his wife travel to Trinidad for business
purposes.” Furthermore, the Minister argues that the banking records,
the fact that his business in Canada was operated from Mr. Samaroo’s home
address, as well as the fact that Mr. Samaroo maintained a residence both in
Trinidad and Canada do not support the conclusion that Mr. Samaroo had
centralized his mode of living in Canada.
[37]
In addition, the Minister contends that the
Judge did not do “the bare minimum required of him”
in terms of the sufficiency of reasons. Apart from simply concluding that Mr.
Samaroo “has maintained and centralized his residence
in Canada,” the Judge provides no reasons for what he considered in
coming to his conclusions. The gaps in the evidence in the present case,
combined with the lack of clarity in the evidence, were not thoroughly probed
and resolved by the Judge. The Minister claims that no mention was made of
issues arising from the passport provided by Mr. Samaroo, including the number
of passport stamps, and other concerns raised by the citizenship officer in the
File Preparation Analysis Template [FPAT] report.
[38]
According to the Minister, the Judge did not
explain how the evidence provided by Mr. Samaroo led him to the conclusion
that Mr. Samaroo had centralized his residence in Canada. Citizenship judges
are required to provide reasons for their decisions regardless of the test they
choose to apply; and mere recitations of the facts do not constitute reasons. The
Minister submits that, at the very least, reasons “should
indicate which residency test was used and why the test was or was not met”
(Jeizan at para 18).
[39]
I am not convinced by the Minister’s arguments.
On the contrary, I am satisfied that the Judge’s findings were reasonable and
that the gaps identified by the Minister do not render the decision
unreasonable. I am not persuaded that the Judge failed to address the concerns
raised by the citizenship officer. While the Judge could perhaps have provided
more fulsome reasons to support his analysis, there is no fatal flaw to his
reasoning and I find that he considered the totality of the evidence. Had I
been in the place of the Judge, I might have assessed the evidence differently
or presented the analysis otherwise. But, on judicial review, the Court must
decide whether the Judge could reasonably come to his conclusion on the basis
of the record before him; I do not find that, in the circumstances of this
case, the Judge’s decision falls outside the realm of acceptable, possible
outcomes.
[40]
The thrust of the Minister’s argument, namely
that the evidence demonstrates that Mr. Samaroo did not establish a mode
of living centralized in Canada, essentially boils down to asking the Court to
re-weigh and reassess the evidence before the Judge. It is trite law such is
not the purview of a judicial review.
[41]
The Minister attaches weight to the fact that
Mr. Samaroo’s Canadian business was run out of his home while his business in
Trinidad was carried on from a warehouse facility, suggesting that this
evidence weighs against the Judge’s finding that Mr. Samaroo had centralized
his mode of living in Canada. However, Mr. Samaroo testified it was easy to run
the business out of his house, that it had taken a few years to establish his
Canadian company and that the Canadian government was one of his customers.
Although the CIBC banking records do not show activity in Canada for the
Canadian business, Mr. Samaroo submitted Trinidadian credit card statements
showing business transactions by Mr. Samaroo in Canada.
[42]
The Judge also noted that Mr. Samaroo had
admitted having a joint bank account (the CIBC bank account) with his daughter,
which was used “mainly” but not exclusively by
her. Additionally, there was other evidence establishing Mr. Samaroo’s mode of
living in Canada during the period of reference: proof of home ownership in
Canada, the school records of his children establishing that they attended high
school in Belleville, the letter from a Canadian government official, the
former High Commissioner for Canada in Trinidad, vouching that Mr. Samaroo was
living in Canada from 2008 to 2012, a purchase order from Foreign Affairs
Canada to Trident dated from January 2012, and several appointments with Canadian
physicians.
[43]
The Minister argues that the Judge (and the
Court) should discard the evidence on the school records of Mr. Samaroo’s
children, as they do not reflect the presence in Canada of Mr. Samaroo himself,
as well as the evidence on the Canadian business of Mr. Samaroo given the
absence of reported income until 2012. I do not agree. Mr. Samaroo explained
that the lack of income of his Canadian company during its early years of
operation was a normal reflection of the start-up years of any company. I am
satisfied that it was reasonable for the Judge to accept such evidence.
Similarly, I do not find it unreasonable for the Judge to retain the school
records of Mr. Samaroo’s children when they were minor as an indicator of Mr.
Samaroo’s active and effective presence in Canada during those years.
[44]
Although the Judge erroneously wrote “two months” instead of “three
months” for the frequency of Mr. Samaroo’s visits back to Trinidad, that
mistake does not render the decision unreasonable. In fact, this error played
against Mr. Samaroo as it extended the frequency of his stays outside of
Canada, and the Judge nonetheless found in his favor despite that.
[45]
The Minister also incorrectly alleges that there
is no evidence that Mr. Samaroo bought and renovated a property in 2006, as a mortgage
document for a property in Belleville, dated May 31 2006, and a property tax
bill for 2010 are both included in the record.
[46]
Furthermore, I do not retain the Minister’s
argument that no mention was made of issues arising from the passport provided
by Mr. Samaroo, including the number of passport stamps. In his reasons, the Judge
notes the new calculation of days of physical presence and “that the new calculation is considering the non-declared
stamps in the passports, but there are other re-entry dates in the ICES report
not declared neither in the application nor the Residence Questionnaire.”
The Judge acknowledges that there are problems with the application and is not
blind to those issues, but states that he is convinced “that
the potential new absences from Canada during the relevant period will not
change the residency requirement established by the Act.”
[47]
In light of this, it was open to the Judge to
conclude that Mr. Samaroo had maintained and centralized his mode of living in
Canada during the relevant period, and it cannot be said that his decision does
not fall within a range of possible, acceptable outcomes in regards of the facts
and law.
[48]
Furthermore, a citizenship judge is not required
to refer to every piece of evidence. The reasons are only required to provide
sufficient grounds to allow the reviewing court to understand why a decision
was reached and to assess its reasonableness. As I stated in Canada (Minister
of Citizenship and Immigration) v Abdulghafoor, 2015 FC 1020 [Abdulghafoor]
at para 31, “the decision-maker is not required to
refer to each and every detail supporting his or her conclusion. […] [He is not
required to] set out every reason, argument or detail in the reasons, or to
make an explicit finding on each element that leads to a final conclusion.”
[49]
Regarding the issue of sufficiency of reasons,
reasonableness, not perfection is the standard (Abdulghafoor at para
33). In fact, “even where the reasons for the decision
are brief, or poorly written, this court should defer to the decision-maker’s
weighing of the evidence and credibility determinations, as long as the Court
is able to understand why the citizenship judge made its decisions” (Abdulghafoor
at para 33; Canada (Minister of Citizenship and Immigration) v Thomas,
2015 FC 288 at para 34).
[50]
I find it possible to understand the reasoning
used by the Judge and the evidence which led him to be satisfied that Mr.
Samaroo has been in Canada for the requisite period of time. In his reasons, the
Judge lists the evidence that he relied on and enumerates his credibility
concerns and how they were answered by Mr. Samaroo either at the hearing or
afterwards. I am also of the view that the Judge either acknowledged or
directly addressed the various comments made by the citizenship officer in the
FPAT report as required (Canada (Minister of Citizenship and Immigration) v
Lin, 2016 FC 58 at para 16; Canada (Minister of Citizenship and
Immigration) v Raphaël, 2012 FC 1039 at paras 23-24). This is
notably true for the facts that Mr. Samaroo continued operating a business in
Trinidad and that he has a residence there, or that the personal chequing
account is shared with his daughter as there was activity in the account when
both Mr. and Ms. Samaroo were outside of Canada.
[51]
At the hearing before the Court, counsel for the
Minister insisted on the distinction between passive and active indicia of
residence, arguing that Mr. Samaroo had not provided sufficient active indicia
of residency. Passive indicia of residence “only shows
registration, not attendance” (Canada (Minister of Citizenship and
Immigration) v Qarri, 2016 FC 113 [Qarri] at para 7) and consists of
evidence such as health cards, social insurance cards, Canadian income tax
returns, bank letters confirming that an account had been opened and leases as
well as notices of rent increase (Canada (Minister of Citizenship and
Immigration) v Chved, [2000] FCJ No 1661 [Chved] at paras 7 and 11).
[52]
I do not agree with the Minister that the
evidence on residency relied on by the Judge can be qualified as being limited
to passive indicia of residence and that such evidence was inconclusive or insufficient
(Qarri at para 48; Ozlenir v Canada (Minister of Citizenship and
Immigration), 2016 FC 457 at para 26; Zhu v Canada (Minister of
Citizenship and Immigration), 2008 FC 5 at para 9). Active indicia provided
by Mr. Samaroo included his children’s school records, bank statements showing
purchases in Canada, Trident’s activities in Canada, letters from doctors
certifying that they were the family physicians during the relevant period, and
the letter from the former High Commissioner for Canada to Trinidad. Like in Canada
(Minister of Citizenship and Immigration) v Lee, 2016 FC 67 at paras 26-27 in
which Mr. Justice Southcott equated the applicant’s arguments criticizing the
citizenship judge’s reliance on passive indicia of residence as a request to
reweigh evidence, I do not consider the Judge’s reliance on the factors he
retained to be sufficient to render his decision unreasonable.
IV.
Conclusion
[53]
For the reasons set forth above, this application
for judicial review is dismissed. Although the Minister might have preferred a
more elaborate and explicit decision, I am satisfied that the Judge addressed
the concerns that were raised by the citizenship officer and adequately explained
why they did not impact his finding on Mr. Samaroo’s residence in Canada. His
decision was reasonable and provided sufficient reasons. It is intelligible,
defensible and supported by the evidence, and I find that it meets the standard
of reasonableness.
[54]
Neither party has proposed a question of general
importance to certify. I agree there is none.
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