Date: 20000417
Docket: T-499-99
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
- and -
MICHAEL TOVBIN
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an appeal under subsection 14(5) of the Citizenship Act from a decision of Citizenship Judge Huguette Pageau, dated January 22, 1999, granting citizenship to the respondent.
FACTS
[2] The respondent and his wife and son arrived in Canada on February 6, 1995 as permanent residents. The respondent looked for a job for 10 months, but did not find one. Finally, he found employment in the United States. His wife and son remained in Canada in an apartment rented by the respondent. They have since obtained Canadian citizenship.
[3] The respondent has bank accounts, RRSPs and long-term investments in Canada. He has a driver's licence and pays automobile and home insurance and covers the expenses of his family in Canada. He also pays his federal and provincial income taxes in Canada. He is continuing to look for work in Canada while he works in the United States.
DECISION OF THE CITIZENSHIP JUDGE
[4] The citizenship judge, after reviewing the tests laid down by Reed J. in Re Koo, [1993] 1 F.C. 286, found that the respondent had satisfied the provisions of paragraph 5(1)(c) of the Act.
APPLICANT'S SUBMISSIONS
[5] The applicant argues that the citizenship judge clearly erred in finding that the respondent had met the requirement under paragraph 5(1)(c) of the Act.
[6] The applicant notes that the respondent had resided in Canada for only 476 of the 1,095 days required by the Act.
[7] The applicant notes that the judge used the tests in Re Koo, but it submits that the citizenship judge did not apply the facts appropriately.
[8] In regard to the first question in Re Koo, the applicant argues that there is every reason to think that when Reed J. referred to a long period prior to recent absences immediately before the application for citizenship, she had in mind a period covering a substantial portion of the requisite three years. But the respondent remained in Canada 322 days before beginning to be absent. These 322 days amount to less than 30% of the required three-year period. It cannot be argued that this is a long period, in the sense used by Reed J., the applicant submits.
[9] In regard to the second question, the applicant concedes that the respondent's wife and son have resided in Canada, but notes that the judge says nothing about the extended family.
[10] As to the third question, the applicant argues that the judge's reply to this question confirms that the applicant was simply visiting Canada when he returned. The applicant submits that this is a clear confirmation that the applicant was not regularly, normally or customarily living in Canada.
[11] In raising the fourth question, the applicant submits that it was obvious that the 656 days spent by the respondent outside Canada did not in any way favour a finding of deemed residence.
[12] Reviewing the fifth question, the applicant submits that there was no basis in the facts for finding that the respondent's absences were caused by a temporary situation.
[13] The applicant concedes that the sixth question, as well as the second, appear to favour the respondent. However, he argues that this is not sufficient for a finding that the respondent was regularly, normally and customarily living in Canada. He submits that the judge should have examined whether he had some relationship to the United States.
RESPONDENT'S SUBMISSIONS
[14] In so far as the first question in Re Koo is concerned, the respondent argues that the question breaks down into two parts. The citizenship judge answered only the first part; she did not comment on the respondent's recent absences. The respondent argues that his first long absence began March 28, 1996, 430 days after his arrival in Canada. This period accounts for 39.4% of the three-year period required by the Act.
[15] As to the second question, the respondent notes that the applicant concedes the constant presence of the wife and son. He argues that their presence is proof of the respondent's intention to settle in Canada and the maintenance of residence.
[16] The respondent disputes the applicant's interpretation of the third question. He points out that the judge noted that he returns home to Canada whenever this is possible, even for short periods of time. His presence demonstrates his desire to remain close to his family, notwithstanding his forced absences related to his work.
[17] In regard to the fourth question, the respondent submits that Reed J. stated it was easier to find deemed residence if the applicant were only a few days short. However, she did not say it was absolutely necessary that he be only a few days short. The respondent submits that it is necessary to examine the nature, purpose, extent and circumstances surrounding the absences from Canada in order to determine whether there is a deemed residence.
[18] In regard to the fifth question, the respondent recalls that he tried to find a job in Canada and did not find one. The citizenship judge simply referred in her reply to the respondent's eagerness to return to Canada once the opportunity presents itself.
[19] As to the last question, the applicant has already conceded that the respondent has some substantial connection with Canada. In so far as the judge's alleged error in not examining the respondent's relationship with the United States is concerned, the respondent argues that he is simply working in the United States and that all of his major connections remain in Canada.
ISSUE
[20] Did the citizenship judge err in granting Canadian citizenship to the respondent?
ANALYSIS
[21] Paragraph 5(1)(c) of the Act provides:
| 5. (1) The Minister shall grant citizenship to any person who
(c) has been lawfully admitted to Canada for permanent residence, has not ceased since such admission to be a permanent resident pursuant to section 24 of the Immigration Act, and has, within the four years immediately preceding the date of his application, accumulated at least three years of residence in Canada.
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| 5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois_:
c) a été légalement admise au Canada à titre de résident permanent, n'a pas depuis perdu ce titre en application de l'article 24 de la Loi sur l'immigration, et a, dans les quatre ans qui ont précédé la date de sa demande, résidé au Canada pendant au moins trois ans en tout.
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[22] The question of physical presence in Canada has been examined on more than one occasion by this Court. There are three schools of thought on this matter. The first was established by Associate Chief Justice Thurlow in Re Papadogiorgakis, [1978] 2 F.C. 208, the second by Reed J. in Re Koo, [1993] 1 F.C. 286, and the third by Muldoon J. in Re Pourghasemi (1993), 62 F.T.R. 122.
[23] Lutfy J. explained the status of the law concerning the applicable judgment in Lam v. M.C.I. (March 26, 1999), T-1310-98 (F.C.T.D.):
| 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. |
[24] In the case at bar, the citizenship judge adopted the questions asked by the judgment in Re Koo, which she was entitled to do.
[25] Reed J. formulated six questions to determine whether Canada is the place the citizenship applicant regularly, normally and customarily lives; in other words, whether Canada is the country in which the citizenship applicant has centralized his mode of living.
1. Was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship?
[26] This question was divided into two parts in the "[Translation] reasons for decision as to residence". It reads accordingly: Was the person concerned in Canada for a long period prior to his initial absence? Are these absences recent and did they occur immediately before the application for citizenship?
[27] The citizenship judge noted that the applicant resided in Canada for 10 months before leaving for the first time for nine days. The judge did not comment on the second part of the question.
[28] The applicant's proposition that there must be a period covering a substantial portion of the three years required in order to establish one's residence appears to me to be much broader than what is contemplated in Re Koo.
[29] In Cheung v. Canada (M.C.I.) (September 9, 1999), T-26-99 (F.C.T.D.), Evans J. noted:
| Ms. Cheung remained in Canada for six months following her arrival with permanent resident status in 1994, and moved immediately into her own home. Although not a lengthy period, it was sufficient to enable her to establish her residence in Canada. |
[30] A 10-month period may well be sufficient to establish a residence in the circumstances.
2. Where are the applicant's immediate family and dependants (and extended family) resident?
[31] It is clear from the record that the respondent's wife and child have been settled in Canada in the family residence since their arrival and that the family has never since returned to the country of origin.
[32] The applicant has not persuaded me that the respondent should have submitted additional evidence as to his extended family, if it exists.
3. Does the pattern of physical presence in Canada indicate a returning home or merely visiting the country?
[33] The judge noted that the respondent returns home whenever he has an opportunity to see his family and friends. On the one hand, the presence of his family suggests that he is returning to his country; on the other hand his absences from the country, which vary between 8 and 167 days, suggest otherwise.
[34] In Khairulbashar v. Canada (M.C.I.) (June 1, 1999), T-1523-98 (F.C.T.D.), Dubé J. stated:
| Personally, I have held in many instances that where an applicant has clearly and definitively established a home in Canada with the transparent intention of maintaining personal and permanent roots in this country, he ought not to be deprived of citizenship merely because he has to earn his livelihood and that of his family by doing business offshore. The residence of a person is not where he works but where he returns to after work. Generally, one of the most telling indicia of a person's real intention is the establishment of his whole family in a permanent home in Canada. |
[35] Following this reasoning, and bearing in mind the frequency of the physical absences and presences, as well as the other factors such as the fact that he is still seeking employment in Canada, it seems reasonable to me to conclude that the respondent is returning home.
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?
[36] The respondent was absent from Canada for 656 days, as the citizenship judge notes, and to that effect she fulfilled her role, which was to carefully examine the nature, purpose, extent and all of the circumstances surrounding the absences from Canada.1
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 temporary employment abroad?
[37] The citizenship judge noted that the respondent's absences were related to his temporary work abroad in order to meet the needs of his family. She noted that the respondent had a small registered business.
[38] If one refers to his affidavit, the respondent tried to obtain work as a translator.
[39] He approached some Canadian government bodies but was told that preference was given to Canadian citizens.
[40] Finding himself in a vicious circle, he decided after 430 days to work in the United States in order to provide for the needs of his family.
[41] Had he remained at home without work, a dependent of the state while awaiting his citizenship, I do not think that would have made him a better applicant.
6. What is the quality of the connection with Canada: is it more substantial than that which exists with any other country?
[42] The judge appears to have been persuaded that the respondent's substantial connection was with Canada. There is no evidence in the record that would indicate otherwise.
CONCLUSION
[43] It may be useful to recall that this appeal was filed under the new Rules and that it is not a trial de novo. In M.C.I. v. Ching, [1999] F.C.J. No. 623, Campbell J. notes:
| ... under the new rules, citizenship appeals are no longer trials de novo, and, therefore, are governed by s. 18.1(4) of the Federal Court Act. In this respect, for a decision of a citizenship judge to be set aside, it is necessary to find reviewable error. Apart from clear errors of law, which are rare, citizenship appeals under the new rules focus on s. 18.1(1)(d) about which Rouleau, J. in Hung says as follows: |
| Section 18.1(1)(d) essentially codifies the way the courts have viewed findings of fact made by administrative tribunals. In Kibale v. Transport Canada (1988), 90 N.R. 1 (F.C.A.) at 4, leave to S.C.C. refused (1989), 101 N.R. 238 (S.C.C.), Pratte J.A. stated that "even if the court is convinced that a decision is based on an erroneous finding of fact, it cannot intervene unless it is also of the opinion that the lower court, in making its finding, acted in a perverse or capricious manner, or without regard for the evidence." Not only must the finding of fact be perverse or capricious or without regard to the evidence before the adjudicator, this court must make such a finding if it is to interfere pursuant to s. 18.1(4)(d). |
[44] The applicant has failed to persuade me that the judge erred in her interpretation of the facts, the evidence and the testimony of the respondent.
[45] Accordingly, the appeal shall be dismissed.
VANCOUVER, BRITISH COLUMBIA
April 17, 2000
Certified true translation
Martine Brunet, LL.B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE: The Minister of Citizenship and Immigration v. Michael Tovbin |
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: April 4, 2000 |
REASONS FOR ORDER and ORDER OF BLAIS J.
DATED: April 18, 2000
APPEARANCES:
Caroline Doyon FOR THE APPLICANT
Nadia Petrolito FOR THE RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada
Montréal, Quebec FOR THE APPLICANT
De Granpré & Chait
Montréal, Quebec FOR THE RESPONDENT
__________________
1 Re Agha (1999), 166 F.T.R. 245.
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