Hussein v. Canada (Minister of Citizenship and
Immigration)
Between
Haiffa A A Ali Abdel Hussein, Applicant, and
The Minister of Citizenship and Immigration, Respondent
Haiffa A A Ali Abdel Hussein, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2015] F.C.J. No. 56
2015 FC 88
Docket: T-255-14
Federal Court
Toronto, Ontario
LeBlanc J.
Heard: September 22, 2014.
Judgment: January 22, 2015.
Docket: T-255-14
Federal Court
Toronto, Ontario
LeBlanc J.
Heard: September 22, 2014.
Judgment: January 22, 2015.
(27 paras.)
JUDGMENT AND REASONS
1 LeBLANC
J.:-- This is an appeal under subsection 14(5) of the Citizenship Act, RSC 1985, c C-29 (the Act) (Now section 22 as amended by the Strengthening Canadian Citizenship Act,
SC 2014, c 22) and section 21 of the Federal Courts Act, RSC 1985, c F-7, of a decision of a Citizenship Judge dated
November 20, 2013, rejecting the Applicant's application for Canadian
citizenship.
2 For
the reasons that follow, the appeal is granted.
I. Background
3 The
Applicant (Ms Hussein) is a citizen of Jordan who came to Canada in August 2001
and became a permanent resident on December 21, 2007 following a positive
determination of her claim for refugee protection under the Immigration and Refugee Protection Act, SC
2001, c 27. She applied for Canadian Citizenship on November 1, 2010 and
reported having been physically present in Canada for the whole four year
period immediately preceding the filing of the application (the Reference
Period), except for a total of 154 days where she stated having been travelling
outside Canada amounting to 1099 days of physical presence in Canada.
4 In
the course of the processing of her citizenship application, Ms Hussein was
required to complete and provide a Residence Questionnaire in which she
declared five additional day trips to the USA, three of which occurred during
the Reference Period.
5 A
hearing before the Citizenship Judge was held on August 1, 2013 at which time
Ms Hussein was asked to provide further supporting documentation covering the
entire Reference Period. In response to that request Ms Hussein submitted her
tax Returns for the years 2007 to 2010, her TD Visa account statement, her HSBC
MasterCard account statement, her bank account statement, her mobile phone
account, her home and car insurance, her Ontario Health Insurance Plan (OHIP)
personal claim history along with her Jordanian passport and Canadian Travel
Document including the visa transactions for her declared trips to the United
Arab Emirates and the Integrated Customs Enforcement System report (ICES).
6 In
a decision issued November 20, 2013, the Citizenship Judge rejected Ms
Hussein's citizenship application as he was not satisfied that Ms Hussein met
the residence requirement under subsection 5(1)(c) of the Act based on a strict
counting of days. The Citizenship Judge found that Ms Hussein had failed to
declare a certain number of absences in both her initial application and the
Residence Questionnaire. These absences consisted mainly of four entries to the
USA on particular dates during the Reference Period but without any declared
return dates. Additionally, the Citizenship Judge noted the existence of two
visas, one for the USA and one for Turkey, for which no absences or trips had
been declared by Ms Hussein. Furthermore, there was no passport documentation
provided for the first nine months of the Reference Period.
7 The
Citizenship Judge, when analyzing the supporting documentation submitted by Ms
Hussein, found that it lacked consistency and that it was therefore impossible
for him to determine, on a balance of probabilities, how many days Ms Hussein
had been physically present in Canada.
II. Issue and Standard of Review
8 The
sole issue to be resolved in this case is whether the impugned decision
warrants intervention by this Court.
9 Ms
Hussein claims that the Citizenship Judge did not appropriately apply the
residency test by failing to consider the evidence before him and did not
provide adequate and sufficient reasons in support of his decision.
10 Both
parties agree that the standard of review for citizenship appeals is
reasonableness. Indeed, "[i]t is generally accepted in the case law that a
citizenship judge's application of evidence to a specific test for residency
under paragraph 5(1)(c) of the Act raises questions of mixed fact and law and
is thus reviewable on a standard of reasonableness" (Saad v Canada (Minister of Citizenship and Immigration), 2013 FC 570, 433 FTR 174, at para 18, and see also Canada (Minister of Citizenship and Immigration) v Rahman, 2013 FC 1274 at para 13; Balta v Canada
(Minister of Citizenship and Immigration), 2011 FC 1509,
403 FTR 134 at para 5; Canada (Minister of Citizenship
and Immigration) v Baron, 2011 FC 480, 388 FTR 261 at
para 9; Canada (Minister of Citizenship and Immigration)
v Diallo, 2012 FC 1537, 424 FTR 156 at para 13; Huang v Canada (Minister of Citizenship and Immigration) 2013 FC 576 at paras 24 to 26).
III. Analysis
11 Subsection
5(1)(c) of the Act provides for the residency requirement which citizenship
applicants need to meet in order to be successful. It reads as follows:
(1) The Minister shall
grant citizenship to any person who
makes application for
citizenship;
is eighteen years of age
or over;
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;
·
[...]
* * *
(1) Le ministre attribue
la citoyenneté à toute personne qui, à la fois:
en fait la
demande;
est âgée d'au moins
dix-huit ans;
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;
·
[...]
12 According
to this Court's jurisprudence, three different tests are available to
Citizenship Judges in assessing the residency requirement in any given case (Sinanan v Canada (Minister of Citizenship and Immigration) 2011 FC 1347 at paras 6 to 8; Huang v Canada
(Minister of Citizenship and Immigration), 2013 FC 576,
at paras 17 and 18).
13 One
of these three tests involves the strict counting of days of physical presence
in Canada which must total at least 1095 days in the four years preceding the
application. It is often referred to as the quantitative test or the Pourghasemi test (Pourghasemi
(Re) (FCTD) [1993] 62 FTR 122, [1993] F.C.J. No 232
(QL)).
14 As
indicated above, this is the test the Citizenship judge chose to apply in the
present case. The Citizenship Judge found two problems with Ms Hussein's
citizenship application that made it, "impossible for (him) to determine,
on balance of probabilities, how many days the Applicant was physically present
in Canada": (1) there was a certain number of undeclared absences from
Canada during the Reference Period; and (2) there was a lack of consistency in
the documentation submitted by Ms Hussein to support her claim of physical
presence in Canada, including the absence of passport documentation for the
first nine months of the Reference Period.
15 I
find that the Citizenship Judge's decision is problematic in a number of
respects.
16 First,
the Citizenship Judge did not engage in any counting of days as required with
the Pourghasemi test. When
reviewing the decision, it is clear that the Citizenship Judge accepted, as a
starting point, the number of 1099 days of physical presence in Canada.
However, there is no further mention of the number of days that would ensue
from the filing of Ms Hussein's Residence Questionnaire and the further days of
absence. There is also no mention of the number of days Ms Hussein would have
been in Canada in total while this is at the crux of the test chosen and used
by the Citizenship Judge. As this Court stated in Jeizan
v Canada (Minister of Citizenship and Immigration), 2010
FC 323, 386 FTR 1, at para 18:
·
At the very least, the reasons
for a Citizenship Judge's decision should indicate which residency test was
used and why that test was or was not met: see Canada (Minister of Citizenship and
Immigration) v Behbahani, 2007 FC 795, at paras 3-4; Eltom v Canada (Minister of Citizenship and Immigration), 2005 FC 1555, at para 32; Gao v Canada
(Minister of Citizenship and Immigration), 2003 FCT 605,
[2003] F.C.J. No. 790 at para 22; Gao v Canada (Minister
of Citizenship and Immigration), 2008 FC 736, at para.
13. (Emphasis added)
17 In
particular, the Citizenship Judge did not explain how the so-called
inconsistencies in the evidence submitted by Ms Hussein made it
"impossible" for him to proceed with that calculation.
18 The
Respondent argues that the Citizenship Judge simply could not proceed with the
counting of days due to the pattern of the absences of unknown duration. I
disagree. If anything, it is unclear in the decision if that was the case.
Eligible residency days and the number of days during which Ms Hussein was
absent from Canada are determinative in the outcome of Ms Hussein's Citizenship
application. Indeed, when the only way to understand the Citizenship Judge's
reasons regarding those respective numbers is to conduct a de novo examination of the record, the
decision is not likely to meet the requirements for transparency, justification
and intelligibility set out in Dunsmuir, above (Korolove v Canada (Minister of
Citizenship and Immigration), 2013 FC 370, 430 FTR 283,
at para 47).
19 This
leads to the second concern I have with the Citizenship Judge's decision and
which is related to Ms Hussein's undeclared absences from Canada. The evidence
on record shows that the Citizenship Judge asked Ms Hussein questions in order
to understand the visas for the United Kingdom and for Turkey as well as the
trips to the USA and that Ms Hussein provides reasonable explanations regarding
these issues. According to her affidavit, she explained to the Citizenship
Judge that her trips to the USA were day-trips for vacation or doctor's
appointments. As for the three month Turkish visa, Ms Hussein explained that it
was never used as she was planning to use it to visit her husband but that they
decided instead to meet in the United Kingdom, hence the existence of a United
Kingdom visa. The non-use of the Turkish visa was confirmed by her passport
evidence and her Canadian Travel Document which reveals no immigration stamps,
either entry or exit, to Turkey. At no point in his decision does the
Citizenship Judge refer to that evidence or make a finding that these
undeclared absences reduced the number of days of physical presence in Canada
below the required threshold of 1095 days.
20 Another
concern with the Citizenship Judge's decision is his treatment of the extensive
supporting documentary evidence submitted by Ms Hussein which he found to be
lacking in consistency. In fact, there is, again, no explanation as to how and
why the Citizenship Judge was dissatisfied with that evidence. No analysis of
the documentation is provided and no attempt to reconcile the so-called
inconsistencies is made, whereas the said documentation covers the entire Reference
Period.
21 The
Citizenship Judge's finding as to the lack of consistency of the supporting
documentation submitted by Ms Hussein is nothing more than a bald statement. As
this was central to the Citizenship Judge's decision, I am at a loss as to why
he came to such conclusion given the record that was before him.
22 As
for the absence of passport documentation for the first nine months of the
Reference Period, Ms Hussein explained that this was due to her status as a
refugee claimant. Indeed, her refugee status was conferred to her by way of a
positive decision on April 4, 2007 and she applied for a Jordanian passport on
July 8, 2007. She could not, however, return to Jordan to get the passport. In
addition, she provided her credit card account, showing purchases in Canada
during that period. Again, no reference to this evidence is found in the
Citizenship Judge's decision.
23 As
a result, I find the Citizenship Judge's decision to be unreasonable as it was
based on an erroneous finding of fact that was made without regard for the
material that was before him.
24 I
also find that this decision is reviewable on the ground that the reasons are
not adequate. The principles governing the adequacy of reasons reviewed under
the standard of reasonableness require this Court to inquire into the qualities
that make a decision reasonable, referring both to the process of articulating
the reasons and to outcomes. According to those principles, reasons for
decisions are adequate when they are clear, precise and intelligible and when
they state why the decision was reached. Adequate reasons show a grasp of the
issues raised by the evidence, allow the parties to understand why the decision
was made and allow the reviewing court to assess the validity of the decision (Dunsmuir v New Brunswick, 2008 SCC 9 at para
47, [2008] 1 SCR 190; Newfoundland and Labrador Nurses'
Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62, [2011] 3 SCR 708, at para 16; Jeizan, above, at para 17 and see also Lake v Canada
(Minister of Justice), 2008 SCC 23, [2008] 1 SCR 761 at
para. 46; Mehterian v Canada (Minister of Employment and
Immigration), [1992] F.C.J. No. 545 (F.C.A.); VIA Rail Canada Inc. v National Transportation Agency, [2001] 2 FC 25 (F.C.A.), at para. 22; Canada
(Minister of Citizenship and Immigration) v Arastu, 2008
FC 1222, at paras. 35-36).
25 Here,
the Citizenship Judge failed to provide adequate reasons explaining why and how
the supporting documentation submitted by Ms Hussein was insufficient to
determine her residency days; and why and how her undeclared absences impacted
on the 1095 day threshold of physical presence. I find that the reasoning path
of the Citizenship Judge was inadequate and unintelligible in a way that led to
a result outside the range of possible and acceptable outcomes defensible in
respect of the facts and law.
26 I
agree therefore with Ms Hussein that there are substantive problems with the
reasons of the impugned decision rendering it unintelligible and therefore
preventing this Court from understanding why the Citizenship Judge rejected her
application for citizenship.
27 Ms
Hussein's appeal is therefore granted. Given the amendments to the Act which
came into force on August 1, 2014 and which modified the manner in which
applications for citizenship are to be determined by placing the adjudication
of such applications within the ambit of the Respondent, the matter will be
sent back for a re-determination to the "decision-maker", rather than
to a citizenship judge, as it is to be re-determined, pursuant to section 35 of
the Act, in accordance with the Act, as it now reads.
JUDGMENT
THIS COURT'S JUDGMENT is that the appeal is granted and the matter is sent back to the
decision-maker for re-determination.
LeBLANC J.
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