Docket: T-1181-11
Citation: 2012 FC 489
Vancouver, British Columbia, April
25, 2012
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Appellant
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and
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SHIRLEY J. WILLOUGHBY
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
Applicant, Ms. Shirley Willoughby, became a permanent resident of Canada on April 20, 2000. On
July 18, 2008, she applied for Canadian citizenship. In a decision dated May
16, 2011, a citizenship judge (the Judge, or Citizenship Judge) approved Ms.
Willoughby’s application for citizenship. Specifically, in spite of 745 days of
absence from Canada during the four-year period (1,460 days) prior to her
application, the Judge concluded that Ms. Willoughby met the residency
requirements of s 5(1)(c) of the Citizenship Act, RSC 1985, c C-29 (Citizenship
Act or Act).
[2]
The
Respondent, the Minister of Citizenship and Immigration (the Minister), seeks
to have this decision overturned. For the reasons that follow, I will allow
this appeal.
[3]
This is an appeal
pursuant to s 14(5) of the Citizenship Act. Such appeals proceed by way
of application based on the record before the citizenship judge and are
governed by the Federal Courts Rules, SOR/98-106 pertaining to
applications: Rule 300(c); Canada (Minister of Citizenship and
Immigration) v Wang,
2009 FC 1290, 360 FTR 1. There are no further appeals from decisions of this
Court.
[4]
An
applicant who meets the criteria set out in s 5 of the Citizenship Act
will be granted citizenship. Pursuant to s 5(1)(c), an applicant for
citizenship must demonstrate
that he or she has, within the four years immediately preceding the date of his
or her application, accumulated at least three years of residence in Canada. In
one line of jurisprudence from the Federal Court, the failure to meet the
statutory number of days is not fatal to an application. This qualitative approach was
articulated in In re
Citizenship Act and in re Papadogiorgakis, [1978] 2 FC 208 at 213-214 (TD), 88 DLR (3d) 243 [Papadogiorgakis]
and simply requires that the Applicant, who may be short of the required 1,095
days of residence, demonstrate that Canada is the country where the applicant
normally or customarily lives or is the country in which she or he has “centralized
his mode of living”. This test was refined by Justice Reed in Koo (Re)
(1992), [1993] 1 FC 286 (TD), [1992] FCJ No 1107 [Koo]. The test in Koo,
above at 293-294, as first utilized by Justice Reed, directs the
citizenship judge to analyze six factors to determine whether an applicant has
met the requirement of residence by his or her “centralized … mode of
existence”, even where the applicant falls short of the 1,095-day
requirement.
[5]
Before me, the
Minister does not argue that the Judge erred by applying the qualitative test.
Rather, the Minister argues that, while it was open to the Judge to apply the Koo
test, the decision was unreasonable because the Judge failed to assess each
part of the Koo test.
[6]
I agree with the
Minister that the standard of review is reasonableness. The assessment of the
Koo factors requires a fact-driven inquiry and assessment of evidence,
thereby attracting the reasonableness standard of review (see Jardine v Canada (Minister of
Citizenship and Immigration), 2011 FC 565
at paras 16-17, [2011] FCJ
no 782). On this standard, the Court should not intervene unless the
decision falls outside the range of possible, acceptable outcomes or does not accord
with the principles of justification, transparency and intelligibility (see Dunsmuir
v New Brunswick, 2008 SCC 9
at para 47, [2008] 1
SCR 190).
[7]
Ms. Willoughby was
not just a few days short of the statutorily-prescribed 1,095 days; she was
physically in Canada for only 708 days, or 387 days short of
the required 1,095 days. Her absences were almost exclusively for the
purpose of returning to Australia to spend time with her children and
grandchildren. Ms. Willoughby maintains a home in Australia and, according to the record before the Citizenship Judge,
has every intention of spending large amounts of her time in Australia with her family.
[8]
In his decision, the
Citizenship Judge purports to apply the Koo factors. The Judge entered
comments under each heading. However, the Judge has, in my view, misapprehended
the nature of Ms. Willoughby’s attachment to Canada
and failed to carry out an analysis of the evidence before him. Of primary
concern, the Citizenship Judge did not consider the nature of Ms. Willoughby’s
absences from Canada. These absences were not temporary and
were not going to be altered in the future.
[9]
Indeed, almost every
fact before the Citizenship Judge points away from a grant of Canadian
citizenship. Not only had Ms. Willoughby spent 745 days out of Canada, her
pattern of absences was not about to change. Ms. Willoughby maintains a
dwelling in Australia that she uses during her visits with her immediate family
members (her daughters and grandchildren) in Australia.
Even though Ms. Willoughby has a home and husband in Canada, her extensive absences from Canada constitute “a structural
mode of living abroad rather than just a temporary situation” (Canada (Minister of Citizenship and
Immigration) v Camorlinga-Posch,
2009 FC 613 at para 50, 347 FTR 37 [emphasis omitted]). The most that can be
said is that Ms. Willoughby has established two homes – one in Canada and one in Australia. As pointed out by Justice Martineau in Canada (Minister of Citizenship and
Immigration) v Chen,
2004 FC 848 at para 10, [2004] FCJ No 1040:
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 contemplated by the Act.
[10]
In my view, the
decision of the Citizenship Judge is well outside the range of possible
acceptable outcomes and does not accord with the principles of justification,
transparency and intelligibility.
[11]
Ms. Willoughby very
capably and articulately represented herself in this Court. There is no doubt
that she has formed significant attachments to Canada.
Unfortunately, at this time, those attachments are likely not sufficient to
satisfy the test for Canadian citizenship.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. the appeal is allowed; and
2. the
decision of the Citizenship Judge is set aside.
“Judith
A. Snider”
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