Docket: T-1796-15
Citation:
2017 FC 400
Ottawa, Ontario, April 26, 2017
PRESENT: The
Honourable Mr. Justice Phelan
|
BETWEEN:
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Applicant
|
|
and
|
|
MARAWAN MOHAMED
MAHROUS
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Introduction
[1]
This is the third judicial review concerning three
members of an Egyptian family (mother, daughter, and son). This judicial review
of the decision of a citizenship judge [Decision] relates to the son, Marawan
Mohamed Mahrous (for ease of reference referred to herein as Mr. Mahrous).
[2]
This decision should be read in conjunction with
the decisions in Canada (Citizenship and Immigration) v Ashmawy, 2017 FC
398 [Ashmawy] and Canada (Citizenship and Immigration) v Mahrous,
2017 FC 399 [Mahrous], in regard to the basic legal issues and principles
applicable to these cases.
[3]
The Decision at issue was rendered by a
different judge than those reviewed in Ashmawy and Mahrous and it
had a different format.
II.
Background
[4]
Mr. Mahrous claimed that his Relevant Period was
January 7, 2006 to May 15, 2009 – he declared 1,214 days of presence and 10
days of absence during that period. He was 119 days over the minimum of 1,095
days of physical presence in Canada. The Citizenship Judge expanded the
Relevant Period to be May 15, 2005 to May 15, 2009.
[5]
It was noted that Mr. Mahrous travelled
frequently prior to becoming a permanent resident on January 7, 2006, but
traveled little thereafter. He claimed that he was self-employed and had a wife
and a child (not included on his Residence Questionnaire [RQ] forms). He
declared the same address on Hickling Crescent as his mother and sister. His
father explained that it was also occupied by other unrelated individuals. He
left certain questions on the RQ blank, thus indicating that he had no business
either inside or outside of Canada.
[6]
At Mr. Mahrous’ citizenship hearing he provided
documents including travel forms (ICES records) and business records including
one invoice of container sales, photos of a refrigeration unit sold, communication
with a supplier, and a scene of a quarry said to be part of a new business.
[7]
The Citizenship Judge addressed a number of
issues raised by the Citizenship Officer:
•
Mr. Mahrous outlined the nature of the business
of buying used refrigeration units from Thermo King and selling them overseas.
He quit the business in 2009 and went into supplying stone for finishing in
Egypt. This evidence was accepted as credible.
•
The Citizenship Judge also accepted that Mr.
Mahrous was trading in Canada during the Relevant Period.
•
The issue of the undeclared marriage was
resolved by accepting that Mr. Mahrous felt he did not have to declare a
religious marriage, they were not living together and his wife only came to
Canada irregularly.
•
The Citizenship Judge accepted Mr. Mahrous’
nine-month delay in obtaining an OHIP card as due to his good health and his
aversion to doctors.
•
The housing issue was resolved by accepting the Respondent’s
father’s evidence that at the Hickling Crescent address the whole family lived
in the basement while the upper floors were occupied by the owners.
•
The Citizenship Judge accepted Mr. Mahrous’
story that his business was run “on the side”
with a partner who sold the units in Egypt. The business was later
incorporated.
[8]
The Citizenship Judge ultimately concluded that
Mr. Mahrous met the test in Re Pourghasemi, 62 FTR 122, 39 ACWS (3d) 251,
[1993] FCJ No 232 (TD) and had demonstrated residence in Canada for the
requisite number of days.
[9]
There were notes of the Citizenship Judge
available, but they added little to the reasoning beyond what was stated in the
Decision.
III.
Analysis
[10]
Despite the differences between this Decision
and those of the Respondent’s mother and sister, the issues and standard of
review – reasonableness – are the same. The focus of these Reasons is on the
reasonableness of the Decision.
[11]
Although the reasons in this Decision are more
fulsome than those of the mother and sister, the Citizenship Judge failed to
address critical issues and to explain her reasoning such that this Court might
hold the Decision to be reasonable.
[12]
The Court accepts, as part of the principle of
deference to the trier of fact, the Citizenship Judge’s acceptance of the delay
in obtaining an OHIP card. However, other areas of concern cannot be swept
under the credibility “rug”.
[13]
The Citizenship Judge failed to adequately address
the important issue of the Respondent’s undeclared marriage or to enquire how
Mr. Mahrous could have married in the 10‑day period he was out of Canada.
An explanation may exist, but none seems to have been given. Importantly, the
Citizenship Judge never pursued the significance of such marriage to the matter
of residence and the likelihood that the 10-day absence was the only absence
from Canada.
[14]
This failure to enquire into this important
issue is compounded in the case of the undeclared child: there is an absence of
any explanation for not declaring the child and the Citizenship Judge did not
consider the potential impact a real explanation might have on the residency
analysis.
[15]
The Citizenship Judge also failed to assess the
importance of the Cairo address on the Respondent’s Egyptian passport,
particularly in light of the fact that the Respondent’s wife and child were
apparently resident in Cairo.
[16]
The Citizenship Judge seemed to equate Mr.
Mahrous’ business activities with proof of residency. However, as disclosed in
the Certified Tribunal Record at 24-28, the various documents related to the
sale of refrigeration units establish nothing in terms of residence. While the
documents contain references to Egypt as the destination, the only Canadian
addresses are organizations principally in Montreal while Mr. Mahrous claimed
to be working in the Toronto area.
[17]
Even Mr. Mahrous’ banking documents, which refer
to an address on Lakeshore Road (not his residence or office), raise more
questions than answers.
[18]
It is unreasonable to draw a conclusion of
Canadian presence and/or residence from these business records.
[19]
To the extent that the Citizenship Judge relied
on evidence from the Respondent’s father given in a separate proceeding, this
was an error without at least putting the evidence to Mr. Mahrous.
[20]
Mr. Mahrous, quite rightly, conceded that there
were problems with the Decision, but he eloquently and forcefully argued that
there was a sufficient basis to uphold the Decision.
[21]
If the problems had been minor, Mr. Mahrous
would be correct. However, the gaps in the Decision are significant. I am not
satisfied that this Decision is reasonable in all of the circumstances.
IV.
Conclusion
[22]
For these reasons, the judicial review will be
granted and the Decision quashed.
[23]
For reasons previously given, the attempt to
supplement the Record is rejected but no costs are to be awarded.
Email this Content