Canada (Minister of Citizenship and Immigration) v. Simakov, 2003 FCT 173

Date: 20030214

Docket: T-2120-00

Neutral citation: 2003 FCT 173

Ottawa, Ontario, this 14^th day of February, 2003

Present:           THE HONOURABLE MADAM JUSTICE SNIDER

BETWEEN:

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Applicant

and

ALEXEI SIMAKOV

Respondent

                                               REASONS FOR ORDER AND ORDER

Background

[1]                 The Alexei Simakov (the "Respondent") is a citizen of Russia who entered Canada with his wife and daughter on August 24, 1990 and successfully claimed Convention refugee status. The Respondent separated from his wife in 1996 and moved into the home of his cousin, Danilenkov Rouslan in Richmond Hill, Ontario.

[2]                 The Respondent became a permanent resident on January 23, 1996. He applied for Canadian citizenship on November 26, 1999.

[3]                 In his application form, the Respondent declared that he had been absent from Canada for a total of 576 days in the four years preceding his application because of business in Russia and one vacation.

[4]                 On September 12, 2000, the Respondent was interviewed by the Citizenship Judge and his application for citizenship was approved. The Citizenship Judge considered the case of Re Koo, [1993] 1 F.C. 286 (T.D.), and concluded as follows:

Mr. Simakov has centralized his mode of living in Canada. In his adjustment to Canada he tried different jobs and travelled to Russia on number of occasions to promote sale of automobiles (used). His family lives here and is presently employed as a sales person for an auto company. He holds a Can bank account. His connection to Canada is through his family.

[5]                 The reasons given by the Citizenship Judge in the Notice to the Minister of the Decision of the Citizenship Judge are as follows:

Mr. Simakov has centralized his living in Canada. He is presently employed, lives with his family and holds Cdn bank account. His absences were to promote the sale of used automobiles to Russia. His commitment to Canada is reflected in his relationship to family.

[6]                 The information before the Citizenship Judge included the Respondent's passport; Income Tax and Benefit Returns for 1996, 1997 and 1998; bank statements; a letter from a former employer dated August 18, 1997; the Respondent's Ontario driver's licence; his bank access card; his returning residence permit; Business Names Report for A & Y Import/Export International, dated October 8, 1996, for which the Respondent is the sole proprietor; Notices of Assessment from Revenue Canada for 1998, dated January 13, 2000; a Record of Landing, dated January 23, 1996 and a supporting letter from his daughter.

[7]                 On or about July 7, 2000 an unsigned, undated typewritten letter was received at the Case Processing Centre in Sydney concerning the citizenship application. This letter stated:

The present letter we want to notify You in following:

The person who name is ALEXEI SIMAKOV using the address: 138 Yorkland st. un. 189, Rishmond Hill, ONT. constantly broke and breaks a mode of necessary time of stay in Canada for reception of the Canadian Citizenship. So within last four years his time to being in Canada was 2-3 months in one year. Living in Russia he some times changed the passport for traveling abroad on new to hide the valid absence in Canada. Last time ALEXEI SIMAKOV was in Canada in May 2000, only to send the application on reception Canadian Citizenship. ALEXEI SIMAKOV permanently lives in city of St. Petersburg, Russia. (Produced with errors as written)

[8]                 The names "A.VESKI; T.BULANOV" were typed at the bottom of the letter, and there was a postscript stating that the Respondent's present status is that of landed immigrant. This letter became lost in the mail bin and was not actually discovered until September 20, 2000. As a result, this letter was not before the Citizenship Judge on September 12, 2000 when he interviewed the Respondent.

[9]                 In his Affidavit, the Respondent stated that Anna Veski and Tatiana Bulanov are the names of famous female Russian singers. He denies ever having met these women or having had any dealings with them. The Respondent blamed an unnamed business competitor for the letter.

Applicant's Submissions

[10]            The Applicant raised three grounds for this application for appeal.

1.         The Citizenship Judge erred in law in determining that the Respondent met the residency requirement set out in section 5(1)(c) of the Citizenship Act, R.S.C. 1985, c.c-29. The Citizenship Judge failed to address the questions set out in Re Koo.

2.         The Citizenship Judge erred in fact and law by ignoring and failing to deal with significant inconsistencies in the Respondent's Material.

3.         The Citizenship Judge was denied the opportunity to consider the additional "highly relevant" evidence that was not discovered until after the decision was rendered. The effect of this lack of opportunity was, in the Applicant's submission, a loss of jurisdiction.

Respondent's Submissions

[11]            The Respondent submitted that the Citizenship Judge did not err in fact or in law when he approved the Respondent's application for citizenship. The Citizenship Judge had the discretion to grant Canadian citizenship despite the shortfall with respect to the residence requirement (Re Koo, supra; Papadogiorgakis (In re) and in re Citizenship Act, [1978] 2 F.C. 208 (T.D.)). The circumstances of this case justify the Respondent's absences from Canada and justify the granting of Canadian citizenship.

[12]            The Respondent submitted that calling the letter "evidence" is a misnomer. The Respondent is unable to challenge the allegations contained in the letter, the motives of its unknown authors or the source of their information. The Respondent submits that by bringing an application to set aside the granting of Canadian citizenship based, for the most part, on allegations contained in an anonymous letter, rather than on firm evidence, the Applicant committed an abuse of process of such proportion as to justify the granting of an order dismissing the appeal.

Relevant Statutory Provisions and Regulations

[13]            Subsection 5(1) of the Citizenship Act sets out the criteria for the granting of Canadian citizenship. Paragraph 5(1)(c) is at issue in this case:

Analysis

[14]            For the reasons that follow, I am of the view that this appeal should be allowed.

Issue #1: Should the decision of the Citizenship Judge approving the Respondent's application for Canadian citizenship be set aside as the Respondent failed to meet the residency requirement set out in section 5(1)(c) of the Citizenship Act?

[15]            The appropriate standard of review of a decision of a Citizenship Judge was set out by Lutfy J., as he then was, in Lam v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 410 at paragraph 33 (T.D.)(QL):

Justice and fairness, both for the citizenship applicants and the Minister, require some continuity with respect to the standard of review while the current Act is still in force and despite the end of the de novo trials. The appropriate standard, in these circumstances, is one close to the correctness end of the spectrum. However, where citizenship judges, in clear reasons which demonstrate an understanding of the case law, properly decide that the facts satisfy their view of the statutory test in paragraph 5(1)(c), the reviewing judges ought not to substitute arbitrarily their different opinion of the residency requirement. It is to this extent that some deference is owed to the special knowledge and experience of the citizenship judge during this period of transition.

[16]            The Citizenship Judge may adopt and apply whichever residency test that he or she chooses. It is the duty of the Federal Court to verify that the Citizenship Judge has properly applied the test of his or her choosing. (Canada (Minister of Citizenship and Immigration) v. Mindich, [1999] F.C.J. No. 978 at para. 9 (T.D.) (QL); see also Wu, supra; So v. Canada (Minister of Citizenship & Immigration), [2001] F.C.J. No. 1232 at para. 29 (T.D.) (QL)).

[17]            The Citizenship Judge in this case applied the centralized existence test using the factors set out by Reed J. in Re Koo. In Re Koo, at pages 293 and 294, Reed J. set out a list of six factors which point to sufficient attachment to Canada so as to allow for the granting of citizenship, even where the required minimum number of days has not been met:

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 dependants (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?

[18]            Formal indicia of connection to Canada, such as a driver's licence, bank accounts, and membership cards, will not be sufficient on their own to establish a centralized mode of existence in Canada. Rather, the quality of the Respondent's connection to Canada must indicate that he regularly, normally and customarily resides in this country.

[19]            The Respondent has a number of the formal indicia of residence in Canada: an Ontario driver's licence, a Canadian bank account, car insurance through a Canadian company, and Income Tax and Benefit Returns filed for 1996, 1997 and 1998. In addition, the Respondent has been employed in Canada, is the sole proprietor of an Ontario business, rents an apartment in Richmond Hill and has an adult daughter living in Toronto.

[20]            The evidence regarding the Respondent's employment, operation of the sole proprietorship and payment of rent for the apartment is inconsistent. The Respondent did not claim any employment or business income on his Income Tax and Benefit Returns for 1997 and 1998. Although the Respondent has made numerous trips to Russia, apparently for the purposes of promoting his business which involves the sale of used cars, the only evidence of that business is the Business Names Report, located at pages 18 and 25 of the Certified Tribunal Record. I have doubts about the existence of this business, and, in turn, doubts about the nature of the Respondent's numerous trips to Russia. In addition, aside from the Income Tax and Benefit Return for 1996, the Respondent has not declared rental payments that he purportedly made for the Richmond Hill apartment. Finally, the February 2000 monthly statement for his U.S. Dollar Account with Canada Trust appears questionable. The balance in that account is minimal, $419.35, and, other than interest, there was no activity on the account during the month of February 2000. If the Respondent was running a business in Ontario, paying rent in Ontario and taking numerous business trips, I would have expected some activity on this bank account. In my view, depositing around $400 in a bank account in Canada does not suggest a substantial connection to Canada.

[21]            Furthermore, the Respondent was physically absent from Canada for a significant length of time, spending approximately 576 days in Russia on business during the four years immediately preceding his citizenship application. These business trips were lengthy, each lasting approximately 3 to 4 ½ months. In between those trips, the Respondent would spend anywhere between 10 days and 4 months in Canada. There is no indication that these business trips are temporary in nature.

[22]            When the inconsistent and suspect evidence is combined with the fact that the Respondent was physically absent from Canada for a significant amount of time, it is apparent that the Citizenship Judge misapplied the facts of this case to the centralized existence residency test. Although the Respondent has acquired many of the formal indicia of residence in Canada, the quality of his connection to this country is not such that he regularly, normally and customarily resides in Canada. Consequently, the Citizenship Judge's decision should be overturned on this ground.

Issue #2: Did the Citizenship Judge err in fact or in law when he approved the Respondent's application for citizenship?

Issue #3: Should the Court set aside the decision of the Citizenship Judge on the basis that he did not consider evidence that was available prior to the decision being rendered but not discovered until after the decision was rendered?

[23]            Given my conclusion with respect to the first issue, I do not need to consider the remaining issues.

Conclusion

[24]            In summary, this application for appeal should be allowed on the grounds that the Citizenship Judge did not demonstrate in clear reasons that he understood the case law and properly decided that the facts of this case satisfied his view of the statutory test prescribed in paragraph 5(1)(c) of the Citizenship Act.

                                                                            ORDER

IT IS HEREBY ORDERED THAT:

a) this appeal is allowed;

b) the decision of the citizenship Judge dated September 12, 2000 is set aside; and

c) the Respondent's application for citizenship is to be referred back to a different judge of the Citizenship Court for reconsideration and redetermination.

                  "Judith A. Snider"            

JUDGE

                        FEDERAL COURT OF CANADA

             Names of Counsel and Solicitors of Record

DOCKET:                                              T-2120-00

STYLE OF CAUSE:              THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

Applicant

- and -

ALEXEI SIMAKOV

Respondent

PLACE OF HEARING:                         TORONTO, ONTARIO

DATE OF HEARING:                           MONDAY, FEBRUARY 10, 2003   

REASONS FOR ORDER BY:             SNIDER J.

DATED:                                                    FRIDAY, FEBRUARY 14, 2003

APPEARANCES BY:                              Mr. Lorne McClenaghan

For the Applicant

Mr. Joseph S. Farkas

For the Respondent

SOLICITORS OF RECORD:                 Morris Rosenberg

                                                                      Deputy Attorney General of Canada

For the Applicant             

Mr. Joseph S. Farkas

Barrister and Solicitor

3089 Bathurst Street

Suite 309

Toronto, ON

M6A 2A4

For the Respondent

FEDERAL COURT OF CANADA

                                                           Date:20030210

                  Docket: T-2120-00

BETWEEN:

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Applicant

- and -

ALEXEI SIMAKOV

                                  Respondent

REASONS FOR ORDER