Canada (Minister of Citizenship and Immigration) v.
Dabbous
Between
The Minister of Citizenship and Immigration, Applicant, and
Hisham Dabbous, Respondent
Hisham Dabbous, Respondent
[2012] F.C.J. No.
1490
[2012] A.C.F. no 1490
2012 FC 1359
Docket T-1992-11
Docket T-1992-11
Federal Court
Montréal, Quebec
Pinard J.
Heard: November 21, 2012.
Judgment: November 27, 2012.
Montréal, Quebec
Pinard J.
Heard: November 21, 2012.
Judgment: November 27, 2012.
(20 paras.
· REASONS FOR JUDGMENT AND JUDGMENT
1 PINARD J.:-- This is an appeal brought by the
Minister of Citizenship and Immigration (the applicant) under subsection 14(5)
of the Citizenship Act, R.S.C.,
1985, c. C-29 (the Act), and section 21 of the Federal
Courts Act, R.S.C., 1985, c. F-7. On October 13, 2011,
the citizenship judge, relying on paragraph 5(1)(c) of the Act, approved the application for Canadian citizenship made
by Hisham Dabbous (the respondent).
2 The
respondent, a citizen of Lebanon, has been a permanent resident of Canada since
September 15, 2004. He applied for Canadian citizenship on March 27, 2008. In
his application, he declared that, during the relevant period from September
15, 2004, to March 27, 2008, he was present in Canada for 1,177 days and absent
for 111 days.
3 The
respondent met with an immigration officer at an interview held on March 10,
2009. The officer then sent him a "Residence Questionnaire" on May
20, 2009. The respondent sent back all his documents on June 6, 2009. A
citizenship officer then wrote a memorandum to the citizenship judge,
describing the deficiencies in the file and making remarks and raising
questions about the quality of the evidence submitted in support of the
citizenship application. The officer referred the application to a citizenship
judge to have these questions resolved under paragraph 5(1)(c) of Act.
4 On
August 18, 2011, the respondent appeared before the citizenship judge. The
judge granted him additional time to fill out and sign a new "Residence
Questionnaire" and to file additional evidence regarding his residence in
Canada, particularly a report by the Canada Border Services Agency (the CBSA)
listing his entries during the relevant period for the purposes of his
citizenship application.
5 On
August 29, 2011, the respondent filed a new questionnaire, bank statements and
tax returns covering the entire relevant period. After receiving this
documentation, the citizenship judge granted the citizenship application.
6 In
his decision, the citizenship judge noted that the issue to be decided was
whether the respondent met the requirements of paragraph 5(1)(c) of the Act, according to which a permanent
resident must, within the four years preceding the date of his or her
application, have accumulated at least three years (1,095 days) of residence in
Canada. After taking note of the exhibits received after the hearing, the
citizenship judge found as follows:
· [TRANSLATION]
· DECISION: On the basis of all the evidence in the record, I find
that, on a balance of probabilities, the applicant established and maintained
his residence in Canada from 2004 to 2008 and that he centralized his life and
the lives of his family in Canada for more than 1,095 days of physical
residence, in Canada, as required by the Citizenship
Act.
7 The
relevant paragraph of the Act reads as follows:
· 5. (1) The Minister shall grant citizenship
to any person who
· ...
· (c) is a permanent
resident within the meaning of subsection 2(1) of the Immigration
and Refugee Protection Act, and has, within the four
years immediately preceding the date of his or her application, accumulated at
least three years of residence in Canada calculated in the following
manner:
for every day during
which the person was resident in Canada before his lawful admission to Canada
for permanent residence the person shall be deemed to have accumulated one-half
of a day of residence, and
for every day during
which the person was resident in Canada after his lawful admission to Canada
for permanent residence the person shall be deemed to have accumulated one day
of residence;
* * *
· 5. (1) Le ministre attribue la citoyenneté à
toute personne qui, à la fois :
· [...]
· c) est un résident permanent au sens du
paragraphe 2(1) de la Loi sur l'immigration et la
protection des réfugiés et a, dans les quatre ans qui
ont précédé la date de sa demande, résidé au Canada pendant au moins trois ans
en tout, la durée de sa résidence étant calculée de la manière suivante :
un demi-jour pour
chaque jour de résidence au Canada avant son admission à titre de résident
permanent,
un jour pour chaque
jour de résidence au Canada après son admission à titre de résident
permanent;
8 The
issue in this appeal is whether the citizenship judge erred in finding that the
respondent met the residence conditions provided for in paragraph 5(1)(c) of the Act.
9 The
applicant also raises the question of the adequacy of the reasons as a distinct
issue. However, in my opinion, given the decision of the Supreme Court of
Canada in Newfoundland and Labrador Nurses' Union v.
Newfoundland and Labrador (Treasury Board), 2011 SCC
62, [2011] 3 S.C.R. 708 at paragraphs 21 and 22, this question is, rather, a
factor to be considered when analyzing the reasonableness of the decision.
10 The
decision of the citizenship judge involves a question of mixed fact and law
that must be reviewed on the reasonableness standard (see, among others, The Minister of Citizenship and Immigration v. Abdallah, 2012 FC 985 at paragraph 8, and Minister of
Citizenship and Immigration v. Saad, 2011 FC 1508 at
paragraph 9 [Saad]). However, I
find that it is the correctness standard that applies to the interpretation of
the residency provisions of the Act, and that residency means physical presence
in Canada (see Martinez-Caro v. The Minister of
Citizenship and Immigration, 2011 FC 640 [Martinez-Caro]).
11 First,
the applicant argues that it is impossible to determine which of the three
residency tests considered by this Court was used by the citizenship judge.
Second, the applicant submits that the citizenship judge's decision does not
contain adequate reasons since it does not include the required critical
analysis. The applicant submits that the citizenship judge should have
explained in greater detail his finding that the respondent met the
requirements of paragraph 5(1)(c)
of the Act. Finally, the applicant submits that the citizenship judge ignored
numerous deficiencies in the evidence filed by the respondent.
12 I
dismiss the applicant's first argument related to identifying the particular
residency test used, relying on Martinez-Caro, above. In that case, my colleague Justice Donald J. Rennie
thoroughly reviewed the case law on the residency requirement of paragraph 5(1)(c)
of the Act, and provided a detailed analysis of the relevant principles. As I
stated in Hysa v. The Minister of Citizenship and
Immigration, 2011 FC 1416 at paragraph 3 [Hysa], I fully adopt his reasoning, which led
him to the following conclusion. Justice Rennie refers to Re Pourghasemi (1993), 19 Imm.L.R. (2d) 259,
62 F.T.R. 122 [Pourghasemi], and
Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 [Rizzo], and concludes as follows:
· [52] In my view therefore, the interpretation of the residency provision
of the Citizenship Act is
subject to the standard of correctness and that residency means physical
presence in Canada.
· [53] It is my opinion that Re Pourghasemi is the interpretation that reflects the true meaning, intent and
spirit of subsection 5(1)(c) of
the Act: Rizzo, paras 22 and 41.
For this reason it cannot be said that the Citizenship Judge erred in applying
the Re Pourghasemi test.
Furthermore, the Citizenship Judge correctly applied the Re Pourghasemi test in determining that a
shortfall of 771 days prevented a finding that 1,095 days of physical presence
in Canada had been accumulated.
13 My
colleagues Justice Judith Snider (Ye v. The Minister of
Citizenship and Immigration, 2011 FC 1337 at paragraph
10) and Justice Simon Noël (Al Khoury v. Minister of
Citizenship and Immigration, 2012 FC 536 at paragraph
27) adopted this same reasoning regarding the legal interpretation of paragraph
5(1)(c) and agreed with Justice
Rennie that residency means physical presence in Canada.
14 In
the present case, the citizenship judge clearly stated in his reasons that the
issue was whether the respondent could prove that he met the residency
requirement under paragraph 5(1)(c) of the Act, which requires 1,095 days of physical presence in
Canada. He also found that the respondent [TRANSLATION] "established and
maintained his residence in Canada from 2004 to 2008 and that he centralized
his life and the lives of his family in Canada for more than 1,095 days of
physical residence, in Canada, as required by the Citizenship
Act".
15 In
my opinion, in light of Martinez-Caro, above, and my decision in Hysa, it would have been enough for the citizenship judge to rely solely
on the physical presence test (the most stringent test), if the evidence
justified it, without inquiring into whether the respondent had [TRANSLATION)
"centralized his life and the lives of his family" in Canada during
the relevant period.
16 However,
I find that the citizenship judge's decision contained inadequate reasons. In
the present case, the citizenship judge stated the issue to be decided, noted
the evidence filed by the respondent after his appearance before him and
concluded that the respondent had met the residency condition set out in
paragraph 5(1)c) of the Act
because he had proved physical presence on Canadian soil for more than 1,095
days during the relevant period. However, he failed to explain how and why the
respondent had met this requirement. Moreover, he did not consider any of the
concerns raised by the citizenship officer in her memorandum to the citizenship
judge, particularly regarding the following:
the respondent's
passport, that is, the agent's note to the effect that, despite the stamp
indicating a return to Canada on March 27, 2007, no trip had been reported for
that date;
the bank statements for
an account for which the applicant is the agent, with his spouse, that is, the
agent's note according to which the direct transactions were generally frequent
and regular except for periods where there were no direct transaction when the
client claimed to be in Canada. The officer listed these periods, which often
vary in length from one to two months.
17 Furthermore,
as the applicant notes, it appears from the reasons of the citizenship judge
that the judge was of the opinion that the respondent's record lacked
information concerning his absences from Canada, given the additional time
granted so that the respondent could file a second "Residence
Questionnaire" and additional evidence regarding his residency in Canada,
including the CBSA report listing his entries and exits during the relevant
period. The respondent returned the second questionnaire, but not the CBSA
report. However, the judge wrote in his decision that [TRANSLATION] "the
subject submitted the additional documentation as requested".
18 Consequently,
I am of the opinion that, in the present case, it was not reasonable for the
citizenship judge to declare himself to be satisfied that the respondent was
present in Canada for more than 1,095 days without giving any explanation or
analysis regarding the additional evidence he mentions. As Justice Marie-Josée
Bédard notes in Saad, above:
· [22] It also appears from the judge's notes that, at the end of the
hearing, he was not completely satisfied with the information obtained from the
respondent because he asked him to provide additional documents. However, the
notes do not specify how and why the judge was dissatisfied with the evidence
submitted to him up until that point... .
· [23] In his notice of the decision, the judge stated that he was
satisfied with the documents provided by the respondent, but again, it is unknown which test he applied or which document convinced him that the respondent had satisfied the
residence criteria. During the hearing, counsel for the
respondent did attempt to infer from the decision and the citizenship judge's
notes that he had applied the physical presence test, that the applicant's
secondary evidence to compensate for the lack of a passport was satisfactory
and that the documents required during the hearing and related to the
respondent's company were relevant to confirm that he had always been a
resident, even after the expiry of the reference period, but, in doing so, he,
in my opinion, compensated for the judge's decision. Justice Montigny indicated
the following in Jeizan, above,
at paragraph 20:
· 20The decision-maker's reasoning should not
require additional explanations. In the case at bar, it
is the Respondent's counsel who explains the Citizenship Judge's reasoning in
her memorandum of fact and law, speculation by way of counsel's argument is not
different than speculation by way of a party's affidavit: Alem v. Canada (Minister of Citizenship and Immigration), 2010 FC 148 (CanLII), 2010 FC 148, [2010] F.C.J. No. 176 at para
19.
· [24] I believe that my finding in Baron, above, at paragraph 18, fully applies to this case:
· 18 The reasons
for the citizenship judge's decision are not adequate. The reasoning is
unclear. The decision is not transparent and it is impossible to understand its
basis. Given this situation, I am not in a position to
determine whether it falls within a range of possible, acceptable outcomes in
respect of the facts and law. The intervention of the Court is therefore
warranted.
· [25] I therefore believe that the citizenship judge's decision does
not have the qualities that make it reasonable.
(Emphasis added.)
|
19 Upon
reading the reasons for decision of the citizenship judge in the present case,
the Court is unable to understand the reasoning of the judge, as the Court is
unable to see how and why, in the circumstances, the evidence persuaded him
that the respondent had met the residence criteria (see Saad, above). I am not satisfied that the citizenship judge's decision
falls within the range of possible, acceptable outcomes which are defensible in
respect of the facts and the law.
20 For
all these reasons, the appeal is allowed. The decision of the citizenship
judge, dated October 13, 2011, is quashed, and the case is referred back to a
different citizenship judge for redetermination.
JUDGMENT
The appeal of the Minister of Citizenship and
Immigration is allowed. The decision dated October 13, 2011, of the citizenship
judge, Gilles H. Duguay, granting Canadian citizenship to the respondent is
quashed, and the case is referred back to another citizenship judge for
redetermination.
Certified true translation: Michael Palles
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