FEDERAL COURT ORDERS COSTS AGAINST APPLICANT IN CITIZENSHIP CASE

Many applicants misrepresent their residency in Canada to obtain citizenship. The consequences of such conduct can be dire, as illustrated by the recent case below. Do not misrepresent!

Canada (Minister of Citizenship and Immigration) v. Achkar

Between
The Minister of Citizenship and Immigration, Plaintiff, and
Jihad Achkar, Marie Sassine, Youmna Achkar,
Yasmina Achkar, Anis Achkar,
Iyad Achkar, Defendants

[2015] F.C.J. No. 597

[2015] A.C.F. no 597

2015 FC 605

Docket: T-817-14

 Federal Court

St-Louis J.

Heard: April 28, 2015.
Judgment: May 8, 2015.

(42 paras.)

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JUDGMENT AND REASONS

·       ST-LOUIS J.:-- 

I. INTRODUCTION

1     The Minister of Citizenship and Immigration (the Minister) seeks summary judgment declaring that the defendants, six members of the same family, obtained their Canadian citizenship by false representations or fraud, or by knowingly concealing material circumstances

2     I am satisfied that the defendants have not raised a genuine issue for trial as to whether they obtained their Canadian citizenship as a result of false representations made in their citizenship applications and consequently I will issue the summary judgment sought by the Minister.

II. BRIEF STATEMENT OF FACTS

3     The defendants are a family made up of the spouses, Jihad Achkar and Marie Sassine, and their four children, Youmna, Yasmina, Anis and Iyad.

4     On July 6, 2001, the defendants arrived in Canada and were landed as permanent residents of Canada.

5     On January 20, 2005, Ms. Sassine signed her application for Canadian citizenship and also signed the application for each of the couple's children. Thus, the reference period for their applications is from July 6, 2001, to January 20, 2005.

6     Ms. Sassine stated on her application that she was absent from Canada for 157 days and present 1137 days during the reference period. Ms. Sassine stated on the application that she signed for each child that they were not absent from Canada for six months or more during the reference period.

7     On March 4, 2005, Mr. Achkar signed his application for Canadian citizenship. The reference period for his application is from July 6, 2001, to March 4, 2005.

8     Mr. Achkar stated on his application that he was absent from Canada for 138 days and present 1199 days during the reference period.

9     Moreover, all the members of the family indicated only Canadian home addresses during the entire reference period.

10     On May 30, 2006, Mr. Achkar was granted Canadian citizenship and on April 11, 2006, Ms. Sassine and the four children were granted Canadian citizenship.

11     On November 3, 2011, pursuant to section 18 of the Citizenship Act, RSC 1985, c C-29 (Citizenship Act), the Minister served on each defendant notices of citizenship revocation dated June 29, 2011, (the Notices) informing them that he intended to file a report with the Governor in Council stating that they obtained Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances so that their Canadian citizenship could be revoked.

12     In the Notices sent to Mr. Achkar and Ms. Sassine, the Minister claims that they [TRANSLATION] "failed to declare all of [their] absences from Canada during the four years immediately preceding the date of their citizenship applications [and made] false representations on their citizenship applications with respect to the residency requirement during the four years immediately preceding the date of their citizenship applications."

13     In the Notices sent to the children, the Minister claims that [TRANSLATION] "[their] parents failed to declare all of their absences from Canada during the four years immediately preceding the date of their citizenship applications [and] provided false information on their citizenship applications with respect to their residency in Canada during the four years immediately preceding the date of their citizenship applications."

14     Indeed, according to the evidence adduced by the Minister, the parents allegedly were not present in Canada for the number of days indicated in their forms, the children allegedly were absent from Canada for over six months and all the family members allegedly did not live at the home addresses provided.

15     Indeed, contrary to the information provided in their citizenship applications, the defendants came to Canada on July 6, 2001, to obtain their permanent resident status, stayed in the country for a few weeks to compete the administrative procedures and then left to live in Lebanon. During the following two years, the parents returned to Canada only a handful of times and the children never returned.

16     The family came to Canada and lived there only from July 2003 to July 2006.

17     On November 3, 2011, the defendants requested that their case be referred to the Federal Court in accordance with the provisions of subsection 18(1) of the Citizenship Act.

18     On April 3, 2014, the Minister filed a statement of claim under Rule 171(a)(i) of the Federal Courts Rules, SOR/98-106 (the Rules). On September 15, 2014, the defendants filed their statement of defence and on September 30, 2014, the Minister filed his reply.

19     In their statement of defence, the defendants admit that they made false representations on their applications and that they were not present in Canada the number of days stated in their Canadian citizenship applications. It is difficult to follow their reasoning when they try to justify their actions since they state that they were not informed of the need to be physically present in Canada while at the same time claiming that they were informed of that requirement by an officer of the Canadian Border Services Agency in December 2002, and thus they then decided to reside in Canada.

20     The defendants allege that they were scammed by their immigration consultant, they made their representations in good faith, they are innocent even if they made false or misleading representations and that the parents and particularly the minor children did not intend to deceive the Minister. The defendants even contend that the Minister himself is responsible for their actions since his lax border controls encourage applicants for Canadian citizenship to commit fraud.

21     On October 28, 2014, the defendants filed an affidavit of documents under Rule 223 and on November 3, 2014, the Minister filed an affidavit of documents under the same rule.

22     However, the defendants did not file any affidavit to establish the facts within their personal knowledge.

III. ISSUE

23     The Court must determine whether this case raises a genuine issue for trial or, on the contrary, whether it may find that a genuine issue for trial has not been raised and consequently grant summary judgment.

IV. LEGISLATIVE FRAMEWORK

·       A. 

Loss of Citizenship 

24     Subsection 10(1) of the Citizenship Act provides that "where the Governor in Council, on a report from the Minister, is satisfied that any person has obtained ... citizenship ... by false representation or fraud or by knowingly concealing material circumstances", the person ceases to be a citizen (paragraph 10(1)(a), subject to section 18 of this Act.

25     Subsection 18(1) of the Citizenship Act provides, however, that the Minister shall not make a report under section 10 unless the Minister has given notice of his intention to do so to the person in respect of whom the report is to be made and (a) that person does not within thirty days after the day on which the notice is sent, request that the Minister refer the case to the Court; or (b) that the person does so request and the Court decides that there has been false representation or fraud or knowing concealment of material circumstances.

26     The referral set out in subsection 18(1) of the Citizenship Act has been deemed "essentially an investigative proceeding used to collect evidence of facts surrounding the acquisition of citizenship, so as to determine whether it was obtained by fraudulent means" (Canada (Minister of Citizenship and Immigration) v Obodzinsky, 2002 FCA 518, at para 15).

27     Thus, as Justice Mactavish stated, "[t]he task for the Court in a proceeding such as this is to make factual findings as to whether the defendants obtained their Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances. Findings made by this Court under paragraph 18(1)(b) of the Citizenship Act are final, and cannot be appealed." (Canada (Minister of Citizenship and Immigration) v Houchaine, 2014 FC 342 at para 12).

28     The Court's findings may form the basis of a report submitted by the Minister to the Governor in Council for the revocation of citizenship.

29     The burden is on the Minister to demonstrate, on the balance of probabilities, that the defendants obtained their Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances (Canada (Minister of Citizenship and Immigration) v Skomatchuk, 2006 FC 994 at para 21).

30     The Court has established certain principles in that regard. Thus, citizenship applicants must have intended to mislead the decision-maker so that a technical error made innocently or inadvertently does not result in a declaration under section 10 (Canada (Minister of Citizenship and Immigration) v Savic, 2014 FC 523 at para 74).

31     The Court has also established that "'willfull blindness', when practised by an applicant for Canadian citizenship in the pursuit of his or her application, is not to be condoned. ...In those circumstances, the applicant for Canadian citizenship, when faced with a situation of doubt, should invariably err on the side of full disclosure to a citizenship judge or citizenship official." (Canada (Minister of Citizenship and Immigration) v Phan, 2003 FC 1194 at para 33).

32     Last, in situation where a parent signs the application for a minor child, the Court has confirmed that, since the Citizenship Act permits a parent to make a citizenship application on behalf of their minor child, any allegation of false representations or fraud or knowing concealment of material circumstances must pertain to the acts or omissions of the parent and thus, the child does not have to intend to mislead the decision-maker (Canada (Minister of Citizenship and Immigration) v Zakaria, 2014 FC 864 at para 84).

·       B. 

Summary Judgment 

33     Rule 215 of the Federal Court Rules states that the Court shall grant a summary judgment if on a motion for summary judgment the Court is satisfied that there is no genuine issue for trial with respect to a claim or defence. There is no genuine issue for trial when the summary judgment proceeding "(1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result." (Hryniak v Mauldin, 2014 SCC 7 at para 49).

34     In that type of proceeding, it is well settled that the "defendant must put its 'best foot forward' and this requires that the defendant lead evidence and make an argument that there is a genuine issue requiring a trial." (Moroccanoil Israel Ltd v Lipton, 2013 FC 667 at para 10).

V. ANALYSIS

35     The defendants admit that they made false representations in their citizenship applications and the Minister submitted the documents needed to support his claims.

36     The Court reviewed the documents on the record and is satisfied that the Minister met his burden and that the defendants made false representations. Indeed, they failed to declare material facts, specifically that for all intents and purposes they were absent from Canada from July 2001 to July 2003, that the children were absent from Canada for periods of six months or more and that the family members did not live at the home address provided from July 2001 to July 2003. The copies of the children's school records were probative here since they confirm that the children went to school in Lebanon until the end of the 2003 school year.

37     The defendants chose not to adduce affidavit evidence to support their arguments. They have no obligation under the Rules to adduce such affidavits; however, failure to do so considerably limits their evidence and their submissions. Indeed, filing an affidavit makes it possible to establish the facts that a party relies upon in its representations (Palmar Inc v Canada, (1998), 98 GTC 6281 at para 4 (FCTD)) and in a summary judgment matter, the Court weighs the evidence contained in the affidavits to determine if there is a genuine issue for trial (0871768 BC Ltd v Aestival (Vessel), 2014 FC 1047 at para 55).

38     The defendants also submitted that they would like a trial in order to be able to adduce the evidence to support their defence. As mentioned above, they had to make their best arguments in relation to this motion for summary judgment in order to prove that there is a genuine issue for trial, and thus, the Court cannot agree with their position.

39     Since they chose not to submit affidavits, the defendants did not adduce evidence to support their arguments, particularly evidence of their understanding of whether there was a need to be physically present in Canada during the period from July 2001 to July 2003. Moreover, it should be recalled that they admitted in their statement of defence that they made false representations in their citizenship applications and they reiterated those admissions before the Court during the hearing.

40     Both in their statement of defence and before the Court, they tried to claim that they were misled and confused in their interpretation of the residency requirements for granting citizenship.

41     On the contrary, the Court is satisfied that the defendants' false representations and factual omissions are not innocent and that if they had been in doubt, they should have disclosed all the information about their situation in their citizenship applications.

42     Last, as mentioned above, the Court finds that any allegation of false representations or fraud or knowing concealment of material circumstances must pertain to the acts or omissions of the parent acting on behalf of their children, and thus, the children do not have to have intended to mislead the decision-maker

JUDGMENT

·       THIS COURT ORDERS AND ADJUDGES that:

·       1. 

Each of the defendants, Jihad Achkar, Marie Sassine, Youmna Achkar, Yasmina Achkar, Anis Achkar and Iyad Achkar obtained citizenship under this Act by false representation or fraud or by knowingly concealing material circumstances within the meaning of paragraph 18(1)(b) of the Citizenship Act, RSC 1985, c C-29;- 

·       2. 

The plaintiff is entitled to costs based on the upper end of Column V of Tariff B to the Federal Courts Rules, SOR/98-106 . 

CITIZENSHIP JUDGE SHOULD HAVE CALCULATED DAYS OF RESIDENCY, FEDERAL COURT RULES

Citizenship Judges can choose to evaluate an applicant for citizenship under three possible tests. However, they must clearly enunciate the test used, and when doing so, they must apply it correctly, In this case, the judge failed to calculate the days of residency after he concluded that the strict physical presence test was the one he preferred to use.

Hussein v. Canada (Minister of Citizenship and Immigration)

Between
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.

(27 paras.)

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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:

·        5. 

(1) The Minister shall grant citizenship to any person who 

·        (a) 

makes application for citizenship; 

·        (b) 

is eighteen years of age or over; 

·        (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: 

·        (i) 

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 

·        (ii) 

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: 

·        a) 

en fait la demande; 

·        b) 

est âgée d'au moins dix-huit ans; 

·        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: 

·        (i) 

un demi-jour pour chaque jour de résidence au Canada avant son admission à titre de résident permanent, 

·        (ii) 

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.

CITIZENSHIP DECISION LACKED CLARITY, GRANT OVERTURNED

The question of citizenship decisions and how they are reached by Citizenship judges refuses to go away. In the case below, the government appealed a decision granting citizenship to someone who may not have been in Canada for the required minimum period of time, but the Citizenship judge relied on his apparent establishment without providing adequate reasons. This situation will continue unsettled, much to the chagrin of the Federal Court, until the new Citizenship Act sections dealing with physical presence are enforced. It is unclear why they have not come into force already.

Canada (Minister of Citizenship and Immigration) v. Ahmad

Between
The Minister of Citizenship and Immigration, Applicant, and
Yousef Mustafa Bani Ahmad, Respondent

[2014] F.C.J. No. 1095

2014 FC 898

Docket: T-2019-13

 Federal Court
Toronto, Ontario

LeBlanc J.

Heard: August 25, 2014.
Judgment: September 18, 2014.

(36 paras.)

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JUDGMENT AND REASONS

1     LeBLANC J.:-- This case is an appeal by the Minister of Citizenship and Immigration (the Minister) under subsection 14(5) of the Citizenship Act, RSC, 1985, c C-29 (the Act) and section 21 of the Federal Courts Act, RSC 1985, c C-7, of a decision of a Citizenship judge approving the respondent's application for Canadian citizenship.

I. Background

2     Mr. Bani-Ahmad is a national of Jordan. He arrived in Canada in 1999 and became a permanent resident in October, 2006, following a positive inland application for Humanitarian and Compassionate grounds under the Immigration and Refugee Protection Act (SC 2001, c 27).

3     On July 11, 2009, he submitted an application for Canadian citizenship. Therefore, the relevant four year period for the purposes of the residency requirement Mr. Bani-Ahmad had to meet as a condition for being granted Canadian citizenship was July 11, 2005 to July 11, 2009.

4     In the citizenship application and subsequent Citizenship Questionnaire he was asked to complete, Mr. Bani-Ahmad declared three absences from Canada during that four year period. In the course of processing of his citizenship application, Mr. Bani-Ahmad was asked to provide documents to demonstrate that he met the residency requirement but he failed to do so.

5     His citizenship application was eventually referred to a Citizenship judge for a hearing that was held on September 30, 2013. After reviewing the record before him, the Citizenship judge requested translation of a foreign language stamp in Mr. Bani-Ahmad's passport and reserved his final decision for the outcome of the translation.

6     On October 15, 2013, the Citizenship judge approved Mr. Bani-Ahmad's application. In a rather short decision, the Citizenship judge listed factors which appear to have been considered in reaching his decision. The Citizenship judge first stated that Mr. Bani-Ahmad had less than 1095 days of physical presence in Canada as required by paragraph 5(1)(c) of the Act "because he applied too soon for Citizenship". He then indicated that Mr. Bani-Ahmad was in Canada since 1999, that his passport corroborated his testimony, that three of his children were born in Canada, that he owned a restaurant and a house in Toronto, that the restaurant was the only source of income for he and his family and that some members of his family (brothers, sister and mother) were in Canada.

7     Under the heading "Decision", the Citizenship judge wrote the following:

·        Considering all of the above, and based on my careful assessment of the applicant's testimony, as well as my consideration of the information and evidence before me, I am satisfied that the applicant was actually living and was physically present in Canada on the number of days sufficient to comply with the Citizenship Act. 

8     The Minister claims that this decision must be quashed for two reasons. First, the Minister contends that the Citizenship judge failed to identify which of the three residency tests was used, resulting in his decision not meeting the test of clarity, precision and intelligibility established in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190. Second, the Minister submits, in the alternative, that the impugned decision is unreasonable as the Citizenship judge reached conclusions about Mr. Bani-Ahmad's ties to Canada that are not supported by the evidence.

II. Issue and Standard of Review

9     The sole issue to be resolved in this case is whether the impugned decision warrants intervention by this Court. In order to answer that question I have applied the standard of reasonableness which is the standard of review applicable in citizenship appeals dealing with the residency requirement.

10     It is indeed generally accepted in this Court's jurisprudence "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).

11     There is no dispute between the parties that the standard of review applicable to the present appeal is the standard of reasonableness.

III. Analysis

·        A. 

The Legal Principles Applicable to the Citizenship Residency Requirement

12     Paragraph 5(1)(c) of the Act provides for the residency requirements citizenship applicants need to meet in order to be successful with their application. It reads as follows:

·        Citizenship Act, RSC 1985, c C-29 

·        Grant of citizenship

·        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: 

·        (i) 

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 

·        (ii) 

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; 

* * *

·        Loi sur la citoyenneté (LRC (1985), ch C-29) 

·        Attribution de la citoyenneté

·        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 : 

·        (i) 

un demi-jour pour chaque jour de résidence au Canada avant son admission à titre de résident permanent, 

·        (ii) 

un jour pour chaque jour de résidence au Canada après son admission à titre de résident permanent; 

13     There is an ongoing debate within this Court as to what paragraph 5(1)(c) of the Act means exactly. Competing views have emerged from that debate with the result that 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, [2013] F.C.J. No. 629 (QL), at paras 17 and 18).

14     The first test involves the strict counting of days of physical presence in Canada which must total 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)).

15     The second test is less stringent. It recognizes that a person can be resident in Canada, even while temporarily absent, if there remains a strong attachment to Canada. This test is generally known as the Re Papadogiorgakis test (Re Papadogiorgakis, [1978] 2 FC 208, [1978] F.C.J. No. 31 (QL)).

16     The third test builds on the second one by defining residence as the place where one has centralized his or her mode of living. It is described in the jurisprudence as the Koo test (Re Koo, 59 FTR 27, [1992] F.C.J. No. 1107 (QL); see also Paez v Canada (Minister of Citizenship and Immigration) 2008 FC 204 at para 13, Sinanan, above at paras 6 to 8; Huang, above at paras 37 to 40).

17     The last two tests are often referred to as qualitative tests (Huang, above at para 17).

18     The dominant view in the case law is that Citizenship judges are entitled to choose which test they desire to use among these three tests and that they cannot be faulted for choosing one over the other (Pourzand v Canada (Minister of Citizenship and Immigration) 2008 FC 395 at para 16; Xu v Canada (Minister of Citizenship and Immigration) 2005 FC 700 at paras 15 and 16; Rizvi v Canada (Minister of Citizenship and Immigration) 2005 FC 1641 at para 12).

19     However, they can be faulted if they fail to articulate which residency test was applied in a given case (Dina v Canada (Minister of Citizenship and Immigration) 2013 FC 712, 435 FTR 184, at para 8).

20     This is, in my view, what happened in this case. For the reasons that follow, this is fatal to the Citizenship judge's decision.

·        B. 

The Citizenship Judge's Failure to Articulate Expressly or Impliedly the Residency Test

21     It is undisputed that the Citizenship judge did not expressly state or articulate which of the three residency tests was used in his assessment of Mr. Bani-Ahmad's citizenship application.

22     Mr. Bani-Ahmad asserts that since the Supreme Court of Canada's judgment in Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708, deference is owed to administrative decision makers, even if the reasons given in support of findings are not entirely adequate. As a result, he says the Citizenship judge was under no obligation to expressly identify the test applied.

23     Mr. Bani-Ahmad further submits that it appears clear from the impugned decision, when read as a whole, that the test applied was the one set out in Koo, above, and that, as a result, the decision possesses the qualities of clarity, transparency and intelligibility required by the case law.

24     It is true that administrative decision makers are owed deference even where the reasons supporting a finding are not entirely adequate. However, Newfoundland Nurses, above, still requires reasons for decisions to be intelligible enough to allow the reviewing court to understand why and how the decision maker reached his or her conclusion and to permit it to determine whether the conclusion reached by the decision-maker falls within the range of possible outcomes (Newfoundland Nurses, at para 16).

25     As I have indicated previously, the case law, as it stands now, allows Citizenship judges to choose which of the three residency tests they will apply in any given case. In such singular circumstances, which are less than optimal from the standpoint of ensuring consistency and certainty of the law, the least that can be expected from Citizenship judges is that they articulate as clearly as possible, in each and every case, which test was chosen to assess the Act's residency requirement. In this context, this requirement, in my view, is vital in order to allow this Court to understand why a Citizenship judge made his or her finding on the residency requirement.

26     As the Minister points out in his written submissions, the dominant view within this Court is that in order to be clear, precise and intelligible, reasons for decisions in the citizenship context must, at the very least, indicate which residency test was used and why that test was met or not (Canada v Jeizan 2010 FC 323, 386 FTR 1, at para 17-18; Dina v Canada (Minister of Citizenship and Immigration) 2013 FC 712, 435 FTR 184 at para 8; Canada (Minister of Citizenship and Immigration) v Al-Showaiter, 2012 FC 12, at para 21, Canada (Minister of Citizenship and Immigration) v Baron, 2011 FC 480, 388 FTR 261, at para 13-18, Canada (Minister of Citizenship and Immigration) v Saad, 2011 FC 1508, 404 FTR 9, at paras 18-24).

27     This view has prevailed in the post-Newfoundland Nurses jurisprudence of this Court (Canada (Minister of Citizenship and Immigration) v Abdallah, 2012 FC 985, 417 FTR 13 and Canada (Minister of Citizenship and Immigration) v Raphaël, 2012 FC 1039, 417 FTR 177).

28     Here, the Citizenship judge did not refer to any of the three tests in his reasons for decision. It is not possible either to infer from his reasons which test he may have applied. In fact, the Citizenship judge made a number of findings that are impossible to comprehensively and reasonably associate with one of the three tests. These findings read as it follows:

·        * 

The applicant as less day of physical presence in Canada (1088) only because he applied too soon for Citizenship after being landed. However, he is in Canada since 1999. 

·        * 

A throughout examination of the relevant passport confirms what stated by the applicant about his physical presence but I asked for a professional translation because there is one foreign language stamp. (I personally photocopied all and only the stamped pages of the relevant passport -- see attached) 

·        * 

The applicant is married with four children (three of them born in Canada). 

·        * 

The applicant is the owner of a restaurant in downtown Toronto. 

·        * 

He is married and they own the house where they live. 

·        * 

He has the profit from the restaurant as the only source of income for the family. 

·        * 

His five brothers, the sister and his mother are all established in Canada. 

29     It follows that it is not possible to determine with any degree of precision the residency test in relation to which these findings were applied. In particular, when it comes to the findings related to Mr. Bani-Ahmad's ties to Canada, it is not possible to discern in relation to which of the two qualitative tests, that is the Papadogiorgakis test or the Koo test, these findings would have been made.

30     Furthermore, the reasons for decision are irreconcilable with each other. On the one hand, the Citizenship judge noted that Mr. Bani-Ahmad was short of the 1095 days of physical presence required by paragraph 5(1)(c) of the Act. On the other hand, he approved Mr. Bani-Ahmad's citizenship application on the basis that he was satisfied that Mr. Bani-Ahmad "was actually living and was physically present in Canada on the number of days sufficient to comply with the Citizenship Act".

31     As the Minister points out, these statements, when read in isolation, might indicate that the Citizenship judge applied the physical presence test. However, the Citizenship judge could not possibly have applied that test given that Mr. Bani-Ahmad had not accumulated the threshold number of days of physical presence in Canada. If he did, then his decision falls squarely outside the range of possible outcomes, as required by Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190.

32     In sum, since it is impossible to identify which test was used, it is impossible for this Court to understand why and how the Citizenship judge reached his conclusion and to determine whether that conclusion falls within the range of possible outcomes.

33     This is a clear case of a decision lacking in clarity, transparency and intelligibility. For that reason alone, the impugned decision is unreasonable and must be set aside. It is therefore not necessary to examine the other ground of appeal raised by the Minister.

34     The Minister is seeking that the appeal be granted and that Mr. Bani-Ahmad's citizenship application be re-determined by a different Citizenship judge. This would presumably avoid Mr. Bani Ahmad to have to re-apply for Canadian citizenship, at least for the time being.

35     The appeal will be granted accordingly.

36     The Minister is not claiming his costs.

JUDGMENT

·        THIS COURT'S JUDGMENT is that: 

·        1. 

The appeal is granted; 

·        2. 

The Respondent' citizenship application is remitted for re-determination by a different Citizenship judge; and 

·        3. 

The whole without costs. 

LeBLANC J.