Date: 20170824

Docket: IMM-4968-16

Citation: 2017 FC 784

[ENGLISH TRANSLATION]

Montréal, Quebec, August 24, 2017

PRESENT: The Honourable Mr. Justice Shore

BETWEEN:

MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS

Applicant

and

FRANJIEH EL KHOURY

Respondent

JUDGMENT AND REASONS

I.                    Nature of the case

[1]               This is an application for judicial review of a decision by the Immigration Appeal Division [IAD] of the Immigration and Refugee Board, dated November 8, 2016, allowing the respondent’s appeal of a removal order issued on July 1, 2013, at Pierre Elliot Trudeau International Airport. The removal order was issued by an officer of the Canada Border Services Agency [CBSA], because the respondent had not been physically present in Canada for at least 730 days during the reference period from July 1, 2008 to July 1, 2013.

II.                 Facts

[2]               The respondent is a Lebanese citizen, 48 years old, single, with no children. She arrived in Canada in June 2006. Her family members live in Lebanon, as did her parents, who are now deceased. She does not have any family in Canada.

[3]               The respondent alleges that she has lived in Montréal since her arrival in Canada and that she does contract work in computer repairs and computers, and makes a modest income. She lives very simply, participating in few activities outside her home. Her trips outside of Canada are paid for by her brother in Lebanon. In 2013, she began to take steps with Emploi Québec, and with the Ordre des ingénieurs du Québec for a licence. Since 2014, she has received social assistance.

[4]               The respondent began her doctorate in computer science at the Université Claude Bernard Lyon 1, from November 2006 to December 2009. The respondent says that she did her thesis by Skype and by email exchange. After she completed her thesis, she says that she continued to do research and volunteer assignments in order to become a university professor. She also published a book in May 2013, which contained part of her doctoral thesis.

[5]               The respondent states that she made the following seven trips outside Canada during the reference period from July 1, 2008 to July 1, 2013:

• July 30, 2009 – August 17, 2009, stay in Lebanon; August 17, 2009 – September 1, 2009, stay in France, for [translation] “the doctoral thesis defence”.
• December 1, 2010 – March 25, 2011, the respondent’s mother is gravely ill. Visit in Lebanon for 114 days.
• March 29, 2011 – April 15, 2011, the respondent’s mother is again gravely ill. Visit to Lebanon.
• August 22, 2011 – September 13, 2011, trip to Lebanon.
• Christmas (December 2011, 2-3 weeks, cousin’s wedding in Lebanon [no stamps in the passport for this trip]).
• September 3, 2012 – September 17, 2012, trip to Lebanon.
• June 13, 2013 – July 1, 2013, family visit in Lebanon.

[6]               On July 1, 2013, a CBSA officer issued a removal order against the respondent, which stated that the respondent had not been physically present in Canada for at least 730 days of the reference period from July 1, 2008, to July 1, 2013. The respondent appealed that decision. The appeal was heard on October 25, 2016.

III.               Issue

[7]               The applicant raises only one issue: Is the decision reasonable?

[8]               For the reasons that follow, the application for judicial review is allowed.

IV.              Impugned decision

[9]               The IAD allowed the appeal, because the removal order was invalid in law. Ultimately, the IAD considered that the respondent had discharged her burden of proof and that she had demonstrated on a balance of probabilities that she was in Canada for at least 730 days during the required period.

[10]           First, the IAD examined the respondent’s three Lebanese passports, noting the many entry and exit stamps. The IAD also noted that one trip, during the 2011 Christmas period, did not appear in the passports. The IAD commented on the various pieces of evidence of the respondent’s presence in Canada during that period, including letters from employers, income tax returns, and a letter from her landlord, as well as her testimony that she was in Canada, with the exception of her trips to Lebanon and France.

[11]           Although the IAD observed many shortcomings in the evidence, the IAD ultimately considered that the respondent [translation] “offered reasonable explanations and that these concerns, when put into the context of the rest of the evidence, did not discredit her testimony” (at para 15 of the IAD decision).

[12]           The IAD noted the “best evidence rule” advanced by the Minister to argue that the respondent had not done enough to discharge her burden. The IAD recognized this rule, but was also aware that the best evidence is not always available in the context of an administrative tribunal and that such a situation should not become an impossible burden.

[13]           The IAD rejects the jurisprudence, specifically Canada (Minister of Public Safety and Emergency Preparedness) v Mohammed Chanaoui et al, docket IMM-5113-15, a judgment rendered on May 6, 2016 [Chanaoui], filed at the hearing, to the effect that passport stamps cannot, alone, confirm a person’s presence in Canada in a given period. In this case, the credible testimony and the evidence filed by the respondent corroborate the respondent’s passport stamps and the information in the record of entries into Canada.

V.                 Relevant provisions

[14]           The relevant provisions of the Immigration and Refugee Protection Act, SC 2001, c. 27, are as follows:

VI.               The parties’ submissions

A.                 Standard of review

[15]           The parties agree that the appropriate standard of review is the standard of reasonableness (Canada (Citizenship and Immigration) v Hassan, 2017 FC 413 at para 21; Santiago v Canada (Public Safety and Emergency Preparedness), 2017 FC 91 at para 25).

(1)               Is the decision reasonable?

(a)   The applicant

[16]           The applicant submits that the impugned decision is not justified or intelligible. Specifically, the applicant raises the inadequacy of the reasons with respect to many pieces of evidence that he submits are important.

[17]           First, in the reasons for its decision, the IAD states that the respondent’s reaction to customs is a reasonable explanation [translation] “in the circumstances”, because the respondent always felt intimidated in the presence of security forces. The hearing transcript indicates that the respondent never explained that [translation] “she always felt intimidated in the presence of security forces” (at para 16 of the IAD decision). The [translation] “reasonable explanation” that was supposedly offered is not consistent with what was stated during the hearing.

[18]           Second, the applicant points out that there are other troubling aspects of the testimony which are not discussed in the reasons. In fact, the letters filed by the respondent to confirm her jobs in Canada do not report permanent full-time jobs, but rather occasional and on-call work. The respondent was also not able to file banking evidence for the period from 2009 to 2013. In the IAD’s written reasons, the IAD did not provide a rationale for the fact that it could find the overall evidence — which it found confusing during the hearing — credible at the time of the deliberation.

[19]           Third, the applicant points out that the type of evidence referred to in the decision consists of documents that indicate a passive presence and not her physical presence in Canada. It is difficult to understand how the passive indicia of residence that are set out (Canada (Citizenship and Immigration) v Samaroo, 2016 FC 689 at para 51 [Samaroo]) could have corroborated the record and the stamps in question with respect to the respondent’s physical presence in Canada during the reference period. The reasonableness of the outcome cannot be ascertained in the absence of reasoning on this point.

[20]           Fourth, the applicant points out that the IAD is also silent on a significant part of the evidence in the record that is clearly contradictory. First, the reasons do not refer to the respondent contradicting herself at the hearing with respect to the contents of the electronic copy of her CV that the CBSA found on her laptop. Second, there is nothing in the reasons about the other determinative but also contradictory evidence about whether or not it was necessary for the respondent to stay in France during her doctoral studies. Finally, the decision does not mention that the respondent’s statement to the CBSA was different than the one made at the hearing regarding the duration of one of her jobs.

 (b)       The respondent

[21]           The respondent submits that the IAD is presumed to have considered all the evidence. The mere fact that the IAD did not in its reasons refer to each and every piece of evidence submitted to it or listed in the applicant’s memorandum does not mean that the IAD did not consider it. This is not sufficient to set aside the general finding and to refer the matter back for reassessment. In light of the decision, it is obvious that the IAD provided many reasons and examples in connection with the testimony and the documentary evidence to make its finding. Indeed, it did not have to concentrate its analysis to the point of doing a microscopic analysis.

[22]           The respondent states that the fact that the IAD did not assign to some pieces of evidence the weight desired by the applicant does not mean that the IAD ignored this evidence. The IAD is entitled to weigh the evidence, and the Court cannot intervene unless there really was not any evidence on which the IAD could have relied to reach the stated conclusions.

[23]           The Federal Court must show great deference to the IAD’s findings. They must be upheld, unless the IAD’s reasoning is vitiated and the decision does not fall within the range of acceptable outcomes which are defensible in respect of the facts and the law.

(c)        Analysis

[24]           The IAD’s decision is not reasonable. The Court has before it the IAD’s finding on the respondent’s credibility, as well as on the assessment of the evidence. The IAD did not consider all the evidence to arrive at a reasonable decision.

[25]           The Court notes that the respondent declared at customs that she did not write the book Iris Biometric Model for Secured Network Access, which was found in her luggage. She said that the book was written by her cousin, who has the same name. At the IAD hearing, she admitted that she had lied because she had been gripped by fear: [translation] “I’m the type that I can’t -- well, if someone is talking somewhat loudly, I feel … fear and, like that, that’s it. That’s why I don’t know what happened, I panicked” (at p 59 of the IAD hearing transcript). The IAD found this explanation reasonable:

[TRANSLATION]

For example, we may, at first, be troubled by the appellant’s reaction at customs. In fact, she recognized that she had lied to the visa officer when she stated that she was not the author of the book in her luggage, that it was in fact by her cousin. The appellant stated that she was gripped by panic and reacted negatively to the officer’s questions. She always felt intimidated in the presence of security forces. It is this panel’s opinion that even if it is not a usual reaction, it is a reasonable explanation under the circumstances that has as much merit as the one advanced by the Minister to the effect that the appellant necessarily had something to hide. [Emphasis added.]

(At para 16 of the IAD decision.)

[26]           The applicant argues that the hearing transcript indicates that the respondent never provided an explanation for why [translation] “she always felt intimidated in the presence of security forces”. A reading of the transcript indicates that the respondent did not say this. However, the reasons for the decision do not go so far as to attribute these words to her. It is possible that these words simply reflect the IAD’s description of the respondent, that she is a timid, reserved, person, and that effectively, she is intimidated by someone who [translation] “is talking somewhat loudly” (at p 59 of the IAD hearing transcript). The IAD relied on the explanation given at the hearing by the respondent’s counsel that [translation] “people in uniform make other people jittery. Especially people who come from countries where the uniform has a lot of power, and Ms. El Khoury comes from Lebanon, she lived there until 2006, she lived through wars there, she talked about the bombings…” (at p 125 of the IAD hearing transcript).

[27]           The Court notes that the IAD was also silent regarding a significant part of the documentary and testimonial evidence that was contradictory in the record, specifically the actual content of the electronic copy of her CV on her computer, and whether it was a necessity for the respondent to stay in France for her doctorate and the duration of one of her jobs. The IAD did not elaborate on how the different letters filed by the respondent to certify her employment were logical given all the circumstances described in the evidence.

[28]           The IAD considered the issue of the respondent completing a doctorate in France during her residence in Quebec, as well as the issue of the respondent’s CV. At paragraph 10 of the decision, the IAD writes that the respondent [translation] “fulfilled her obligations from a distance using various technological means”. How can an administrative tribunal speculate, given the ambiguities and contradictions heard in the courtroom, without inherently logical evidence in writing?

[29]           The IAD did not have to explain in detail why it rejected the contrary position, but the Court points out that the two letters from the Canadian employers, Thoransoft and Idées Plus, are ambiguous with regard to the jobs held by the respondent. Further, the IAD did not explain why it considered the letters sufficient to establish the respondent’s physical presence. The IAD simply observes that [translation] “the appellant offered reasonable explanations and that these concerns, in the context of the rest of the evidence, do not discredit her testimony” (at para 15 of the IAD decision), without a rationale for this reasoning.

[30]           The letters from the Beirut employers are much more detailed. The respondent declared her income ($8,480 in 2008; $9,940 in 2009; $9,880 in 2010; $10,500 in 2011; $5,675 in 2012; $9,848 in 2013), but reports that she received social assistance only in 2014. The IAD did not explain why, in its opinion, this was enough for it to be satisfied with the respondent’s explications, without an adequate analysis of the situation in this regard.

[31]           The Court notes the judgment in Canada (Citizenship and Immigration) v Abdulghafoor, 2015 FC 1020 [Abdulghafoor] regarding the sufficiency of reasons in the credibility assessment. 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 decision” (Abdulghafoor, above, at para 33). The Court cannot understand why the IAD made its decision in this regard.

[32]           Second, the applicant alleges that the respondent did not provide evidence of active indicia of her residence to corroborate the passport stamps or the Integrated Customs Enforcement System [ICES] report. A single passport stamp cannot alone confirm a person’s presence in Canada (Chanaoui, above).

[33]           The active indicia of the respondent’s residence are limited to two letters of employment, a letter from her landlord, and income tax returns. The passive indicia of residence show “registration, not attendance” (Canada (Citizenship and Immigration) v Qarri, 2016 FC 113 at para 7) and consist 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” (Samaroo, above at para 51; Canada (Minister of Citizenship and Immigration) v Chved, [2000] FCJ No. 1661 at para 7 and 11).

[34]           The Court does not understand how the respondent could have spent the 2011 Christmas holiday period in Lebanon without the trip appearing in her passport or in the ICES record. The IAD refers to this without explaining the reason (at para 8 of the decision). The IAD rejects the fact that the respondent could have some of her trips stamped on a [translation] “pink card”, used by fraudsters to hide their presence in Lebanon: [translation] “It cannot be concluded based on the mere existence of this practice, that the appellant, a national of that country, used it” (at para 13 of the decision). This is just speculation. An administrative tribunal has the obligation to examine all the evidence, unless the contrary is established (Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 at para 16; Florea v Canada (Minister of Employment and Immigration), [1993] FCJ No. 598 (FCA) at para 1).

[35]           However, in this case, the IAD greatly relied on the passport stamps and the ICES record to establish the physical presence in Canada. As a whole, the decision also lacks transparency and intelligibility with regard to a central and indeed paramount piece of evidence. The absence of stamps leads the Court to find that there was a determinative and fundamental error.

VII.            Conclusion

[36]           For all these reasons, the application for judicial review is allowed. The matter is referred back to a differently constituted panel of the IAD for reassessment.

JUDGMENT in IMM-4968-16

THE COURT ORDERS AND ADJUDGES that the application for judicial review be allowed. The matter is referred back to a differently constituted panel of the IAD for reassessment. There is no general question for certification.

“Michel M.J. Shore”

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:		IMM-4968-16
STYLE OF CAUSE:		MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS v FRANJIEH EL KHOURY
PLACE OF HEARING:	Montréal, Quebec
DATE OF HEARING:	JULY 27, 2017
JUDGMENT AND REASONS:	SHORE J.
DATED:	August 24, 2017

APPEARANCES:

Mario Blanchard	FOR THE APPLICANT
Mabel E. Fraser	FOR THE respondent

SOLICITORS OF RECORD:

Attorney General of Canada Montréal, Quebec	FOR THE applicant
Mabel E. Fraser Westmount, Québec	FOR THE respondent