Date: 20100121
Docket: T-1726-08
Citation: 2010 FC 69
Ottawa, Ontario, January 21, 2010
Present: The Honourable Mr. Justice Shore
BETWEEN:
AMADOU BALIO BAH
and
NENE IDIATOU BAH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Preliminary
[1]
For the purposes of an application for
citizenship, it is settled law that holding employment abroad, even with a
Canadian entity or an entity linked to one, is not an acceptable justification
for those absences, unless there is substantiating evidence, as this is a
deliberate choice and not something beyond the applicants’ control (Canada (Minister
of Citizenship and Immigration) v. Tarfi, 2009 FC 188, [2009] F.C.J. No. 244
(QL) at paragraphs 8-9; Canada (Minister of Citizenship and Immigration)
v. Hussein, 2008 FC 757, 330 F.T.R. 166; Khan v. Canada (Minister of
Citizenship and Immigration), 2006 FC 47, 145 A.C.W.S. (3d) 379).
II. Introduction
[2]
This is an application for judicial review of a
decision of Citizenship and Immigration Canada dated September 10, 2008, rejecting
the application for citizenship made by the applicants under subsection 14(5)
of the Citizenship Act, R.S.C. 1985, c. C-29 (Act).
[3]
Under paragraph 300(c) of the Federal
Court Rules, SOR/98-106 (Rules), appeals in citizenship matters are brought
as applications and are subject to sections 300 et seq. of the
Rules.
III. Facts
[4]
The applicants, Amadou Balio Bah and Nene
Idiatou Bah, are citizens of the Republic of Guinea and arrived in Canada in August 1991 as temporary residents (citizenship file (CF) at pp. 1,
8, 46 and 49).
[5]
They became permanent residents on July 5
and 7, 2002, and applied for Canadian citizenship on November 28, 2004 (CF at pp. 7 and 14).
[6]
The applicants were summoned to appear before a
citizenship judge on June 9, 2008. At that time, Idiatouh Bah and Balio
Bah respectively had a total of 426 and 427 days of physical presence in Canada from November 28, 2000, to November 28,
2004 (CF at pp. 23 and 28). The reference period is therefore from November 28, 2000, to November 28, 2004.
[7]
Their citizenship applications were rejected
pursuant to paragraph 5(1)(c) of the Act because they did not show
that they met the residency conditions.
[8]
From November 18, 2002, to the dates of their
citizenship applications, the applicant Balio Bah chose to hold employment with
a Canadian non-government organization in Senegal. The applicant Idiatou Bah and the couple’s two children chose to
live with the applicant Balio Bah in Senegal.
IV. Issue
[9]
Did the citizenship judge err in concluding that
the applicants had not shown that they met the residency conditions within the
meaning of paragraph 5(1)(c) of the Act?
V. Analysis
[10]
The Court agrees with the respondent that the
applicants did not show that the citizenship judge made an error of law or of
fact subject to review by this Court when he decided to reject their
applications for Canadian citizenship.
A. Applicable statutory provision
[11]
Paragraph 5(1)(c) of the Act reads as
follows:
|
5. (1) The Minister shall grant
citizenship to any person who
…
(c)
is a permanent resident within the meaning of subsection 2(1) of the Immigration
and Refugee Protection Act, and has, within the four years immediately
preceding the date of his or her 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
(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;
|
5. (1) Le ministre attribue la
citoyenneté à toute personne qui à la fois :
[...]
c) est un résident permanent au sens du paragraphe 2(1) de la Loi
sur l’immigration et la protection des réfugiés 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.
|
B. Citizenship judge’s decision
[12]
It is now acknowledged, since Dunsmuir v. New
Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190, that the decision of a citizenship judge on the issue of
residency must be examined on the basis of the standard of reasonableness (Tarfi,
above; Canada (Minister
of Citizenship and Immigration) v. Ntilivamunda,
2008 FC 1081, 302 D.L.R. (4th) 345 at paragraph 5).
[13]
In this case, the citizenship judge refused to
grant citizenship to the applicants because they did not discharge their burden
of showing, in accordance with paragraph 5(1)(c) of the Act, that
they met the conditions concerning their physical presence in Canada (El Fihri
v. Canada (Minister of Citizenship and Immigration), 2005 FC 1106, 147
A.C.W.S. (3d) 745 at paragraph 12; Malevsky v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 1148, 120 A.C.W.S. (3d) 11).
[14]
In his assessment of the concept of residence,
the citizenship judge could adopt one of the following three approaches:
[10] This Court’s interpretation of “residence” can be
grouped into three categories. The first views it as actual, physical
presence in Canada for a total of three years, calculated on the
basis of a strict counting of days (Pourghasemi (Re), [1993] F.C.J. No. 232 (QL) (T.D.)). A less
stringent reading of the residence requirement recognizes that a person can
be resident in Canada, even while temporarily absent, so long as he or she
maintains a strong attachment to Canada (Antonios E. Papadogiorgakis
(Re), [1978] 2 F.C. 208 (T.D.). A third interpretation, similar to the
second, defines residence as the place where one “regularly, normally or
customarily lives” or has “centralized his or her mode of existence” (Koo
(Re), [1993] 1 F.C. 286 (T.D.) at para. 10).
[11] I essentially agree with Justice James O’Reilly in Nandre,
above, at paragraph 11 that the first test is a test of physical presence,
while the other two tests involve a more qualitative assessment:
Clearly, the Act can
be interpreted two ways, one requiring physical presence in Canada for three
years out of four, and another requiring less than that so long as the
applicant’s connection to Canada is strong. The first is a physical test and the second is a
qualitative test.
(Emphasis added.)
(Mizani v. Canada (Minister of Citizenship and Immigration), 2007 FC 698, 158 A.C.W.S. (3d) 879; also, Lam v. Canada (Minister
of Citizenship and Immigration) (1999), 164 F.T.R. 177, 87 A.C.W.S. (3d)
432 (T.D.)).
[15]
In the present case, the citizenship judge used
the approach that was most favourable to the applicants, applying the test in Koo (Re), [1993] 1
F.C. 286, 59 F.T.R. 27 (T.D.). He weighed the following six factors, explaining
the relevant evidence and his conclusions for each one:
a.
Were the applicants
physically present in Canada for a long period prior to recent absences
which occurred immediately before the application for citizenship?
b.
Where are the applicants’
immediate family and dependents (and extended family) resident?
c.
Does the pattern of physical
presence in Canada indicate a returning home or merely visiting
the country?
d.
What is the extent of the
physical absences (if an applicant is only a few days short of the 1095 day
total, it is easier to find deemed residence than if those absences are
extensive)?
e.
Is the physical absence
caused by a clearly temporary situation such as working as a missionary abroad,
following a course of study abroad as a student, accepting temporary employment
abroad or accompanying a spouse who has accepted temporary employment abroad?
f.
What is the quality of the
connection with Canada: is it more substantial than that which exists
with any other country?
1) Duration of the applicants’ presence in Canada before filing their applications
[16]
The applicants were absent from Canada for 741 days before filing their
applications.
[17]
However, the citizenship judge acknowledged that
they had lived in Canada since
1991, came here as students and obtained their permanent residency in July 2002.
[18]
The citizenship judge also noted that the
applicants were already living in Senegal when they filed their applications for citizenship (CF at p. 23).
[19]
In addition, the citizenship judge noted that
the applicant had decided to work abroad from November 2002 for a Canadian
company and that he was still holding this employment when his application was
assessed (CF at pp. 25 and 29). The applicant Idiatou Bah had decided to
accompany Balio Bah to Senegal
(she also performs the same work in Senegal as her husband).
2) Lack of family in Canada
[20]
Regarding the second criterion, the citizenship
judge found that the applicants and their two Canadian children all live in Senegal.
[21]
In addition, the applicant Idiatou Bah admitted
that she and Balio Bah had left their apartment to go abroad and did not have
any personal property in Canada.
She also admitted that no family members live here (AR at pp. 25 and 29).
[22]
The applicants therefore do not meet this
criterion.
3) Physical presence in Canada shows that the applicants are merely visiting
[23]
The applicants did not submit any evidence about
the dates of their returns to Canada since they left in November 2002.
[24]
The citizenship judge also found that the
applicants did not have a temporary residence in Canada (the house acquired before they filed their citizenship application
was rented) and had no family here. Although the applicants did not submit any
evidence on this point, it appears that the applicant came to Canada in 2004 to
give birth to her second child and then returned to Senegal.
[25]
The applicants had to show that they had social ties
to Canada. However, they did
not substantiate their allegations (upon commencement of proof) to the effect
that they founded and worked for a not-for-profit organization that facilitates
exchanges between Canada and the African continent and also participated in an
association called “Lions Club – Montréal au service de l’enfance”.
[26]
The applicants therefore do not have any real
social ties to Canada.
[27]
Accordingly, the citizenship judge concluded
that the applicants had not [translation]
“shown that [their] return to Canada was a return to [their] home” (CF at pp. 25 and 29).
4) Lengthy absence
[28]
Regarding the fourth criterion, that is, the
extent of a physical presence in Canada (number of days of absence compared with the number of days of
presence), the citizenship judge noted that the applicants spent 427 days
(426 days for the applicant’s wife; CF at p. 29) in Canada during the period in question,
versus 741 days abroad.
[29]
Considering that the applicants have been living
outside of Canada since November 2002, they did not in any way centralize
their mode of living in Canada
and did not “regularly, normally or customarily” live in Canada:
[7] Specifically, I consider that even if the
citizenship judge erred in calculating the number of days the applicant was
absent (he mentioned 942 days), that error is not significant as the applicant
himself indicated in his citizenship application that he was absent for 864
days because of his work abroad. As the applicant was not in Canada for 596 days during the reference period, he was far from meeting
the minimum residence requirement of 1,095 days, which sufficed for the
citizenship judge to reasonably deny his application.
[8] In Re Pourghasemi (1993), 19 Imm. L.R.
(2d) 259, at 260, Muldoon J. set out the purposes underlying paragraph
5(1)(c) of the Act:
... the purpose ... 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. . .
(Emphasis added.)
(Abderrahim v. Canada (Minister of Citizenship and
de Immigration), 2004 FC 1486, 139 A.C.W.S. (3d)
810).
[30]
As the Court recalled in Xu v. Canada (Minister of Citizenship and Immigration), 2005 FC 700, 139 A.C.W.S. (3d) 433:
[15] Parliament
made it clear that an applicant for citizenship must have accumulated “at least”
three years of residence within the four years immediately preceding the date
of his application. As for the notion of “residence”, it is not specifically
defined under s. 2(1) of the Citizenship Act. But it is certainly fair
to say that the allowance for one year’s absence during the four-year period
under s. 5(1)(c) of the Act creates a strong inference that the
presence in Canada during the
other three years must be substantial. . . .
[31]
In addition, in similar circumstances, this
Court has already ruled that a trip of 616 days abroad was an indication
that the applicant’s life was not centralized in Canada (Khan, above, at
para. 18 (international mining company – absence of 676 days); also Ali
v. Canada (Minister of Citizenship and Immigration), 2008 FC 106, 164
A.C.W.S. (3d) 745 (employed by a non-governmental organization (NGO) – absence
of 305 days); Sharma v. Canada (Minister of Citizenship and Immigration),
2003 FC 1384, 242 F.T.R. 185 (a UNICEF worker – absence of 958 days); Fernandes
v. Canada (Minister of Citizenship and Immigration), 2003 FCT 305, 121
A.C.W.S. (3d) 424 (international bank – absence of 857 days); Canada (Minister
of Citizenship and Immigration) v. Woldemariam (1999), 175 F.T.R. 108,
[1999] F.C.J. No. 1545 (QL) (absence of 412 days – former worker with
the World Food Program (UN)).
[32]
Paez v. Canada (Minister of Citizenship and Immigration), 2008 FC 204, 165 A.C.W.S. (3d) 228 states the following:
[16] . . . :
When absences are a regular pattern of life rather than a
temporary phenomenon, they will indicate a life split between two countries,
rather than a centralized mode of existence in Canada,
as is contemplated by the Act . . .
. . .
[17] I agree with my colleague. While the Koo (Re)
test is inherently flexible, taking into account the personal circumstances of
an applicant, that flexibility can extend only so far. At some point if an
applicant wishes to become a Canadian citizen, he must centralize his mode of
existence in Canada. (Emphasis added).
[33]
The applicants did not therefore meet this
criterion.
5) Permanent physical absences
[34]
Regarding the fifth criterion, which requires determining
the reasons for absences from Canada and whether those absences were the result of a temporary
situation, the citizenship judge acknowledged that the applicant Balio Bah had held
employment abroad since 2002 and that the applicant Idiatou Bah had chosen to
accompany him.
[35]
The applicants claim that Balio Bah’s employment
in Senegal was temporary.
[36]
However, Balio Bah’s employment contract, which
was initially for a two-year term, was subsequently renewed indefinitely after
the applications for citizenship were filed (CF at p. 30).
[37]
Balio Bah did not submit any evidence showing
that his employer had offered him a position in Canada or had made a commitment
to change his posting to Canada
in the future.
[38]
Quite the contrary, Balio Bah admitted having asked
his employer for a change of posting and that this was refused. As mentioned
above, Balio Bah also specifically accepted a renewal of his contract abroad
after the applications for citizenship were filed.
[39]
The applicants had to justify their absences
from the country so that they could be considered as periods of residence in Canada and thereby show that they had
centralized their lives here.
[40]
For the purposes of an application for
citizenship, it is settled law that holding employment abroad, even with a
Canadian entity or an entity linked one, is not an acceptable justification for
those absences, unless there is substantiating evidence, as this is a
deliberate choice and not something beyond the applicants’ control (Tarfi,
above, at paras. 8-9; Hussein, above; Khan, above).
[41]
Moreover, the following was stated in Khan,
above:
[22] The applicant has made a choice to work for a company
that requires him to work outside Canada at their diamond mining operation in Guinea. As noted in (Re) Leung (1991), 42 F.T.R. 149 at 154, 13 Imm.
L.R. (2d) 93, many Canadian citizens, whether Canadian born or naturalized,
must spend a large part of their time abroad in connection with their
businesses, and this is their choice. An applicant for citizenship, however,
does not have such freedom because of the provisions of section 5(1) of the
Act. (Emphasis added.)
[42]
The applicants’ physical absences from Canada were therefore not due to a purely temporary
situation. In fact, the evidence they submitted clearly shows that it was a
permanent situation.
[43]
It was therefore reasonable for the citizenship
judge to conclude that Balio Bah’s employment abroad was not temporary (Khan,
above at paragraphs 20-21).
[44]
As for Idiatou Bah, she argued that the
citizenship judge should have considered that her volunteer activities for Balio
Bah’s employer should count as days of physical presence in Canada.
[45]
The evidence submitted clearly shows that Idiatou
Bah did not choose to leave Canada to do volunteer work, but to accompany the applicant Balio Bah abroad
and combine work with pleasure by offering to devote time to her husband’s
business in return for compensation.
[46]
Besides the agreement, no other evidence was
submitted to show that the applicant Idiatou Bah actually did volunteer work. However,
Balio Bah’s employer did certify his employment (CF at p. 189).
[47]
In addition, contrary to what the applicant
Idiatou Bah stated, nothing in the evidence submitted showed that she had
chosen to temporarily act as a co‑operant.
[48]
While the applicants’ future intentions are not
relevant in assessing the nature of the absences during the period covered by
their applications for citizenship (Ntilivamunda, above, at para. 17),
the citizenship judge noted that the applicants intended to return to Canada but were unable to specify the date
of their return (CF at pp. 26 and 30).
[49]
The decision also mentions the fact that the
applicants had acquired property in Canada a few days before filing their citizenship applications but never
lived in this property; it has been rented out since then (CF at pp. 26 and
30).
[50]
The citizenship judge was therefore warranted in
concluding that the applicants did not meet this criterion.
6) Few connections with Canada
[51]
The citizenship judge concluded that the
applicants did not have a more substantial connection with Canada than with any other country.
[52]
In fact, the lack of family, a pied-à-terre and property
(besides their rental property) in Canada, together with the permanent nature
of Balio Bah’s employment abroad and the lack of sufficient substantiating
evidence showing a connection with Canada (for example, Balio Bah’s income tax
returns), warrants such a conclusion despite the fact that Idiatou Bah returned
for the birth of the couple’s second child.
[53]
The applicants state that the citizenship judge
erred in concluding that their connection with Canada was tenuous. They argue that the following factors were sufficient
to allow the citizenship judge to conclude that they had centralized their mode
of living in Canada:
a.
A bank account in Canada;
b.
The acquisition of property in which they never
lived and which, according to the evidence, was being rented out at the time of
the hearing;
c.
The birth of their two children, who are
Canadian citizens;
d.
The sale of their property in Guinea.
[54]
It is settled law that the four above-mentioned
factors are sufficient to show the required connection to Canada:
[18] Finally, with respect to the quality of connection
to Canada, the existence of ”passive” indicia such as the possession
of homes, cars, credit cards, driver’s licenses, bank accounts, health
insurance, income tax returns, library cards, etc., the Court has been
reluctant to find that on their own, these are sufficient to demonstrate a
substantial connection (Sleiman, supra, at para. 26; Eltom,
supra, at para. 25; Canada (Minister of Citizenship and
Immigration) v. Xia, 2002 FCT 453, [2002] F.C.J. No. 613 (QL), at
para. 25). When it comes to establishing a connection, there must be
some evidence that would demonstrate a reaching out to the Canadian community
or a rationale [sic] explanation for the lack such evidence, not merely
passive indicia . . . (Emphasis added).
(Paez, above;
also, Khan, above, at paras. 14 and 23; Sleiman v. Canada
(Minister of Citizenship and Immigration), 2007 FC 230, [2007] F.C.J. No.
296 (QL); Eltom v. Canada (Minister of Citizenship and Immigration), 2005 FC 1555, 284 F.T.R. 139; Canada (Minister of Citizenship and Immigration) v. Xia, 2002 FCT 453, 113 A.C.W.S. (3d) 765 at para. 25).
[55]
The citizenship judge not only properly stated
the six Koo criteria above, but also correctly applied them.
C. The applicants’ other arguments
[56]
In addition, the applicants argue that the
citizenship judge should have considered that the male applicant’s work was an
exceptional contribution to Canadian society. However, they did not submit any
evidence substantiating this allegation (CF at pp. 18 and 20).
[57]
The applicants further argue that the
citizenship judge did not take into consideration the fact that the head office
of the male applicant’s employer was located in Canada.
[58]
However, this fact was specifically mentioned in
the decision at criteria 1, 5 and 6 (CF at pp. 25 and 26).
VI. Conclusion
[59]
Although the applicants disagree with the
decision of the citizenship judge, they did not show any error that would
warrant intervention by this Court.
[60]
Indeed, they did not show that they met the
residency test required under paragraph 5(1)(c) of the Act.
[61]
Considering the above, the documents filed as a
commencement of evidence without being substantiated by the applicants do not
permit the Court to allow the application for judicial review.
[62]
The application for judicial review is therefore
dismissed.
JUDGMENT
THIS COURT
ORDERS that
1. The
application for judicial review be dismissed;
2. No serious question of general
importance be certified.
“Michel M.J. Shore”
Certified true
translation
Michael Palles
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