OTTAWA, ONTARIO, March 1, 2006
PRESENT: DEPUTY JUDGE STRAYER
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP ANDIMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of a decision of a Citizenship Judge of May 12, 2005 denying the Applicant's application for Canadian Citizenship.
Facts
[2] The Applicant was born in Bangladesh on November 15, 1969. He applied for immigration to Canada and was admitted as a permanent resident on March 25, 2000. On August 2, 2003, 1,225 days after his admission as a permanent resident, he applied for citizenship.
[3] In his application he reported absences from Canada during that period totalling 62 days. On its face this would indicate that he was present 1163 days in the 4 years preceding his application for citizenship. By paragraph 5(1)(c) of the Citizenship Act, R.S.C. 1988 c. C-29, he was only required to have been present the equivalent of 3 years or 1095 days during this period.
[4] He was then required to complete a "Residence Questionnaire" which he signed on May 11, 2004 (See tribunal record, p. 30) In it he repeated the information on the specific dates of his absences from Canada, as originally stated in his application for citizenship. With this questionnaire he provided several supporting documents, including copies of his current and expired passports and an analysis of his passport stamps which appears to support his statements as to his absences from Canada. It has not been suggested that the stamps are false or incomplete as to his movements into and out of Canada. He attached a copy of his record of landing in Canada as a permanent resident as asserted in his citizenship application. This questionnaire was forwarded to the Citizenship Court with a letter from the Applicant's counsel explaining the Applicant's circumstances such as: he had been unable to find employment in Canada; he lived at the home of his cousin; his wife and children remained in the United Arab Emirates (U.A.E) originally because she was unable to travel to Canada at the time they both had immigrant visas for Canada: on medical advice she stayed in the U.A.E. with her parents instead of accompanying him to Canada. He had visited her various times as well as his own family in Bangladesh, accounting for his absences from Canada.
[5] The Applicant was invited for an interview with the Citizenship Judge held on December 7, 2004. The only evidence of what transpired at that interview is provided by an affidavit of the Applicant which, in the absence of any cross-examination on it or any other evidence, I take as a correct description of that proceeding. The Judge asked the Applicant for the originals of the Applicant's travel documents, looked at them and returned them. He did not ask any questions about the Applicant's travel outside of Canada, lack of employment in Canada, or about his use of medical services in Canada. According to the Applicant's affidavit, no other questions were asked by the Citizenship Judge. He did ask the Applicant to furnish a document from the Ministry of Health showing his use of medical services while in Canada. This was duly provided with a letter from his solicitor of January 18, 2005.
[6] The Judge in his written decision of May 12, 2005 concluded that the Applicant did not meet the residence requirements of paragraph 5(1)(c). Although he did not specifically say so, it is clear from the context that he had concluded that the Applicant had not been resident in Canada for the required 3 years. The only reasons he gave by way of explanation were the following:
You have no income; you claim not to work in Canada and live on your savings ($11,000), money you brought with you when you became a landed immigrant in 2000. Meanwhile, you have taken 7 trips which cost approximately $1500 each. In addition, you claimed to have only been to the doctor once since coming to Canada.
Based on the information presented to me, I am not satisfied that you have physically resided in Canada during the argued period. I find that none of the information submitted were [sic] tangible proof of physical presence in Canada.
[7] The Applicant moves to have this decision set aside on the basis that: there was a denial of fairness because the Citizenship Judge did not give the Applicant notice of his concerns with the evidence so that the Applicant could respond to them; the Judge's conclusions were unreasonable as to findings of fact, failure to consider all the evidence, failure to assess the Applicant's credibility, and failure to consider whether the Applicant had centralized his life in Canada if the Judge had concluded that he had not been physically present for at least 3 years.
Issues
(1) What is the standard of review?
(2) Was there a denial of fairness?
(3) Was the decision of the Citizenship judge otherwise unreasonable?
Analysis
Standard of Review
[8] I am satisfied that the standard now applied to findings of whether a citizenship Applicant has met residence requirements, a question of mixed law and fact, is that of reasonableness simpliciter: see Huang v. the Minister of Citizenship and Immigration 2005 F.C. 861; Chen v. The Minister of Citizenship and Immigration 2004 F.C. 1693; The Minister of Citizenship and Immigration v. Mueller (2005) F.C.J. No 226, 2005 FC 227. I adopt the reasoning in those cases. Mixed with the factual issues involved here there are questions of law, in particular the requirements of procedural fairness in dealing with those facts.
Denial of Fairness?
[9] I have concluded that the Citizenship Judge denied the Applicant a fair hearing by not indicating to him what concerns the Judge had about his evidence, thus denying the Applicant the opportunity to give his response to those concerns.
[10] The whole basis of the Applicant's residency claim was simply that he had physically spent a total of more than 1095 days (3 years) in Canada in the 4 years preceding his application for citizenship. He relied on documentary evidence (passports and a permanent resident document) to demonstrate that he had complied with the residence requirements of paragraph 5 (1) (c) of the Citizenship Act. At the interview the judge asked for the documents and returned them. He asked no questions about their authenticity, nor did he ask any questions about the Applicant's trips out of Canada, his lack of employment in Canada, nor of his use of medical services here (other than to request documentation of the latter) In these circumstances the Applicant might reasonably have assumed that there were no serious issues which he must address concerning the duration of his physical residence in Canada. As a result he did not elaborate so as to anticipate and counter the negative conclusion to which the Judge came in his reasons quoted above, where he concluded that (apparently notwithstanding the Applicant's travel documents) the Applicant had not been in Canada for at least 1095 days because he
(a) had no income (this never having been proven)
(b) had no job (admitted);
(c) had lived all this time on $11,000 (never specifically asserted and never questioned)
(d) had taken 7 trips costing on average of $1,500 (who had paid for them was never questioned by the Judge).
He ended his conclusions by saying that none of the evidence was tangible proof of physical presence in Canada. This conclusion was reached without the Applicant being asked for any explanation of thedocuments which he could reasonably have assumed supported his assertions of residency. As a result the Applicant was denied a fair hearing and for that reason alone the decision of the Citizenship Judge should be set aside.
Reasonable Decision?
[11] As I have found that there was a denial of fairness it is not necessary for me to analyze all of the other claims made against the validity of this decision. Suffice it to say that I also find the decision to be unreasonable in that the Judge gave no reason understandable to the Applicant or anyone else as towhy "none of the information submitted were [sic] tangible proof of physical presence in Canada." Subsection 14 (3) requires a citizenship judge to:
forthwith notify the applicant of his decision, of the reason therefor and of the right to appeal.
In my view, the explanation given in the decision quoted above does not show the Applicant how, in the face of the documentary evidence (particularly the travel documents), which were all consistent with the Applicant's assertion, the Judge had come to the conclusion that the Applicant had not been in Canada for the whole of the period he alleged.
[12] It has been held by this Court that if such reasons are not given as required by subsection 14 (3) the decision should be set aside: see e.g. Fung v.Minister of Citizenship and Immigration [2000] F.C.J. No. 1440; Lai v. Minister of Citizenship and Immigration [2000] F.C. J. No. 1361. In the circumstances I need not address other issues of reasonableness of the decision.
[13] I invited the parties to make submissions on costs so that I could consider whether there were special reasons for awarding costs as required by Rule 22 of the Federal Immigration and Refugee Protection Rules (SOR/2002-232). While, as I have indicated, I believe the decision of the Citizenship Judge was based on an unfair procedure and unreasonable, I do not think that the way in which this matter has otherwise been dealt with provides a special reason for costs.
Disposition
[14] While the Applicant asks that I not only set aside the decision but also grant him citizenship (through a declaration, mandamus or direct appellate decision) I have concluded that I should refer the matter back to another citizenship judge for determination in accordance with these reasons. I believe there are possible issues of fact which may require further consideration, provided they are squarely raised with the Applicant and he has an opportunity to address them fully.
The decision of the Citizenship Judge of May 12, 2005 is set aside and the matter remitted to another Citizenship Judge for reconsideration and decision in accordance with these reasons
B.L. Strayer
Deputy Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1169-05
STYLE OF CAUSE: MOHAMMED NAZRUL ISLAM v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: February 13, 2006
PLACE OF HEARING: Toronto, Ontario
REASONS FOR JUDGMENT
AND JUDGMENT: Strayer D.J.
DATED: March 1, 2006
APPEARANCES BY
Mr. Matthew Jeffery FOR THE APPLICANT
Mr. Negar Hashemi FOR THE RESPONDENT
SOLICITORS OF RECORD
Mr. Matthew Jeffery
Toronto, Ontario FOR THE APPLICANT
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT