Background
[2]
The applicant is a citizen of Japan. He
moved to Canada on February 9, 2002, on a one-year working
holiday visa to work for Western Canada Machining in Edmonton,
Alberta. He was granted permanent resident status on September 8, 2005. On
April 11, 2008, the applicant returned to Japan and
has been living there ever since.
[3]
On April 12, 2008 the applicant filed an application for
citizenship wherein he reported having been physically present in Canada for
1016 days during the four years preceding his application, namely from April
12, 2004 to April 12, 2008 (the review period). The applicant acknowledges that
he has not met the statutory residence requirement of having accumulated 1095 days of
physical presence during the review period.
[4]
The application was reviewed by citizenship officer Rhoda Lutz on
July 16, 2009, following which she noted:
(a) Mr. McIlroy
indicated that he lives/studies/words in Japan;
(b) Mr. McIlroy was
staying at his friend’s residence in April 2008 and he did not provide another
address for where he is living in Canada since April 2008;
(c) Mr. McIlroy’s
wife, parents and siblings all live in Japan;
(d) Mr. McIlroy was
terminated from Western Canadian Machining in April 2008 and he failed to
provide any documentation to show his current employment;
(e) Mr. McIlroy had 19
absences during the relevant period; and
(f) Mr. McIlroy
failed to meet the statutory residency requirement by 79 days.
[5]
Officer Lutz concluded that she was not satisfied that Mr. McIlroy
was living in Canada and had built his life in Canada and referred the
application to a Citizenship Judge for a hearing.
Decision of the Citizenship Judge
[6]
At the hearing, held on August 20, 2009, the Citizenship Judge
assessed whether the applicant had centralized his mode of existence in Canada
according to the factors articulated in Re Koo, [1993] 1 F.C. 286.
(T.D.) and determined that that the applicant did not satisfy the residence
requirement under paragraph 5(1)(c) of the Act. In the September 10,
2009 decision letter, the Citizenship Judge noted:
·
The
applicant’s wife, parents and siblings were living in Japan.
·
Japan was the place where
the applicant currently lived and worked.
·
The
applicant no longer had a residence in Canada, nor an employment, and had stayed with a
friend last time he came to Canada.
·
The
applicant had no immediate plans to return to Canada.
[7]
The Citizenship Judge further found no evidence to justify a
recommendation for the exercise of the Minister’s discretion to waive the
residence requirement on compassionate grounds, pursuant to subsection 5(3) of
the Act or for the Governor in Council to direct the Minister to grant
citizenship based on special or unusual circumstances, pursuant to subsection
5(4) of the Act.
Issues
[8]
The
following issues arise in this appeal:
1. Did the
Citizenship Judge err by considering indicia of residence subsequent to the review
period and the applicant’s future plans, in determining that the residence
requirement was not met?
2. Did the
applicant have a legitimate expectation that the Citizenship Judge would only
consider the review period? If so, by proceeding as she did, did the
Citizenship Judge breach the principles of procedural fairness?
Law
Legislation
[9]
Paragraph
5(1)(c) of the Act sets out the requirement of residency:
|
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;
|
Re Koo Test
[10]
In the case at bar, there is no dispute that the Citizenship Judge
applied the residency test articulated in Re Koo.
[11]
The Re Koo
test is not dependent solely on
how many days an applicant has been physically present in Canada. In Re
Koo, at paragraph 10, Justice Reed explained:
The conclusion I draw from the jurisprudence is that the
test is whether it can be said that Canada is the place where the applicant "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 applicant'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
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?
(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?
[12]
Whether an applicant has “centralized his or her mode of
existence” is directly related to a two-pronged inquiry. First, the applicant
must establish his or her residence in Canada during the requisite period; and
secondly, he or she must have maintained his or her residence in Canada for
the entire prescribed period in the Act, i.e. in the four years prior to the
filing of the citizenship application (Ahmed v. Canada
(Minister of Citizenship and Immigration), 2002 FCT
1067, at para. 7). The establishment of residency is a preliminary step in this
analysis.
Applicant’s position
[13]
The applicant argues that the decision of the Citizenship Judge
should be set aside on the following basis:
1. The
Citizenship Judge erred in determining that the applicant never established
residence in Canada;
2. The
Citizenship Judge erred in taking into account the applicant’s country of
residence subsequent to the review period, and his intention with respect to
future residence, and;
3. The
applicant had legitimate expectations that the Citizenship Judge would only
consider his indicia of residence during the review period.
[14]
The applicant argues that the finding of Citizenship Judge, that
he failed to establish residence, is contrary to the evidence. He contends that
he established residence prior to the start of the review period and maintained
it during the duration of the review period. He states that during the period
he worked for a Canadian company, rented the same apartment, filed annual tax
returns, maintained health coverage, had a bank account and a driver’s license,
and taught and trained at the Tokugawa Judo Club in Edmonton.
[15]
The applicant argues that the primary reason the Citizenship Judge
found that the he had not met the residence requirement is because the
applicant was working and living in Japan at the time of the hearing and had no
immediate plans to return to Canada. The applicant argues the Citizenship Judge
failed to focus on the indicia of residence during the review period and
instead erroneously focused on the subsequent period when he had returned to Japan.
[16]
The applicant contends that in applying the Re Koo test,
any consideration of residency after the review period is irrelevant, and
relies on Chowdhury v. Canada (Citizenship and Immigration), 2009 FC
709; Nuliah v. Canada (Minister of Citizenship and Immigration), 2006 FC
1423; Canada (Minister of Citizenship and Immigration) v. Chen, 2004 FC
848, and; Canada (Minister of Citizenship and Immigration) v. Barker, 2003
FCT 226. On this basis, the applicant argues that his return to Japan
after the review period should have had no effect on the determination of whether
he met the residence requirement.
[17]
The applicant also contends that the Act does not require that an
applicant for citizenship establish an intention to reside in Canada
upon the granting of citizenship. The applicant argues that the Citizenship
Judge erred by requiring the applicant to have a present and continuing
residence in Canada beyond the review period. He submits that this
is a more onerous test of residence than that which is required by the Act.
[18]
The applicant further argues he had legitimate expectations that
the Citizenship Judge would only consider his indicia of residence during the review
period, and that by considering the subsequent time frames and the applicant’s
future plans, the Citizenship Judge breached the applicant’s right to a fair
hearing.
[19]
With regard to the “legitimate expectations” argument, the
applicant relies on the Citizenship Form CIT 0002 which states that only
residence in Canada during the four years prior to the filing of
the application will be considered. He also relies on the Residence
Questionnaire instructions, which states that the documents establishing the
applicant’s ties to Canada “should cover at least the
four (4) years immediately preceding the date of your citizenship application.”
The applicant further notes that he was advised by his counsel, who relied on
the Act and relevant case law, that the only time period relevant to the
residence determination was the review period.
Minister’s Position
[20]
The Minister notes that the applicant does not dispute the finding
of the Citizenship Judge that he did not meet the statutory residence
requirement of 1095 days of physical presence in Canada.
[21]
The Minister argues that in applying the factors articulated in Re
Koo, the Citizenship Judge was entitled to consider the totality of the
applicant’s circumstances in deciding that the applicant did not satisfy the
residence requirement and, in particular, did not demonstrate that he had
centralized his mode of existence in Canada. These
circumstances are explained in the Citizenship Judge’s decision and in her
notes.
[22]
With respect to the applicant’s connection to Canada,
the Minister argues that the existence of passive indicia of residence such as
tax returns, banks accounts and medical insurance, is insufficient to
demonstrate a substantial connection to Canada. To
establish a substantial connection to Canada there must
be a “reaching out to the community” or an explanation as to the lack thereof.
The Minister relies on Canada (Citizenship and Immigration) v.
Camoringa-Posch, 2009 FC 613; Hernando Paez v. Canada (Citizenship
and Immigration), 2008 FC 204, and; Eltom v. Canada (Minister
of Citizenship and Immigration), 2005 FC 1555. The Minister
notes that the applicant only belonged to one organization (Judo), did not own
property, and had stayed with friends or in hotels during his most recent
visits to Canada
[23]
The Minister argues that in considering the applicant’s
circumstances beyond the review period, the Citizenship Judge did not breach
the principles of procedural fairness. Rather, she was placing the applicant’s
citizenship application in context. The Minister notes that the Citizenship
Judge could have refused the application solely on the basis that the applicant
did not meet the statutory residence requirement. The Minister notes that
despite this, the Citizenship Judge went on to consider whether the applicant
had centralized his mode of existence in Canada. The
Minister argues that the onus is on the applicant to demonstrate that he
satisfies the residence requirement and there is no obligation on the
Citizenship Judge to raise the issue of the applicant’s connection to Canada.
The Minister relies on Belghazi v. Canada (Citizenship and Immigration), 2009
FC 222; Canada (Citizenship and Immigration) v.
Aratsu, 2008 FC 1222; Chen v. Canada (Citizenship and Immigration), 2007
FC 1140, and; So v. Canada (Minister
of Citizenship and Immigration), 2001 FCT 733.
Standard of Review
[24]
The question of whether or not an applicant for citizenship has
met the residence requirements of the Act is a question of mixed fact and
law. The applicable standard of review is reasonableness (Canada
(Citizenship and Immigration) v. Arastu, 2008 FC
1222, at paras. 16-21; Zhang v. Canada (Citizenship and
Immigration), 2008 FC 483, at paras. 7-8, and; Ishfaq v. Canada
(Citizenship and Immigration.), 2008 FC 477, at para. 4). The
decision of a Citizenship Judge will be reasonable “as long as there is a
demonstrated understanding of the case law and appreciation of the facts and
their application to the statutory test” (Canada (Citizenship and
Immigration) v. Ryan, 2009 FC 1159, at para. 16; Canada (Citizenship and
Immigration) v. Ntilivamunda, 2008 FC 1081, at para. 5).
Analysis
1. Did
the Citizenship Judge err by considering indicia of residence subsequent
to the review period and the applicant’s future plans, in determining
that the residence requirement was not met?
[25]
In
determining whether
the applicant had centralized his mode of existence in Canada, the
Citizenship Judge refers repeatedly to the relevant four-year review period in
her assessment. She noted the following in response to the first four Re Koo
factors:
1. The
applicant was only present in Canada for 42 days prior to his first
absence.
2. The
applicant’s family was living in Japan.
3.
Until April
2008, the applicant was coming back to Canada
for his job. He had several absences to Japan
(19 during the review period).
4.
The applicant
was short 79 days to meet the basic residence requirement under the Act.
It is clear that with respect
to factors 1, 3 and 4, the Citizenship Judge only considered the review period.
There is no dispute that the Citizenship Judge also referred to the applicant’s
absence from Canada outside the review period in her assessment.
[26]
It is appropriate for Citizenship Judges to consider the entire
context of the applicant’s situation in assessing the Re Koo factors (Hernando Paez v.
Canada (Citizenship
and Immigration), 2008 FC 204, at para. 14). In my view,
reference to the applicant’s business in Japan and his intention not to return
to Canada until his uncle retired, simply served to place the application in
context and did not affect the decision (Chen v. Canada (Minister of
Citizenship and Immigration), 2007
FC 1140, at para. 14-15; Hernando-Paez, at para. 22).
[27]
In the end, the Citizenship Judge was unable to conclude that the
applicant had established a
residential base in Canada during the review
period, and therefore was unable to conclude that he had centralized his mode
of existence in Canada. On the facts, this conclusion was
reasonably open to the Citizenship Judge.
2. Did the
applicant have a legitimate expectation that the Citizenship Judge would only
consider the review period? If so, by proceeding as she did, did the
Citizenship Judge breach the principles of procedural fairness?
[28]
In Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525 at 557, Sopinka
J. (citing Old St.
Boniface Residents Assn. Inc. v. Winnipeg
(City), [1990] 3
S.C.R. 1170) explained the doctrine of legitimate
expectations as “an extension of the rules of natural justice and
procedural fairness.” If the claimant has a legitimate
expectation that a certain procedure will be followed, this procedure
will be required by the duty of fairness.
[29]
In Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2
S.C.R. 817, at paragraph 26, L’Heureux-Dubé J. explained further that:
[…] This doctrine,
as applied in Canada, is based on the principle that the
"circumstances" affecting procedural fairness take into account the
promises or regular practices of administrative decision-makers, and that it
will generally be unfair for them to act in contravention of representations as
to procedure, or to backtrack on substantive promises without according
significant procedural rights.
[30]
Finally, in Mount Sinai Hospital Center v. Quebec
(Minister of Health and Social Services), 2001
SCC 41, at paragraph 29, Binnie J. stated that:
The doctrine of legitimate expectations […] looks to the conduct
of the public authority in the exercise of that power (Old St. Boniface,
supra, at p. 1204) including established practices, conduct or
representations that can be characterized as clear, unambiguous and unqualified
[citations omitted].
[31]
The applicant
argues he had legitimate expectations that the
Citizenship Judge would consider only his indicia of residence during the four-year
review period. In support of his argument, the applicant relies on the Citizenship Form CIT 0002 and Residence
Questionnaire instructions.
[32]
In my view, these forms do not create a legitimate expectation
that only the four-year review period will be considered by the Citizenship
Judge. The Citizenship Form CIT 0002 concerns the initial application and not
the hearing before the Citizenship Judge. Further, the Residence Questionnaire
does not state that only the four-year review period will be considered.
Rather, it states that the documents establishing the applicant’s ties to
Canada “should cover at least the four (4) years immediately preceding
the date” of the application [emphasis added].
[33]
In
the application of the Re Koo test, there is no clear, unambiguous and
unqualified practice of Citizenship Judges to consider only the applicant’s circumstances
during the review period. Certain factors, such as family attachment to Canada, transcend the review
period. The Citizenship Judge did not breach the principles of procedural
fairness by mentioning the applicant’s circumstances post-review period. In the
circumstances, the doctrine of legitimate
expectations finds no application.
Costs
[34]
Save in
exceptional circumstances, costs are rarely awarded in citizenship appeals (Chen v. Canada (Citizenship and Immigration), 2008 FC 763, at para. 23; Canada (Minister of
Citizenship and Immigration) v. Kovarsky, (2000), 193 F.T.R. 155
(T.D.), at para. 12). In
the exercise of my discretion, no order of costs will be made.
Conclusion
[35]
For the above reasons, the appeal will be dismissed. No order is
made as to costs.
ORDER
THIS
COURT ORDERS that for
the above reasons, the appeal is dismissed without costs.
“Edmond P. Blanchard”
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