Date: 20020723
Docket: T-1672-01
Neutral citation: 2002 FCT 813
BETWEEN:
MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
- and -
INDRA PRASHAR GAUTAMA
Respondent
REASONS FOR ORDER
ROTHSTEIN, J.A. (ex officio)
[1] This is an appeal by the Minister of Citizenship and Immigration of a decision of a Citizenship Judge granting the Respondent Canadian citizenship. The ground of appeal is that the Citizenship Judge did not apply the test sets out in Koo (Re) (T.D.), [1993] 1 F.C. 286 to the facts of this case.
[2] The standard of review of decisions of a Citizenship Judge is set forth in Lam v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 177. At paragraph 33, Lutfy J. (as he then was) stated:
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. [Bold in original.]
[3] The reasons of the Citizenship Judge are in what appears to be a preprinted form in which the questions listed in Koo (Re) are printed and the Citizenship Judge's answers to them are handwritten in a space provided below each question. To say the least, this form of decision writing is unusual.
[4] The first of the six questions state:
(1) was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship?
The Citizenship Judge's answer is:
yes. was in Canada some time before applying for citizenship 296 days within 4 yr period
[5] Neither counsel could explain the Judge's reference "296 days within 4 yr period" In fact, the evidence is that during the 4 year period prior to her application, the Respondent was present in Canada 518 days. However, she was absent 942 days.
[6] In her answer, the Judge seems to have misinterpreted the question. It is correct that the Respondent was landed in Canada in 1990, some 9 years before her citizenship application. However, the question is directed to whether the Respondent was in Canada for a long period prior to recent absences. The evidence is that since 1990 she has been out of Canada on 6 lengthy occasions, for 358, 213, 170, 266, 345, and 331 days. Her absences were in the years 1992, 1993, 1994, 1996, 1998, 1999, 2000, and 2001. This is not a pattern of continued physical presence in Canada prior to a recent absence. Rather, it shows that over the course of 9 years before her application, she was away, periodically, about 50% of the time. This is not a case of an individual being physically present in Canada for a long period prior to recent absences immediately before the citizenship application and the Judge erred in answering "yes" to the question.
[7] The second Koo (Re) question is:
(2) where are the applicant's immediate family and dependents (and extended family) resident?
The Citizenship Judge's answer was:
yes. husband & 2 sons - all Canadian citizens.
The Minister does not challenge this answer.
[8] The third question is:
(3) does the pattern of physical presence in Canada indicate a returning home or merely visiting the country?
The Citizenship Judge answered this question as follows:
She & husband live with their son in Calgary - always come back after trips to India absent 942 days present 518 days.
[9] In answering this question, the Judge does not seem to have directed her attention to what the question requires, namely, consideration of the pattern of physical presence in Canada. In the 4-year period prior to her application, the Respondent was, as the Judge noted, present for 518 days and absent for 942 days. The absences were for much longer periods than her intermittent presences. I do not think it is reasonable to say that intermittent presences interspersed with long absences indicates a returning home rather than merely visiting.
[10] The fourth Koo (Re) question is:
(4) what is the extent of the physical absence? (number of days away from Canada VS number of days present in Canada)
The Judge's answer is:
present 518 days absent 942 days.
[11] In fact, the fourth question as set forth in Koo (Re) at paragraph 10 is:
(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?
[12] The Citizenship Judge has simply recorded the days present and days absent. She ignored the significance of the extent of the absences to which the question is directed. It is obvious the Respondent is not a few days short.
[13] The fifth question states:
(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?
The opening words of the answer written by the Judge say that absences are temporary, but the balance of her answer indicated that the physical absences are not a temporary situation. The Judge's answer is:
yes. absence temporary. She & husband went to India to reclaim their property all trips to India to get property that belongs to them. Did get paid for some property but some property still not settled.
[14] The reason for the Respondent's absences is, apparently, difficulties disposing of her husband's properties. The difficulties are not yet settled. These problems have required her absence on 6 occasions for lengthy periods over 9 years and there is still no final resolution. It cannot be said that the physical absences in this case are a clearly temporary situation.
[15] The sixth question is:
(6) what is the quality of the connection with Canada: is it more substantial than that which exists with any other country?
The answer given is:
All her immediate family are Canadian citizens.
[16] As far as the answer goes, it is based on the evidence. However, the Respondent has provided no evidence to suggest that she has made any effort to become Canadianized. She has a health insurance card and a library card, but as the Minister argues, these cards evidence only a passive involvement at best. There is no evidence of any active involvement in any Canadian organization or any attempt to learn English or French.
[17] It seems that the fact that the Respondent's immediate family were Canadian citizens heavily influenced the Citizenship Judge in this case. I accept that this is a relevant consideration. However, the question is whether the Respondent has centralized her mode of living in Canada. Her prolonged and recurring absences, the fact they will continue, and the absence of any other evidence of the Respondent becoming a part of the Canadian community must count heavily against her. The Citizenship Judge does not appear to have taken these considerations into account.
[18] I am of the respectful view that the Citizenship Judge erred in her application of the criteria in Koo (Re). Had she correctly applied the criteria she should have concluded that the Respondent did not satisfy the test for physical presence in Canada.
[19] I would allow the appeal, quash the decision of the Citizenship Judge and dismiss the Respondent's citizenship application without prejudice to her right to reapply.
"Marshall Rothstein"
J. A.
Ottawa, Ontario
July 23, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1672-01
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Appellant
- and -
INDRA PRASHAR GAUTAMA
Respondent
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: July 11, 2002
REASONS FOR ORDER: ROTHSTEIN, J.A. (ex officio)
DATED: July 23, 2002
APPEARANCES: Ms. Kerry A. Franklin
For Applicant
Mr. Ravinder (Rob) Bagga For Respondent
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada For Applicant
Mr. Ravinder (Rob) Bagga
Calgary, Alberta For Respondent
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