Date: 20041202
Docket: T-1088-04
Citation: 2004 FC 1688
Vancouver, British Columbia, Thursday, the 2nd day of December, 2004
Present: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
MANSOUR RASAEI
Appellant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] Mr. Mansour Rasaei, originally a citizen of Iran but working and living as a permanent resident in Singapore immediately prior to his arrival in Canada, was approved as a permanent Canadian resident on August 1, 2000, and landed in Canada on September 6, 2000.
[2] On October 6, 2003, Mr. Rasaei applied for Canadian citizenship. Despite passing the requisite citizenship test, Mr. Rasaei was denied Canadian citizenship on May 4, 2004, following his hearing before a Citizenship Judge, on the grounds that he did not meet the residency requirements set out in s. 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29, as amended (the "Act"). Mr. Rasaei appeals this decision pursuant to s. 14(5) of the Act. More specifically, Mr. Rasaei seeks an Order that the Citizenship Judge's decision be set aside and that this Court render a decision approving his application for Canadian citizenship.
ISSUES
[3] Mr. Rasaei raises the following three issues:
1. The Citizenship Judge failed to properly interpret the residency test and thereby misinterpreted s. 5(1)(c) of the Act;
2. The Citizenship Judge erred in not making a recommendation to the Minister pursuant to subsections 5(3) and (4) of the Act; and,
3. The Citizenship Judge ignored relevant evidence submitted by Mr. Rasaei to establish that he was regularly, normally and customarily living in Canada.
ANALYSIS
Standard of Review
[1] Traditionally, decisions of a Citizenship Judge had been subject to review according to a standard of correctness (Zhang v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 778, at para. 7 (T.D.)). However, in a more recent decision of the Federal Court (Canada (Minister of Citizenship and Immigration) v. Fu, 2004 FC 60, at para. 6, 7), Justice Tremblay-Lamer has suggested that the reasonableness simpliciter standard is more appropriate since the question of whether a person has met the residency requirement under the Act is a question of mixed fact and law, and that Citizenship Judges are owed some deference by virtue of their special degree of knowledge and experience. I accept this as an appropriate standard of review. Accordingly, as long as there is a demonstrated understanding of the case law and appreciation of the facts and their application to the statutory test, deference should be shown.
Issue 1: Did the Citizenship Judge fail to properly interpret the residency test and thereby misinterpreted s. 5(1)(c) of the Act?
[2] Mr. Rasaei submits that the intention to maintain Canada as one's country of residence is important but not determinative. He asserts that, where a person has been physically absent from Canada, the time absent may count toward residency regardless as long as he or she has first established residence in Canada before the absence and has continued his or her residence in Canada while he or she is abroad (Re:Papadogiorgakis [1978] 2 F.C. 208 (F.C.T.D.), 88 D.L.R. (3d) 243, Ahmad v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1067, and Re: Sun (1992), 58 F.T.R. 264 (F.C.T.D.)).
[3] Mr. Rasaei also notes that the Federal Court has previously indicated that an actual presence in Canada throughout the specified statutory period is not a prerequisite to meeting the residence requirement (Re: Banerjee, [1994] F.C.J. No. 1360).
[4] Mr. Rasaei submits that the Citizenship Judge erred in simply counting the days he was absent, rather than inquiring into the reasons why he was absent. Had such a purposive investigation been undertaken, Mr. Rasaei is of the opinion that the period during which he was absent (for about 521 days through all of 2002 and parts of 2001 and 2003) would not have counted against him in its entirety.
[5] Paragraph 5(1)(c) of the Act sets out three criteria that an applicant for citizenship must satisfy. These are:
(a) lawful admission to Canada for permanent residence;
(b) retention of permanent residence status; and,
(c) the accumulation of at least three years' residence in Canada within a four year period immediately preceding the date of the application, as calculated under the prescribed formula set out under the paragraph.
[6] All applicants for citizenship must satisfy the three criteria set out in paragraph 5(1)(c) of the Act. Only the third criterion is in issue in this case.
[7] In assessing Mr. Rasaei's application, the Citizenship Judge relied on the decision of Re:Koo [1993] 1 F.C. 186, (1992), 19 Imm. L.R. (2d) 1 (T.D.). In that case, Justice Reed formulated six factors to assist in determining whether Canada is the country where an applicant for citizenship "regularly, normally or customarily lives" or whether Canada is the country in which the applicant has "centralized his or her mode of existence". The six factors to be addressed are as follows:
(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?
[8] In this case, I am satisfied that the six Koo factors were assessed with due regard to the evidence before him. The Judge provided a detailed refusal letter that surveyed the entirety of Mr. Rasaei's application for Canadian citizenship, as it pertained to the issue of residency. In addition to the shortfall of 508 days, he noted Mr. Rasaei's indicia of residence in Canada, the nature of his employment in the United States, the existence of family in Iran and the severing of ties with Singapore. In short, based on the evidence before him, the Citizenship Judge provided an accurate application of the evidence to the factors in determining residency. His conclusion that Mr. Rasaei had not centralized his life in Canada is not unreasonable.
[9] Mr. Rasaei would have this Court re-weigh the evidence to come to a different conclusion; that is not the role of the Court.
Issue 2: Did the Citizenship Judge err in not making a recommendation to the Minister pursuant to subsections 5(3) and (4) of the Act?
[10] Mr. Rasaei submits that he has faced great difficulty as a landed immigrant in finding employment in his chosen profession in Canada. This inability to procure employment is the main reason why he had to live outside Canada for a lengthy period (and, indeed, seems to continue to have to do so upon occasion). Despite this explanation, the Citizenship Judge did not consider the hardship created by the lack of Canadian citizenship as a reasonable cause to exercise discretion and recommend to the Minister that Mr. Rasaei be granted Canadian citizenship despite his non-fulfilment of the residency requirement.
[11] This issue is truly a sub-issue of the first issue. The necessary analysis in determining whether a recommendation should be made to grant citizenship despite failure to meet the residency requirements is essentially the same as that made when determining if the residency requirements should be waived. Mr. Rasaei must show a substantial connection to Canada. Failing that, compelling reasons to waive the residency requirements should be shown. These must be based on compassionate grounds or the undue hardship that someone would suffer should their citizenship be denied.
[12] In his decision, the Citizenship Judge noted that no material was filed in support of a recommendation under subsections 5(3) and (4) of the Act, but that, after careful consideration of all the circumstances of Mr. Rasaei's case, he was not of the opinion that Mr. Rasaei's case warranted a favourable recommendation "since there was no evidence of any health disability, any special or unusual hardship or services of an exceptional value to Canada".
[13] I see no error in his decision in this regard.
Issue 3: Did the Citizenship Judge ignore relevant evidence submitted by Mr. Rasaei to establish that he was regularly, normally and customarily living in Canada?
[14] Mr. Rasaei claims that the Citizenship Judge erred because he did not factor in Mr. Rasaei's Returning Resident Permit when determining the total days of residency in Canada. Mr. Rasaei states that his absence from Canada was clearly caused by a temporary situation, since he had been unable to find work in Canada in his chosen profession (engineering). Upon being hired by Baker Hughes Inc. in Massachusetts (which, the Applicant notes, is a multinational corporation which has more than 50 locations throughout Canada, inter alia), he clearly indicated his desire to return to Canada to make his home since he informed Citizenship and Immigration Canada about his temporary absence from Canada and obtained a Returning Resident Permit. Mr. Rasaei asserts that the Citizenship Judge should have taken this permit into consideration.
[15] A tribunal-or, as here, a Citizenship Judge-need not mention each and every document considered in reaching his decision (Hassan v. Minister of Employment and Immigration (1992), 147 N.R. 317 (F.C.A.)). Failure to mention a document is not fatal to a decision, provided that the reasons for the decision are reasonably based on the "totality of the evidence adduced" (Hassan, supra at 318).
[16] In this case, I am satisfied that this particular evidence, which has little if any relevance to the test for citizenship, was not ignored. At most, the Returning Resident Permit is an indication of Mr. Rasei's intention to make Canada his home. The Judge acknowledged Mr. Rasei's intentions when he stated that "your goal is to remain in Canada and you are looking forward to finding fulltime employment in Canada". Unfortunately for Mr. Rasaei, good intentions do not replace physical presence and other factors in the Koo analysis.
[17] I have no doubt that Mr. Rasaei will, in time, become a valuable citizen of our country. However, he must first satisfy the requirements of the Citizenship Act.
CONCLUSION
[18] For these reasons, I conclude that the Citizenship Judge made no error that warrants intervention by this Court and that Mr. Rasaei's appeal should not succeed.
ORDER
THIS COURT ORDERS THAT:
The Appellant's appeal is dismissed.
(Sgd.) "Judith A. Snider"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1088-04
STYLE OF CAUSE: MANSOUR RASAEI v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: November 30, 2004
REASONS FOR ORDER AND ORDER: SNIDER J.
DATED: December 2, 2004
APPEARANCES:
Mr. Mansour Rasaei ON HIS OWN BEHALF
Mr. Jonathan Shapiro FOR RESPONDENT
SOLICITORS OF RECORD:
Coquitlam, BC ON HIS OWN BEHALF
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
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