Canada (Minister of Citizenship and Immigration) v. Adler, 2002 FCT 227

                                                                                                                                             Date: 20020301

                                                                                                                                          Docket: T-226-01

                                                                                                                   Neutral Citation: 2002 FCT 227

BETWEEN:

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Applicant,

- and -

SARAH-ROSE JOSEPHA ADLER

Respondent.

REASONS FOR ORDER

KELEN J.:

[1]         This is an appeal pursuant to subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29, and section 21 of the Federal Court Act, R.S.C. 1985, c.F-7 by the Minister of Citizenship and Immigration from the decision of Citizenship Judge Frank Hayden, dated December 20, 2000, wherein the Citizenship Judge approved the application of the respondent for a grant of citizenship under subsection 5(1) of the Citizenship Act.

FACTS

[2]         The respondent was born March 19, 1944. She is a citizen of South Africa. The appellant entered Canada on August 16, 1997 as a permanent resident.    On August 31, 2000 the respondent applied for Canadian citizenship.

[3]         Prior to landing in Canada, the respondent had been a "human rights worker and paralegal community organizer" in South Africa. She arrived in Canada to take employment with a law firm where her brother worked, which was expanding its international human rights activities in South Africa. Her intention to take on this employment was indicated before landing. Her husband and daughter landed with her, and their son landed on April 6, 1998, after completing undergraduate studies in South Africa.

[4]         At her Canadian employer's request, the respondent has returned to South Africa. In the four years prior to her application for citizenship, the respondent was absent from Canada for 961 days, and present in Canada 149 days. These absences are explained by the respondent as being due to business. Her husband and daughter joined her on these return trips.

[5]         In October, 1999, the respondent purchased a home in Toronto jointly with a relative. Her daughter attended school in South Africa until 2000.

[6]         The applicant's absences from Canada since her arrival on August 16, 1997 and her citizenship application on August 31, 2000 are as follows:

1.                    twenty-eight days after entering Canada, the applicant left Canada for South Africa on September 13, 1997 for a period of one year and two weeks, from September 13, 1997 to September 25, 1998;

2.                    the appellant returned to Canada for seventeen days and then left Canada for South Africa for a period of one year and three months, from October 12, 1998 to January 15, 2000; and,

3.                    the applicant returned to Canada for thirty-five days and then left Canada for four months to return to South Africa, from February 25, 2000 to June 29, 2000.

The applicant applied for Canadian citizenship two months after returning to Canada.

[7]         During the absences of the applicant, the applicant's husband and daughter accompanied her to South Africa. Her husband was and is employed in South Africa. The applicant owned a residence in South Africa and lived in that residence with her family during the times the applicant was absent from Canada.

[8]         During her absences, the applicant filed Canadian income tax returns for 1997, 1998 and 1999. The applicant maintained a bank account in Canada. The applicant obtained a "returning resident's permit" so that she could return to Canada as a returning resident.

STANDARD OF REVIEW

[9]         The standard of review for a decision of a Citizenship Judge with regard to the selection and application of a residency test is set out by McKeown J. in Zhang v. M.C.I., [2001] F.C.J. No.778 at paragraph 7:

The standard of review applicable in such matters is correctness. The test is refined further by Justice Lutfy in Lam v. Canada (M.C.I.) (1999), 164 F.T.R. 177 where he stated at paragraph 33:

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 [...]

It was further refined by Justice Pelletier in Canada (M.C.I.) v. Mindich (1999), 170 F.T.R. 148 (T.D.) where he stated at paragraph 9:

Given the divergence in the views of the members of the Federal Court, a Citizenship Judge could choose one approach or the other and not be wrong on that count alone. The function of the judge sitting in appeal is to verify that the Citizenship Judge has properly applied the test of his or her choosing. [emphasis added]

Accordingly, the standard of review is correctness, in that the Appeal Court must verify that the Citizenship Judge has correctly applied one of the residency tests. The Appeal Court ought not substitute its different opinion unless the Citizenship Judge has made an error in applying the residency test.

QUALIFICATION FOR CITIZENSHIP

[10]       Pursuant to the calculation prescribed by paragraph 5(1)(c)of the Citizenship Act, in order to be granted citizenship, the appellant must have accumulated at least three years (1095 days) of residence in Canada within the four years immediately preceding the date of her application.

Subsection 5(1) of the Act reads as follows:

Grant of citizenship

5. (1) The Minister shall grant citizenship to any person who

(a) makes application for citizenship;

(b) is eighteen years of age or over;

(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 calculated in the

following manner:

(i) for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and

Attribution de la citoyenneté

5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois:

(a) en fait la demande;

(b) est âgée d'au moins dix-huit ans;

(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, la durée de sa résidence étant calculée de la manière suivante:

(i) un demi-jour pour chaque jour de résidence au Canada avant son admission à titre de résident permanent,

(ii) un jour pour chaque jour de résidence au Canada après son admission à titre de résident permanent;

(ii) for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence;

(d) has an adequate knowledge of one of the official languages of Canada;

(e) has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship; and

(f) is not under a deportation order and is not the subject of a declaration by the Governor in Council made pursuant to section 20.

(d) a une connaissance suffisante de              l'une des langues officielles du Canada;

e) a une connaissance suffisante du Canada et des responsabilités et avantages conférés par la      citoyenneté;

(f) n'est pas sous le coup d'une mesure d'expulsion et n'est pas visée par une déclaration du gouverneur en conseil faite en application de l'article 20.

TEST FOR RESIDENCY

[11]       Several tests for residency have been developed by the Federal Court of Canada, Trial Division. It has been established in Hsu v. M.C.I., [2001] F.C.J. No. 862 (F.C.T.D.), per Heneghan J. that citizenship judges may properly apply any test, but may not blend different tests together. Heneghan J. held at paragraph 7:

In my opinion, it appears that the Citizenship Judge blended two tests, that is the strict calculation of time with the substantial connection test expressed in Re: Koo, [1993] 1 F.C. 286 (T.D.). While the reasons reflect consideration of the questions posed in Re: Koo, supra, there is no evidence in the record or the reasons that the Citizenship Judge fully or openly addressed her mind to the issue of "connection" to another country. Such analysis, in my opinion, would be required before the Citizenship Judge could reach the conclusion which she did, that is that the Appellant had failed to demonstrate a "known substantial connection to Canada than to any other country". I adopt the words of Justice Lemieux in Re: Agha (1999), 166 F.T.R. 245 (T.D.) at paragraph 49:

The lack of the Citizenship Judge's analysis in this case is an error in principle which eliminates any reluctance I might have had in coming to a different factual conclusion notwithstanding the trial de novo context.

[12]       In re Citizenship Act and in re Antonios E. Papadogiorgakis, [1978] 2 F.C. 208 (F.C.T.D.), Thurlow, A.C.J. set out the "central existence" test such that notwithstanding absences that exceed the minimum requirements, the application hinges on whether or not the appellant has centralized their ordinary existence in Canada:

A person with an established home of his own in which he lives does not cease to be resident there when he leaves it for a temporary purpose whether on business or vacation or even to pursue a course of study. The fact of his family remaining there while he is away may lend support for the conclusion that he has not ceased to reside there. The conclusion may be reached, as well, even though the absence may be more or less lengthy. It is also enhanced if he returns there frequently when the opportunity to do so arises.

It is, as Rand J. [[1946] S.C.R. 209">Thomson v. M.N.R., [1946] S.C.R. 209] appears to me to be saying in the passage I have read, "chiefly a matter of the degree to which a person in mind and fact settles into or maintains or centralizes his ordinary mode of living with its accessories in social relations, interests and conveniences at or in the place in question"

[13]       Dubé J. restated this test in Re: Banerjee (1994), 25 Imm.L.R. (2d) 235 (F.C.T.D.) at 238 as: "It is the quality of the attachment to Canada that is to be ascertained."

[14]       The "physical presence" test set out by Muldoon J. in Pourghasemi (Re), [1993] F.C.J. No. 232 (F.C.T.D.) calls for the appellant to be physically present in Canada for the required number of days. Paragraphs 3-4 read:

It is clear that the purpose of paragraph 5(1)(c) is to insure that everyone who is granted precious Canadian citizenship has become, or at least has been compulsorily presented with the everyday opportunity to become, "Canadianized". This happens by "rubbing elbows" with Canadians in shopping malls, corner stores, libraries, concert halls, auto repair shops, pubs, cabarets, elevators, churches, synagogues, mosques and temples - in a word wherever one can meet and converse with Canadians - during the prescribed three years. One can observe Canadian society for all its virtues, decadence, values, dangers and freedoms, just as it is. That is little enough time in which to become Canadianized. If a citizenship candidate misses that qualifying experience, then Canadian citizenship can be conferred, in effect, on a person who is still a foreigner in experience, social adaptation, and often in thought and outlook. If the criterion be applied to some

citizenship candidates, it ought to apply to all. So, indeed, it was applied by Madam Justice Reed in Re Koo, T-20-92, on December 3, 1992 [Please see [1992] F.C.J. No. 1107.], in different factual circumstances, of course.

The statute does not direct the Court to evince sentimentality in order to evade, or to defy the statutory requirement for residence. Perhaps because of misunderstanding of this Court's previous jurisprudence, appellants seem to be advised to keep Canadian bank accounts, magazine subscriptions, medicare cards, lodgings, furniture, other property and good intentions to meet the statutory criterion, in a word, everything except really residing among Canadians in Canada for three out of the previous four years, as Parliament prescribes. One may ask: So what if the would-be citizen be away at school or university? What is the urgency? If the candidate cannot find an adequate school or university in Canada, let him or her study abroad and then come back to Canada in order to comply with the residence requirement.

[15]       Finally, with respect to the "centralized existence" test, Reed J. in Koo (Re), [1993] 1 F.C. 286, [1992] F.C.J. No. 1107(F.C.T.D.) set out a list of factors which point to sufficient attachment to Canada so as to allow for the granting of citizenship even where a 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 appellant "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 appellant'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 appellant 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?

[16]       All these tests have been held to be applicable. As Blanchard J. stated in So v. Canada (Minister of Citizenship & Immigration), [2001] F.C.J. No. 1232 (F.C.T.D.), at paragraph 29:

The jurisprudence supports the proposition that a Citizenship Judge may adopt and apply whichever of the above test he or she chooses as long as it properly applied.

In Lam v. Canada (Minister of Citizenship & Immigration), [1999] F.C.J. No. 410 (F.C.T.D.) at paragraph 14, Lutfy J. (as he then was) stated:

In my opinion, it is open to the Citizenship Judge to adopt either one of the conflicting schools in this Court and, if the facts of the case were properly applied to the principles of the chosen approach, the decision of the Citizenship Judge would not be wrong.

DECISION OF THE CITIZENSHIP JUDGE

[17]       An interview with the respondent was held by Citizenship Judge Frank Hayden. On December 20, 2000 the Citizenship Judge approved the application of Sarah Adler for a grant of Canadian citizenship. The Judge included the following comments in his written Reasons for Decision regarding residence:

Her son and daughter are in Canada, although they had been in South Africa during Ms. Adler's time there, as was her husband. He works for an institute in South Africa and will probably continue there.

Impression is that her base was here, even though she spent more time in South Africa. She worked for a Canadian based firm that assigned her to work in South Africa. She has owned property in Toronto since December, 1999.

Documentation is sufficient to evidence connection to Canada. She has returned here, family is here and she works from a Canadian base. South Africa work will end.

In the Judge's decision at the conclusion of the Reasons he writes:

During Ms. Adler's time away she was working as a Canadian resident sent by a Canadian firm

Work was and is very important and a significant contribution by Canada to South Africa restructuring.

Though she has been present only 149 days it is evident that she has become familiar with Canadian society, culture and government enough to be ‘Canadianized'.

ISSUES

[18]       Did the Citizenship Judge err in determining that the appellant failed to comply with paragraph 5(1)(c) of the Act?

SUBMISSIONS

[19]       The appellant submits that the Citizenship Judge erred in law and in fact in failing to determine that the applicant had not centralized her mode of living in Canada. The appellant relies upon the decision of Justice O'Keefe in Canada (M.C.I.) v. Lee [2000]F.C.J. No. 744 which held at paragraph 19:

It is my opinion that the respondent in the present case, did not establish a centralized mode of living in Canada in the seventeen days that she was in Canada before her first absence. Therefore, I am not prepared to count periods of absence from Canada toward her residence requirement. As a result, the Citizenship Judge was in error when the Citizenship Judge ruled that the respondent had met the residence requirement of paragraph 5(1)(c) of the Act and granted the respondent citizenship.

[20]       The appellant also relies upon Dias v. Canada (M.C.I.) [2000] F.C.J. No. 1964 per O'Keefe J. at paragraph 18:

In coming to the conclusion that I have reached, I have considered the applicant's activities in Canada, but it is my opinion as noted above, that it is next to impossible to establish a centralized mode of living in Canada in thirty-seven days of residency. I have also considered the fact that the applicant has no other residence except Canada, but in my opinion a centralized mode of living in Canada must be established before departure from Canada in order to have the time spent away from Canada apply to the residency requirement of 1,095 days.

[21]       The appellant submits then that the Citizenship Judge in the case at bar similarly failed to recognize that the respondent did not establish a "centralized mode of living" in Canada in the twenty-seven days that she was in Canada after landing before returning to South Africa for one year and two months. In this way, the Citizenship Judge erred in failing to properly apply the "centralized existence" test in Koo (Re), supra.

[22]       The respondent submits that the Citizenship Judge was fully aware of the facts of the application, and took all factors into consideration in deciding that Ms. Adler's base was in Canada as required by Koo. Further, the respondent submits that the Judge had an oral interview with the respondent and had the opportunity at that interview to address any concerns. The respondent stresses the significance of the fact that the applicant was working for a Canadian firm at the times of absences and had been assigned job responsibilities which required her to be outside Canada. Specifically, the respondent was assisting in the democratic restructuring of South Africa as part of a Canadian Government aid project.

[23]       The respondent refers to the decision of Rothstein J. (as he then was) in Aviles (Re) [1994] F.C.J. No. 1960 (F.C.T.D.), specifically at paragraphs 9-10:

I think it is in Canada's best interest that immigrants such as the Garcias are prepared to assume the risk of going back to less stable parts of the world than Canada in the course of employment with a Canadian employer, as opposed to simply remaining in Canada, either on social assistance or at a relatively low level of employment, simply to qualify for the residency requirement in paragraph 5(1)(c) of the Citizenship Act. It seems to me it would be somewhat perverse to penalize the appellants in this case because of Mr. Garcia's employment requirement with his Canadian employer.

I am satisfied that the Garcia's have an intention to come to Canada and from what I have heard, they have an intention to remain in Canada as soon as Mr. Garcia's tour of duty is completed in Nicaragua in the fall of 1996. Taken with the other indicia indicating an intention to base themselves in Canada to which I have referred earlier, I am satisfied that this is a case in which citizenship should be granted. I would therefore allow the appeal.

ANALYSIS

[24]       In my view, the Aviles case is distinguished from the case at bar because the immigrants in the Aviles case did centralize their existence in Canada for one year and four months before their first absence from Canada to work.

[25]       In this case, I find that the applicant has not centralized her existence in Canada during the twenty-seven day period before she left Canada for her first absence. As in Koo, supra, the pattern of the applicant's physical presences in Canada is more consistent with visits to this country than demonstrating a return to a place where one "regularly, normally and customarily lives". Justice Dubé in Bannerjee, supra held at paragraph 8:

[...] However, a mere intention is not sufficient to establish an ongoing residency [...] the applicant must have established a residence and kept a pied-à-terre in Canada with the intention to reside here.

In the case at bar, the applicant does have an intention to establish Canada as her place of residence, but has not established a residence. She purchased a joint interest in a home in October, 1999 at a time when she was absent in South Africa for a period of one year and three months. She returned to Canada on January 16, 2000 and lived in the home for thirty-five days before returning to South Africa for another four months. Accordingly, the applicant had a "mere intention" to establish residency in Canada, and her joint purchase of a house cannot satisfy the residency test set out by Justice Dubé in paragraph 8 of the Bannerjee, supra case.

[26]       In paragraph 9, Justice Dubé states:

As well, the actual taking of possession of a residence appears to be required and centralizing a home in Canada is necessary prior to leaving the country for extended periods.

Clearly the applicant did not take possession of a residence in Canada or centralize a home in Canada prior to leaving Canada for extended periods.

[27]       Finally, Justice Dubé states at paragraph 10:

However, each case must turn on its own facts. It is the quality of the attachment to Canada that is to be ascertained

In this case, the Citizenship Judge must balance the "quality of the attachment" to Canada with the "quality of the attachment" to South Africa during the material time period. In my view the Citizenship Judge erred both in applying the "centralized existence" test in Koo, supra and the "quality of attachment" test in Bannerjee, supra. If these residency tests had been correctly applied in accordance with the law, the Citizenship Judge would have found that the applicant had not

"centralized her existence" in Canada prior to her first absence and subsequent absences, and that her "quality of attachment" to South Africa outweighed her "quality of attachment" to Canada in that:

(4)                 the applicant's husband, daughter and son lived with her in South Africa during the material time period except for three relatively short stays in Canada which totaled 149 days;

(5)                 the applicant owns a residence in South Africa where she lived;

(6)                 the applicant's husband is employed in South Africa; and,

(7)                 the applicant did not establish a residence in Canada until January 16^th, 2000.

[28]       Considering the first four questions set out in Koo, supra show that the applicant fails the Koo residency test:

Question 1

The applicant was not physically present in Canada for a long period prior to her absences;

Question 2

The applicant's immediate family and dependents were resident in South Africa during the material time, not Canada;

Question 3

The pattern of physical presence in Canada indicates merely visiting Canada, not returning home; and,

Question 4

The physical absences from Canada are extensive - more than a few days short of the 1095-day minimum.

[29]       For these reasons, the Citizenship Judge erred in applying the residency test set out in Koo, supra, and considered in Bannerjee, supra. Accordingly, this appeal is allowed.

                                                                                                                                  (signed) Michael A. Kelen

                                                                                                        _____________________________

                                                                                                                                                           JUDGE

OTTAWA, Ontario

March 1, 2002