Date: 20060116
Docket: T-983-05
Citation: 2006 FC 32
Toronto, Ontario, January 16, 2006
PRESENT: THE HONOURABLE MR. JUSTICE VON FINCKENSTEIN
BETWEEN:
MOHAMED SAID MAHIOUT and
SADIA GUETTOUCHE
Applicants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an appeal, pursuant to section 14(5) of the Citizenship Act, R.S.C. 1985 c. C-29 (the "Act"), of the April 11, 2005 decision of Citizenship Judge Gleason (the "Judge") denying Mohamed Said Mahiout and his wife, Sadia Guettouche, (the "Applicants") Canadian Citizenship as they had not fulfilled the residency requirement pursuant to section 5(1)(c) of the Act.
[2] Section 5(1)(c) of the Act states that a citizenship applicant must accumulate at least three years of residence in Canada within the four years preceding the citizenship application. This amounts to 1095 days. The time that an applicant lives in Canada before becoming a permanent resident counts as half time (ie. two days count as one day towards the requisite 1095 days).
MOHAMED SAID MAHIOUT
[3] Mr. Mahiout was born in Algeria. He came to Canada on November 14, 1998 to obtain a Master of Earth Sciences at the Université du Québec in Chicoutimi, Quebec. Upon graduation, he obtained employment with Schlumberger. On August 29, 2000 (four months after graduation), he and his wife became Canadian permanent residents.
[4] On February 3, 2001, Mr. Mahiout was transferred to Brazil, he was transferred to Oman on June 11, 2001, and he was then transferred to Iran on January 10, 2003. Mr. Mahiout was transferred back to Alberta and arrived in Canada on August 4, 2005.
[5] He states that his desire to make Canada his home is shown by his bank accounts being in Canada. Furthermore, with the exception of a 15-day visit to his mother in Algeria, he has not spent any additional time in other countries other than for employment purposes, and he has returned to Canada during his time off from overseas employment.
[6] It is conceded that the Judge did not correctly state the number of days the Applicant had been absent from Canada. An examination of the record reveals that he had 430 days towards the required 1095 days.
SADIA GUETTOUCHE
[7] Ms. Guettouche was also born in Algeria and graduated from the University of Algiers. She and Mr. Mahiout were married in Algeria and she remained in Algeria while her husband was studying in Quebec. She arrived in Canada on August 29, 2000 as a permanent resident. Shortly after this, she accompanied her husband to Brazil and Oman. She came back to Calgary briefly in order to give birth to her daughter in April, 2003. She also lived with her husband while he was working in Iran until she became pregnant and returned to Calgary in July, 2004.
[8] The Judge, upon noting that Mr. Mahiout and Ms. Guettouche were both 826 days short of the required minimum of 1095 days set out in s. 5 of the Act, applied the six factor test set out in Koo (Re), [1993] 1 F.C. 286. Upon considering the six factors, she concluded neither Applicant had centralized their life in Canada and therefore found them ineligible for citizenship.
STANDARD OF REVIEW
[9] From the jurisprudence, it is clear that the standard of review regarding residency requirements in citizenship cases is reasonableness simpliciter. (Zeng v. Canada (Minister of Citizenship and Immigration), 2004 FC 1752; Rasaei v. Canada(Minister of Citizenship and Immigration), 2004 FC 1688; and Canada (Minister of Citizenship and Immigration) v. Fu, 2004 FC 60).
ISSUE
[10] Was it reasonable for the Judge to deny citizenship due to the Applicants' failure to meet the residency requirements of s. 5(1)(c) of the Act?
ANALYSIS
[11] Given that neither Applicant meets the residency requirement by the strict counting of days, the issue needs to be decided on the centrality of life test as set out in numerous decisions of this court, particularly in Koo, supra.
[12] Paragraph 10 of Koo, supra states:
The conclusion I draw from the jurisprudence is that the test is whether it can be said that Canada is the place where the applicant "regularly, normally or customarily lives". Another formulation of the same test is whether Canada is the country in which he or she has centralized his or her mode of existence. Questions that can be asked which assist in such a determination are:
(1) was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship?
(2) where are the applicant's immediate family and dependents (and extended family) resident?
(3) does the pattern of physical presence in Canada indicate a returning home or merely visiting the country?
(4) what is the extent of the physical absences -- if an applicant is only a few days short of the 1,095-day total it is easier to find deemed residence than if those absences are extensive?
(5) is the physical absence caused by a clearly temporary situation such as employment as a missionary abroad, following a course of study abroad as a student, accepting temporary employment abroad, accompanying a spouse who has accepted employment abroad?
(6) what is the quality of the connection with Canada: is it more substantial than that which exists with any other country?
[13] The Applicants argue that the Judge came to an unreasonable decision for the following reasons:
a) she miscounted the days for Mr. Mahiout;
b) she erred in describing the Applicant's relatives as it is Ms. Guettouche's relatives that live in Montreal, and not those of Mr. Mahiout;
c) she did not give sufficient weight to the fact that Mr. Mahiout's employer of record was based in Calgary, and his entire salary was sent to his bank in Calgary, Alberta;
d) she did not give sufficient weight to the fact that Mr. Mahiout spent only 15 days and Ms. Guettouche spent 60 days in their native country since coming to Canada;
e) she did not consider the fact that the Applicants had returning resident permits when considering question 5 of the Koo test; and
f) she failed to specify under question 6 of the Koo test to which country the
Applicants had a more substantial connection.
[14] The six points set out in Koo, supra are not an iron framework that must be followed but rather, as Justice Reed suggests, they are questions that may assist in the determination of the centrality of life. In this case, the Judge came to the view that the centrality of the Applicant's life was not in Canada.
[15] Points a) and b) as advanced by the Applicants are immaterial and do not advance their case. Points c) and d) involve reweighing of the evidence. That is not the function of this Court in appeals on the record (see Canada (Minister of Citizenship and Immigration) v. Mindich (1999), 170 F.T.R. 148 at para 7). The Citizenship Court, as a specialized tribunal, ought to be accorded a certain deference given its special expertise. I can see no compelling reason requiring my interference on these two points.
[16] With respect to points e) and f), the Applicants rely on the judgement of Rouleau J. in Collier v. Canada(Minister of Citizenship and Immigration), 2005 FC 1511 particularly at paragraphs 11 and 18 which provide:
For the purposes of residency, days spent outside of Canada on a retuning resident permit are not considered days outside of Canada for the purposes of the residency requirement under s. 28 of the Immigration and Refugee Protection Act. Although the returning resident permits have no de jure application in relation to Citizenship applications, I see no reason why the returning resident permit cannot be considered a de facto factor in the nature of the absences...
...
The Citizenship Judge, in the instant matter, found that the applicant had a more substantial connection to her career as a professional volleyball player than she had to Canada. The applicant's career is a valid consideration under the fifth Koo factor with respect to the nature of her absences, but her career is not a relevant factor in assessing substantial connection. As Madam Justice Reed noted in Koo, the applicant must demonstrate a more substantial connection to Canada that to any other country/place. In the present matter, the Citizenship Judge committed an overriding error in assessing the applicant's connection to her career as compared to her connection to Canada; the Citizenship Judge did not identify an index country.
[17] As far as the returning residency permit is concerned, Rouleau J. points out that it may be taken into consideration, but I do not see him stating that it must be taken into consideration. Here, the Judge quite reasonably noted that at the time of the hearing Mr. Mahiout's return to Calgary was only speculative, and that he continued to work outside of Canada for Schlumberger. The fact that he had a returning resident permit does not change that finding.
[18] As far as the failure to name an index country is concerned, this observation must be understood in the context of Collier, supra. There, the Citizenship Judge found that the Applicant had a more substantial connection to her sport than to Canada. Rouleau J. found this to be a reversible error and I quite agree that attachment to a sport is not relevant to determining whether the applicant's centrality of life is in Canada. However, here the Judge made no such comparison, and she merely noted that none of the evidence provided by the Applicants satisfied the central question of whether their lives had centralized in Canada.
[19] Accordingly, I find there is nothing in the Citizenship Judge's decision that is unreasonable and therefore this application cannot succeed. That being said, I cannot refrain from noting that the Applicants' situation have changed since the application before the Citizenship Judge was heard. Mr. Mahiout has since been transferred back to Calgary, Ms. Guettouche has given birth to twins in Canada, and they have lived in Calgary since August, 2005. There is thus a very good expectation that a renewed application for citizenship would be successful.
ORDER
THIS COURT ORDERS that this appeal be dismissed.
"K. von Finckenstein"
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