Date: 20021105
Docket: T-1635-01
Neutral citation: 2002 FCT 1144
Vancouver, British Columbia, Tuesday, the 5th day of November, 2002
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Appellant
and
JACINTO MARCELO DIMAILIG
Respondent
REASONS FOR ORDER AND ORDER
BEAUDRY J.
[1] This is an appeal of the decision of Citizenship Judge Gallagher (the "Citizenship Judge"), dated July 24, 2001, granting the Respondent's application for Canadian citizenship under subsection 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29 as amended (the "Act"). The Appellant seeks an Order quashing the Citizenship Judge's decision to grant the Respondent's application for citizenship as well as an Order denying him citizenship.
Issue
[2] The sole issue in this appeal is whether the Citizenship Judge erred in concluding that the Respondent had satisfied the residency requirement set out in subsection 5(1)(c) of the Act.
Background
[3] Both Appellant and Respondent rely on the facts and evidence contained in the certified copy of the Citizenship Judge's file (the "Record").
[4] On March 26, 2001, the Respondent completed and submitted an adult application for Canadian citizenship. By cover letter of the same date, the Respondent clearly stated that the application was being submitted for exceptional consideration due to his circumstances.
On June 19, 2001, he was required to write a "Knowledge of Canada" citizenship test. A document entitled "Notice to Appear To Write A Citizenship Test" showed a test result of 20/20.
[5] In support of his application for Canadian citizenship, the Respondent completed a Residence Questionnaire and submitted various other documents found in the Record, including a Record of Landing, Returning Resident Permits, State of Title Certificates, a Social Insurance Card and a British Columbia Driver's Licence, a Notice of Assessment from the CCRA for the tax year 2000 and a 2000 Tax Statement. During the relevant period, i.e. from March 26, 1997 to March 26, 2001, the Respondent was frequently outside of Canada for lengthy periods due to his employment. According to the information provided by the Respondent in support of his application, he was absent from Canada for 1222 days during this period, meaning that since he arrived in Canada on May 31, 1997, he was physically present for 238 days in the four years preceding the date of his citizenship application.
[6] Convinced that the Respondent's case could be considered under exceptional grounds, the Citizenship Judge approved his application for Canadian citizenship by decision dated July 26, 2001. He did so despite the fact that the Respondent had a shortage of 860 days with respect to meeting the minimum requirement of three years of residence in Canada within the four years immediately preceding the date of his application, pursuant to subsection 5(1)(c) of the Act. By letter dated September 12, 2001, the Appellant filed its Notice of Application to appeal the Citizenship Judge's decision.
Analysis
[7] In Badjeck v. Canada (Minister of Citizenship and Immigration) (2001), 19 Imm. L.R. (3d) 8 at paras. 38-40 (F.C.T.D.), Rouleau J. summarized the role of this Court sitting on appeal of a Citizenship Judge's decision as follows:
It should be noted at the outset that the applicable standard of review in citizenship appeals has been determined by the courts to be correctness: Lam v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 177, at para. 33; Canada (Minister of Citizenship and Immigration) v. Hung, [1998] F.C.J. No. 1927, at para. 12 (QL) (F.C.). Although findings of fact by citizenship judges must be treated with deference, the citizenship judge's decision in the case at bar may be quashed if it completely disregards important evidence without explanation: Hung, supra.
A person who applies for citizenship under s. 5(1)(c) of the Act must have resided in Canada for at least three years in the four years preceding the date of his or her application. This Court has several times noted that judicial decisions with radically divergent interpretations have seriously complicated application of the Act. The assessment of the case law on the residence requirement by the citizenship judge in the case at bar is hardly an example of precision and eloquence, and the way in which she referred to the points made by various judicial schools of opinion could well lead to confusion. In Lam, supra, at para. 33, Lutfy J. noted that a citizenship judge's decision should not be set aside simply because one party to the dispute does not agree with the test applied to determine residence. This is what Lutfy J. wrote in this regard:
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. (Emphasis added)
[8] In the subsequent decision of Yang v.Canada (Minister of Citizenship and Immigration) (2002) 20 Imm. L.R. (3d) 171 at para. 16 (F.C.T.D.), Rouleau J. further clarified his earlier statement by stating that:
Since Mr. Justice Lutfy's decision in Lam, supra, the jurisprudence of this Court establishes that there is a certain amount of deference owed to the specialized knowledge and experience of citizenship judges. Thus, a citizenship judge is entitled to adopt one particular approach to the determination of the residence requirement over another. So long as the approach chosen by the citizenship judge is correctly applied, the intervention of this Court is not warranted. (Emphasis added)
[9] In the case at bar, and on a review of the impugned decision page 10, 11 and 12, I note that the Citizenship Judge has based his decision on an analysis of the factors set out in Reed J.'s in Re Koo, [1993] 1 F.C. 286 (F.C.T.D.).
10. Describe your connections with Canada, aside from your relationships with your family.
Wife + son are Canadians, living in Burnaby. Became citizens in 2001. Always maintained active interest in things Canada. Did 100% on knowledge of Canada test. Fluent in English.
14. Have the absences been a necessary part of your life as a business person (crossed out and replaced by "UN employee")?
Yes (Check-mark)
Date: July 24/01
Signature: Judge Paul Gallagher
When he started to work with the UN, he lived in the Philippines. When the family relocated to Canada, he continued his employment with UN - otherwise would have had to "start over again" in Canada.
Intends to "retire" to Canada with a UN pension, in 5 years when he becomes pensionable.
His employment with UN is "temporary" in the sense that he will be eligible for retirement in 5 years and there he will live and work in Canada.
- owns home in Canada - and nowhere else. Rents in New York.
- wife and son have become citizens and reside permanently in Canada
- excellent knowledge and appreciation of Canada - very sophisticated
- is clearly "temporary" rather than permanent resident in New York
- no evident connection with the Philippines anymore
This application is approved.
While the application has spent only 298 days living in Canada since landing, his "home" clearly is in Canada and his connections with Canada are very strong.
It would have been unrealistic for him to have given up his UN position upon landing in Canada and he will - in 5 years - be sufficiently secure financially to leave the UN and remain in Canada on a consistent basis.
I also draw attention to Mitha (June 1, 79). In the application before me, "To deny citizenship would serve no purpose. To require the applicant to meet the residency requirements would be to condemn him to five years of idleness and loss of the security of a pension", and to deprive the UN of his valuable services.
(Signature of Judge) Paul Gallagher (Date) July 26/01
[10] In spite of the able argument by counsel for the Appellant, I am of the opinion that there are no reviewable errors in the decision of the Citizenship Judge.
[11] There is no ground that could justify the Court's intervention.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed.
(Sgd.) "Michel Beaudry" Judge
I HEREBY CERTIFY that the above document
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is a true copy of the original filed of record
in the Registry of the Federal Court of Canada
on the _______ day of ___________ A.D. 20 ____
Dated this _______ day of ____________ 20 ____
Sean Carr, Registry Officer
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FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1635-01
STYLE OF CAUSE: The Minister of Citizenship and Immigration v.
Jacinto Marcelo Dimailig
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: November 5, 2002
REASONS FOR ORDER : The Honourable Mr. Justice Beaudry
DATED: November 5, 2002
APPEARANCES:
Mr. Peter Bell FOR PLAINTIFF / APPLICANT
Mr. Jacinto Marcelo Dimailig
( on his own behalf ) FOR DEFENDANT/ RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg, Deputy
Attorney General of Canada FOR PLAINTIFF/APPLICANT
Mr. Jacinto Marcelo Dimailig
( on his own behalf ) FOR DEFENDANT/ RESPONDENT
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