Date: 20100910
Docket: T-1636-09
Citation: 2010
FC 903
Calgary, Alberta, September 10, 2010
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Applicant
and
JAVIER
ALONSO COBOS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
This is an application made by
the Minister of Citizenship and Immigration for judicial review of a decision
of a Citizenship Judge approving the application by the Respondent Javier
Alonso Cobos for Canadian citizenship. At the hearing, Counsel for the Minister
requested that the decision be quashed and not sent back for redetermination.
Counsel for the Minister argued that, even if the decision were to be quashed,
the Respondent Cobos would in no way be precluded from reapplying for
citizenship at a later date.
For the reasons that follow I find that the decision will be
quashed.
[1]
The
uncontested facts are that the Respondent Cobos, together with his wife and
children entered Canada on February 28, 2004. They
were, at the time, all citizens of Columbia.
The Respondent Cobos has acquired landed immigrant status in Canada. His wife and children are now
Canadian citizens.
[2]
Upon
entering Canada, the Respondent and his
family acquired a house in Calgary where his family has lived
ever since. The Respondent, after working briefly as a store clerk in Calgary,
secured employment with a Mexican company working as an electrician on
off-shore oil rigs in the Gulf
of Mexico. As a
result, the Respondent was frequently away from Canada for long periods of time. He would
return to Canada briefly then be off again to Mexico or Venezuela. In addition, the Respondent, including
at times with his family, would return to Columbia on vacation. In total, for the four
years preceding the Respondent’s application for Canadian citizenship he spent
688 days in Canada and was absent 722 days of
which 51 days were vacation.
[3]
The
Respondent retained a house in Columbia and while the record is
unclear, that house appears to have been rented out. The Respondent submitted
Canadian Tax Returns and payment, much of which was reimbursed because he paid
foreign tax as well which was offset against his Canadian taxes.
[4]
The
Respondent applied for Canadian citizenship on March 17, 2008. On August 5, 2009
that application was approved by a Citizenship Judge. The “reasons” for that
decision take the form of handwritten entries on a printed form entitled
“Reasons for Decision Regarding Residence”, which form essentially sets out in
printed form the so called “Koo” questions Koo (Re), [1993] 1 F.C. 286
(T.D.) and provides a few lines after each question for handwritten entries
plus a further few lines following a printed title “Decision”. It is this
decision that the Minister seeks to quash.
[5]
The
question that the Citizenship Judge was required to answer was whether the
Respondent had met the conditions of section 5(1)(c) of the Citizenship Act,
R.S.C. 1985, c. C-29. Given that it is agreed that the Respondent is a landed
immigrant the question is whether he is:
(c) 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:
[6]
There has,
unfortunately, been differing jurisprudence in this Court as to how this
question is to be approached. Recently Mainville J (as he then was) endeavoured
to review the relevant jurisprudence and to establish a clear and consistent
approach to the question in Canada (Minister of Citizenship and
Immigration)
v. Takla, November 2, 2009, 2009 FC 1120. As to the standard of review Mainville
J said at Paragraph 39 of Takla:
[39] In this context, I am of the
view that the reasonableness standard of review must be applied with
flexibility and adapted to the particular context in question. Thus, the Court
must show deference, but a qualified deference, when hearing an appeal from a
decision by a citizenship judge under subsection 14(5) of the Citizenship Act
concerning the determination of compliance with the residence requirement. The
issues of jurisdiction, procedural fairness and natural justice raised in these
appeals are nonetheless reviewed against the correctness standard in accordance
with the principles outlined in Dunsmuir. This is an approach that is
consistent with both Parliament’s expressed intention to subject these
decisions to a right of appeal and the Supreme Court of Canada’s teachings
concerning the duty of the courts to show deference when sitting on an appeal
from decisions of administrative tribunals.
[7]
As to the
interpretation of section 5(1)(c) of the Citizenship Act, supra,
Mainville J said at pargraph 45 of Takla:
In the current context, since the situation
that was perceived as temporary at that time has become permanent, it appears
appropriate, in my view, to settle on one interpretation of subsection 5(1)(c)
of the Citizenship Act. Considering the clear majority of this Court’s
jurisprudence, the centralized mode of living in Canada test
established in Koo, above, and the six questions set out therein for analytical
purposes should become the only test and the only analysis.
[8]
And at
paragraph 50:
Finally, as a last point, it
is useful to note that the Koo test and the six-questions analysis attached to
that test are only useful to the extent that residence in Canada
has actually been established at a date prior to the citizenship application in
order to effectively calculate a period of residence under the Citizenship Act.
In fact, if the threshold issue of residence has not been established, the
judge should not conduct a more thorough analysis. The comments of Madam
Justice Layden-Stevenson
in this respect in Goudimenko v. Canada (Minister of Citizenship
and Immigration), 2002 F.C.J. No. 581 (QL), at paragraph 13, are relevant:
The difficulty with the
appellant’s reasoning is that it fails to address the threshold issue, his
establishment of residence in Canada. Unless the threshold test
is met, absences from Canada are irrelevant . . . In other words,
a two-stage inquiry exists
with respect to the residency requirements of paragraph 5(1)(c) of the Act. At
the first stage, the threshold determination is made as to whether or
not, and when, residence in Canada has been established. If
residence has not been established, the matter ends there. If the threshold has
been met, the second stage of the inquiry requires a determination of whether
or not the particular applicant’s residency satisfies the required total days
of residence. It is with respect to the second stage of the inquiry, and
particularly with regard to whether absences can be deemed residence, that the
divergence of opinion in the Federal Court exists.
On this issue, see also Ahmed
v. Canada (Minister of Citizenship and Immigration), 2002 F.C.J. No. 1415 (QL),
at paragraph 4, and Canada (Minister of Citizenship and Immigration) v. Farag,
2009 FC 299, 2009 F.C.J. No. 674 (QL), at paragraph 21.
[9]
This
approach has since been adopted by a number of Judges at this Court. As an
example I cite Zinn J in Canada (MCI) v. Elzubair, 2010 FC 298 at
paragraph 13:
At paras. 46-49 of Takla, Justice Mainville convincingly supported his finding that there
should only be one test for residence, despite this Court’s jurisprudence that
suggests otherwise. I concur with his view. Therefore, the approach to be
followed by citizenship judges is to first make a threshold assessment as to
whether residence was established at all: Goudimenko v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 447, and then,
if it was established, to assess, following the test described in Koo (Re),
[1993] 1 F.C. 286 (T.D.), whether that residence is sufficient to satisfy the
obligation described in subsection 5(1)(c) the Citizenship Act.
[10]
It is
against this background that I will examine the decision of the Citizenship
Judge at issue here where he applied the questions set out in Koo, supra.
While I accept that in the present case the Minister’s Counsel argued that some
of the answers were so far off base or the consistent errors in law thus
attract a correctness standard I find that, having established that the Koo
questions are those to be answered, the standard is that of reasonableness as articulated
by Mainville J in Tekla, supra.
[11]
Question
#1
Was the individual physically present in Canada for a long period prior to
recent absences which occurred immediately before the application for
citizenship?
[12]
Judge’s
Findings
Client landed Feb 28, 2004 was present in
Canada till Mar 28-Apr 30-34 days-toget his famioy in Columbia, returned to Canada (Calgary) with his family Apr 30,
04.SEP
[13]
This
finding is unresponsive to the question asked. The question is directed to the
residency at the date of making the application, March 17, 2008, and periods of
absence prior to that date. The Findings appears to relate only to the date of
entry in Canada and the 2009 period.
[14]
Question
#2
Where are the applicants immediate family
and dependants (and extended family) resident?
[15]
Judge’s
Findings
Wife (Sonia) children (Laura, Diana,
David) all reside & are CDN citizens since 12-5-2008
[16]
The Judge
gave no consideration to the Respondent’s extended family such as parents,
siblings and others.
[17]
Question
#3
Does the pattern of physical presence in Canada indicate a returning home or
merely visiting the country?
[18]
Judge’s
Findings
Clients108 requirement is basically 30
days out 30 days in. Work as a Oil Rig electrician for Weatherford (Precision
Drilling) all absences were for work in Venezuela & Mexico with the exception of 3
vacations in Columbia (13, 25, 13 days). The client
always returns to Canada during each turn-around.
[19]
The Judge
gave no consideration to the fact that the Respondent always worked abroad,
never in Canada, and always vacationed
abroad, never in Canada.
[20]
Question
#4
What is the extent of the physical
evidence (number of days away from Canada VS number of days present in Canada)
[21]
Judge’s
Findings
During 4 year period-(1460 days) client
was present 688 days & absent 722 days
[22]
The Judge
failed to note that included in the absences were 51 days of vacation in Columbia.
[23]
Question
#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 temporary employment abroad?
[24]
Judge’s
Findings
Client continues to search for
electricians job on his specialty on oil rigs. Oil rigs in Canada do not require on-site
electricians, off-shore rigs do. He has asked his employer for opportunities in
Canada. Comment Weatherford is a
Int’l co. which took over Precision Drilling a Cdn. co.
[25]
The Judge
failed to consider whether the Respondent has made any serious efforts to
secure employment in Canada in situations other than
off-shore rigs. There is no evidence on the record to indicate that the
Respondent’s skills are so limited or specialized that employment can be
secured only on off-shore oil rigs.
[26]
Question
#6
What is the quality of the connection
with Canada? Is it more substantial than
that which exists with any other country?
[27]
Judge’s
Findings
His connection to Canada is very good-mother &
family (3 children) remain in Calgary-owned home, client religiously returns to
Canada at every turn-around (usually
30 days or so days off)
Pay income tax in Canada
[28]
The Judge
failed to consider whether the situation was one where the Respondent simply
parked his family in Canada while all the time he was
working abroad. The Judge failed to consider that essentially all the Canada tax was refunded by offsets
from taxes paid by the Respondent abroad.
[29]
As a
result the Citizenship Judge made the following decision:
Decision
I would approve the client on the basis
family roots are definitely in Canada the drilling industry is very global and
Calgary is the centre of the drilling industry and offers skills world-wide.
Therefore the client is required, at this time, to work outside of Canada.
File is very complete-all indications
from info presented, indicates a commitment to Canada.
[30]
I find
that this decision is wholly unreasonable given the numerous errors in respect
of findings as to the “Koo” questions. The decision must be quashed.
Given that the Respondent can re-apply perhaps under circumstances more
favourable to him, there is no point in sending the matter back for
redetermination.
[31]
The
Minister did not ask for costs.
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