[2]
This is a difficult case as the application for
citizenship was brought over six years ago, on August 3, 2010. The relevant
period for determining residency dates back over ten years between August 3,
2006 and August 3, 2010 [relevant period]. The decision is unreasonable and I
therefore grant the application by the Minister and send it back to be
re-determined by a different citizenship officer.
II.
Background
[3]
Briefly, the facts are that Mr. Menezes is a
citizen of India and arrived in Canada on June 14, 2004, becoming a permanent
resident on the same day.
[4]
Mr. Menezes’ subsequent citizenship application
was not clear whether he met the statutorily required minimum days of residency
so he was asked to complete a residency questionnaire. A discrepancy of
declared absences between his residency questionnaire and his citizenship
application, along with discrepancies of employment and personal finances,
concerned the citizenship officer reviewing Mr. Menezes file. As a result, the
citizenship officer referred the matter to a hearing before a Citizenship
Judge.
[5]
The Citizenship Judge heard Mr. Menezes’
application on June 29, 2015 (almost five years after Mr. Menezes’ initial
application). Mr. Menezes had to prove at least 1,095 days of residency in
Canada during the relevant period.
[6]
The Citizenship Judge acknowledged the concerns
of the citizenship officer and asked Mr. Menezes to provide further
documentation. Mr. Menezes produced MasterCard statements from October 2008 to
the end of the relevant period. He also produced CIBC credit card statements
from August 2009, and Rogers bills for service at his residence from 2009
onwards. Mr. Menezes explained that neither CIBC nor Rogers could produce
statements further back than those provided.
[7]
The Citizenship Judge reviewed the stamps in Mr.
Menezes passport and found that Mr. Menezes had made a mistake in his residency
questionnaire. Mr. Menezes claimed a total of 357 declared days of absence from
Canada during the relevant period and as a result claimed 1,103 days of
presence in Canada.
[8]
The Citizenship Judge then used the Pourghasemi
legal test (Re: Pourghasemi, [1993] FCJ No 232 [Pourghasemi]) for
residency and found that Mr. Menezes satisfied the requirements under paragraph
5(1)(c) of the Act. The Citizenship Judge approved Mr. Menezes’ application for
citizenship.
III.
Issue
[9]
The question I must decide is whether the
Citizenship Judge reasonably concluded that Mr. Menezes satisfied the residency
requirement for Canadian citizenship?
IV.
Standard of Review
[10]
The standard of review applicable to the
judicial review of citizenship determinations is reasonableness. The question
of whether an individual has met the residency requirements of the Act is a
question of mixed fact and law also reviewable on the reasonableness standard (Canada
(Minister of Citizenship and Immigration) v Rahman, 2013 FC 1274 at para
13, citing Saad v Canada (Minister of Citizenship and Immigration), 2013
FC 570 at para 18).
V.
Analysis
[11]
The onus of establishing residency lies with the
citizenship applicant, in this case, Mr. Menezes (Falah v Canada (Minister
of Citizenship and Immigration), 2009 FC 736 at para 21).
[12]
A decision-maker such as a citizenship judge is
deemed to have considered all the evidence on the record (Canada (Minister
of Citizenship and Immigration) v Samaroo, 2016 FC 689 at para 30).
[13]
Crampton CJ. stated in Huang v Canada
(Minister of Citizenship and Immigration), 2013 FC 576 at paragraphs 21-25,
that a citizenship judge may still use any one of three established tests for
citizenship.
[14]
The three legal tests from which the citizenship
judge must pick are described by Justice
Danièle Tremblay-Lamer in Mizani v Canada (Minister of Citizenship and
Immigration), 2007 FC 698 at paragraph 10:
[10] This Court’s interpretation of
“residence” can be grouped into three categories. The first views it as actual,
physical presence in Canada for a total of three years, calculated on the basis
of a strict counting of days (Pourghasemi (Re), [1993] F.C.J. No. 232
(QL) (T.D.)). A less stringent reading of the residence requirement recognizes
that a person can be resident in Canada, even while temporarily absent, so long
as he or she maintains a strong attachment to Canada (Antonios E.
Papadogiorgakis (Re), [1978] 2 F.C. 208 (T.D.). A third interpretation,
similar to the second, defines residence as the place where one “regularly,
normally or customarily lives” or has “centralized his or her mode of
existence” (Koo (Re), 1992 CanLII 2417 (FC), 1992 CanLII 2417 (F.C.), [1993] 1 F.C. 286 (T.D.) at para. 10).
[15]
Unlike Pourghasemi, Re:
Papadogiorgakis, [1978] 2 FC 208 and Re: Koo, [1993] 1 FC 286,
conduct qualitative assessments of whether the applicant has “centralized their mode of living” in Canada.
[16]
The Minister argues that the Citizenship Judge’s
conclusion is unreasonable based on incorrect findings of fact and a lack of
objective evidence to corroborate Mr. Menezes’ application. To bolster this
position, the Minister points to the following conflicting factual findings in
the Citizenship Judge’s reasons:
- Mr. Menezes
stated that he was in Bahrain between December 2009 and January 2010.
However, the credit card statements submitted in support of his
application indicate Mr. Menezes was in Bahrain during different dates and
that Mr. Menezes had in fact travelled to the United States during that
time;
- The Citizenship
Judge makes a factual error with respect to a one day trip to the United
States on December 12, 2009, which is not supported by any evidence;
- The Citizenship
Judge contradicts himself both stating that Mr. Menezes was not present in
Canada at the start of the relevant period (August 3, 2006) and also
stating that Mr. Menezes returned to Canada on August 2, 2006;
- The Citizenship
Judge acknowledged a residence permit for Bahrain outside the relevant
period and incorrectly dated it as September 29, 2001, when it was
actually granted on September 29, 2011;
- Mr. Menezes had
no explanation for a re-entry stamp noted in the ICES report for re-entry
from the United States on December 16, 2009;
- Multiple
discrepancies with respect to Mr. Menezes employment history and income
reported to the Canada Revenue Agency are simply ignored by the
Citizenship Judge.
[17]
The Minister submits that the Citizenship Judge
failed to hold Mr. Menezes to his evidentiary burden. Furthermore, when there
is a gap in the evidence, a Citizenship Judge must assess its significance in a
meaningful way. As a result of all of the above, the Minister says that the
Citizenship Judge misapprehended the facts and evidence before him and failed
to produce adequate reasons for the granting of citizenship (Canada
(Citizenship and Immigration) v Raphaël, 2012 FC 1039 at para 28).
[18]
Mr. Menezes argues that the Minister is asking
the Court to reweigh the evidence before the Citizenship Judge and substitute
its own conclusion (which it is prohibited from doing) (Dunsmuir v New
Brunswick, 2008 SCC 9 at para 47 [Dunsmuir]; Kanthasamy v Canada
(Minister of Citizenship and Immigration), 2014 FCA 113 at para 99).
[19]
Furthermore, Mr. Menezes reminds the Court that
inadequacy of reasons is not a standalone ground of appeal (Canada (Minister
of Citizenship and Immigration) v Habibrahman Safi, 2014 FC 947 at para
17).
[20]
Mr. Menezes’ counsel provided excellent
explanations for the gaps in evidence noted by the citizenship officer but
these were not found in the reasons of the Citizenship Judge or in the
Certified Tribunal Record [CTR]. The problem on these facts is in order to
determine if the decision is reasonable, it must be discernible from the
reasons, or the Citizenship Judge’s notes (which we do not have in the CTR) or
in the CTR itself. There are no dots for me to connect on this record.
[21]
The Pourghasemi test is a quantitative
test, relying on number of days of residence which must add to a minimum of
1,095 over the relevant period. There is absolutely no analysis of how Mr.
Menezes meets the strict legal test in Pourghasemi. This makes it
extremely difficult to see how the Citizenship Judge’s decision was reasonable.
[22]
As pointed out by the Minister, at one point the
Citizenship Judge states that the relevant period is from August 3, 2006 to
August 3, 2010 and that “[Mr. Menezes] relevant period
starts while the applicant is outside Canada.” However, further on in
the decision, the Citizenship Judge says “since [Mr.
Menezes’] return to Canada on 2nd of August 2006”. Not only are these
two statements incompatible, it leaves in question whether the Citizenship
Judge correctly calculated the number of days of absence. Further to this
point, Mr. Menezes himself lists his home address in his Application for
Citizenship as Bahrain between August of 2006 and May of 2007. He lists a
corresponding absence for a work contract in Bahrain between August 2, 2006 and
June 10, 2007. I can’t tell from the reasons which, if any, of these periods
were used to calculate Mr. Menezes time in Canada.
[23]
Another problem, as pointed out by the Minister,
is the Citizenship Judge erroneously describing relevant passport stamps: “Another declared re-entry stamp on 12 Dec. 2009 is a one day
trip to USA, as ICES confirms.” According to the Minister, there is no
undeclared stamp or ICES entry for Mr. Menezes on December 12, 2009.
[24]
A typographical error would normally be of little
consequence but adds to the confusion here: “The first
residence permit for the applicant from UAE was issued on 29 Sept. 2001”
when in fact the correct date is September 29, 2011.
[25]
At no point does the Citizenship Judge make a
finding of fact of how many days Mr. Menezes was actually found to be in
Canada, nor does he say how Pourghasemi applies to this case.
[26]
I cannot understand from the Citizenship Judge’s
reasons, nor from the record and reasons together, why the Citizenship Judge
made the decision he did (Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paras 16-17).
[27]
Reasonableness requires that the decision
exhibit justification, transparency and intelligibility within the decision
making process (Dunsmuir, above; Canada (Citizenship and Immigration)
v Khosa, 2009 SCC 12). For the reasons described above, the Citizenship
Judge’s decision lacks transparency and intelligibility and is therefore
unreasonable.
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