Docket: T-2136-15
Citation:
2016 FC 854
Ottawa, Ontario, July 22, 2016
PRESENT: The
Honourable Mr. Justice Southcott
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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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ASMA JALEES
BAJWA
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
The Respondent, Ms. Asma Jalees Bajwa, is a
citizen of Pakistan who came to Canada and became a permanent resident on
January 17, 2001. She applied for Canadian citizenship on September 19, 2010
and subsequently appeared for a hearing before a citizenship judge. On November
25, 2015, the judge issued a decision, concluding that Ms. Bajwa had resided in
Canada for the number of days required to meet the residency requirements for
Canadian citizenship under the Citizenship Act, RSC 1985, c-29 [Act]. The
Minister of Citizenship and Immigration has applied for judicial review of this
decision.
[2]
As explained in more detail below, I am allowing
this application. The judge applied the residency test described by Justice
Muldoon in Pourghasemi, (Re): [1993] FCJ No 232 [Pourghasemi],
which requires an applicant to establish that he or she has been physically
present in Canada for 1095 days during the four year period preceding the
application. However, the judge’s decision does not contain an intelligible
analysis from which the Court can understand how he concluded that Ms. Bajwa
had demonstrated the number of days of physical presence in Canada necessary to
meet this test.
II.
Background
[3]
To meet the residence requirement for Canadian
citizenship, which is prescribed by section 5(1)(c) of the Act, Ms. Bajwa was
required to prove that she resided in Canada for at least 1095 days between
September 19, 2006 and September 19, 2010 [the Relevant Period]. She submitted
both an application and a subsequent Residence Questionnaire [RQ], which
referred to different numbers of absences and different total days of absence
from Canada during the Relevant Period.
[4]
A Citizenship and Immigration Canada officer
subsequently prepared a File Preparation Analysis Template [FPAT], the information
in which includes the following:
A.
Ms. Bajwa’s application declared 6 absences for
a total of 279 days in the Relevant Period. Her RQ declared 5 absences for a
total of 288 days. The officer calculated 10 absences during the Relevant
Period for a total of 336 days of absence and 1124 days of physical presence in
Canada;
B.
The information obtained from an Integrated
Customs Enforcement System [ICES] report issued by the Canada Border Service
Agency, the application, and the RQ indicates 10 trips. There are 3 foreign
entry stamps, 2 foreign exit stamps and no Canada stamps. The ICES report lists
3 bridge entries and, when Ms. Bajwa was presented with this information so
that exit dates from Canada could be established, she declared 7 days for 3
trips;
C.
The information provided by Ms. Bajwa is not
active, and she is unable to substantiate her presence in Canada through
documentation for the vast majority of the Relevant Period;
D.
Ms. Bajwa’s work history is conflicting, in
particular her association with a project in Connecticut, US as noted in her
Linked In profile;
[5]
On November 24, 2015, Ms. Bajwa appeared for a
hearing before the citizenship judge.
III.
Impugned Decision
[6]
In his decision, the judge noted that Ms. Bajwa
declared different lists of absences in her application and her RQ. He also
referred to the revised list prepared by the officer as calculating 1127 days
of presence and 336 days of absence during the Relevant Period. The judge
observed that Ms. Bajwa had provided addresses for residences related to the
entire Relevant Period, that the documentation was weak because most of the
rent was paid in cash, but that Ms. Bajwa clarified some apparent
contradictions and overlapping dates during the interview.
[7]
The judge also noted that Ms. Bajwa had serious
difficulties integrating into the Canadian workforce, that not all her
activities were properly documented, but that some official interactions with
Canadian institutions had been provided. He referred to a court dispute with
her landlord, documentation about real estate activity, bank accounts, letters
from companies confirming her activities, a notice of assessment, and the
support of social assistance.
[8]
In his analysis, the judge acknowledged that
there were many contradictions and confusing statements in the file, including
the different lists of absences from Canada as between the application and the
RQ. However, he stated that, after an extensive hearing, he had the opportunity
to verify that the Respondent had many interactions with the Canadian institutions
typical of a person who has established her residence in Canada. The judge also
stated that he did not have solid elements to dispute the declared days of
physical presence in Canada during the Relevant Period.
[9]
Referring to the test in Pourghasemi, the
Judge found that, on a balance of probabilities, Ms. Bajwa had demonstrated
that she resided in Canada for the number of days she claimed to reside in
Canada and therefore met the residence requirements under section 5(1)(c) of
the Act.
IV.
Issues and Standard of Review
[10]
The Minister raises as issues in this
application the following positions:
A.
The judge erred in his application of the test
for residence in Pourghasemi;
B.
The judge’s conclusion that Ms. Bajwa had
satisfied the residence requirement under section 5(1)(c) of the Act was not
supported by the evidence; and
C.
The judge’s reasons were inadequate.
[11]
The Minister submits, and I agree, that these
issues are to be reviewed on a standard of reasonableness.
V.
Analysis
[12]
My conclusion is that the judge’s decision is
not reasonable, because it fails to disclose an intelligible analysis. The
decision acknowledges the inconsistencies and other shortcomings in Ms. Bajwa’s
evidence, as had been identified by the officer, but does not demonstrate how
those deficiencies were resolved to the satisfaction of the judge. The only
analysis consists of the judge’s statements that: (1) Ms. Bajwa had many
interactions with Canadian institutions typical of a person who has established
her residence in Canada; and (2) that the judge did not have solid elements to
dispute the declared days of physical presence in Canada during the Relevant
Period.
[13]
It is difficult to understand what the judge
considers to be the declared days of physical presence, given the
inconsistencies between Ms. Bajwa’s application and RQ. The decision contains
no analysis of these inconsistencies. Even if this conclusion were to be
interpreted as a reference to the officer’s calculation of 1124 days of
presence in Canada, which the judge misstates as 1127 days, the decision does
not disclose how the judge considers Ms. Bajwa to have overcome the
acknowledged concerns about lack of documentary support for her physical
presence in Canada. The only analysis which could relate to this concern is the
judge’s statement that Ms. Bajwa had many interactions with Canadian
institutions typical of a person who has established her residence. However,
this statement does not explain how Ms. Bajwa’s interactions with Canadian
institutions assist her to demonstrate the required days of physical presence
in Canada.
[14]
It is well established that there are
three tests from which a citizenship judge may choose in assessing whether an
applicant has met the residency requirements prescribed by section 5(1)(c) of
the Act. Two of those tests are often referred to as qualitative tests, as
broadly speaking they consider the extent of an applicant’s integration into
Canadian life. Re Papadogiorgakis, [1978] 2 FC 208 (T.D.) prescribed a
test which considers an applicant’s “centralized mode
of existence”, and Koo (Re), [1993] 1 FC 286 (T.D.) established a
test determining in which location the applicant “regularly,
normally or customarily lives.”
[15]
The extent of Ms. Bajwa’s interactions with
Canadian institutions could be relevant to the application of the qualitative
tests for citizenship. However, the judge in the present case chose to apply
the test from Pourghasemi, which involves a strict calculation of days
of physical presence in Canada. It is difficult to see how Ms. Bajwa’s
interactions with Canadian institutions can assist her in meeting the
Pourghasemi test, unless those interactions demonstrated physical presence
in Canada on particular days. The judge’s decision does not allow the Court to
conclude that he analyzed Ms. Bajwa’s activities to assess the days she was
physically present in Canada, both because of the absence of any such detail in
the analysis and because the judge refers to verifying her institutional
interactions as being typical of a person who has established her residence in
Canada. The reference to these interactions being “typical”
would support a conclusion on the extent of Ms. Bajwa’s integration into
Canadian life, but it does not support a conclusion that those interactions
demonstrate particular days of physical presence.
[16]
In argument at the hearing of this application
for judicial review, Ms. Bajwa referred to information that she provided to the
judge at the citizenship hearing. She referred to changes in her residential
arrangements, including a landlord-tenant dispute, a car accident and resulting
medical treatment, treatment for depression, her employment of an immigration
consultant to assist with her citizenship application, her involvement with a
professional association, and her involvement with social services including
attending related workshops. Ms. Bajwa explained that she has family living in
the United States and that her travel there was usually done by road, which did
not generate passport stamps. She also referred to a visa issued by the United
Kingdom, but explained that she did not use this visa to leave Canada.
[17]
Ms. Bajwa’s arguments identify activities
consistent with those referred to by the judge in his decision. However, it
remains impossible to derive from the judge’s reasons whether or how he considered
the evidence of Ms. Bajwa’s activities to assist her in demonstrating the
required days of physical presence. The decision is not sufficiently
transparent and intelligible to be considered within the range of acceptable
outcomes and must be set aside as unreasonable. Accordingly, the Minister’s
application for judicial review is allowed, and Ms. Bajwa’s citizenship
application is to be redetermined by another decision-maker.
[18]
Neither party proposed a question of general
importance for certification for appeal, and none is stated.
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