Date:
20121206
Docket:
T-904-12
Citation: 2012
FC 1434
Ottawa, Ontario,
December 6, 2012
PRESENT: The
Honourable Mr. Justice Phelan
BETWEEN:
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LASSINA DEMBELE
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. OVERVIEW
[1]
This
is an appeal from the decision of a Citizenship Judge [Judge] refusing the
Applicant’s citizenship application. The application was denied because the
Applicant had not met the residency test nor were there extraordinary
circumstances justifying citizenship even where residency had not been
established.
II. BACKGROUND
[2]
Dr.
Lassina Dembele is a citizen of the Ivory Coast who entered Canada in January 1993 as a student. He was granted permanent residence on January 30, 2004
and applied for citizenship on October 6, 2008. The period for determining
residency for purposes of s 5(1) of the Citizenship Act, RSC 1985, c
C-29 [Citizenship Act or the Act], is October 6, 2004 to October 6, 2008
[the Relevant Period].
[3]
The
record establishes that the Applicant is in a fairly specialized area of
mathematical science related to cryptography. He was a teacher in the Ivory Coast before coming to Canada on scholarship to study for his Masters of Science degree in
statistics at the Université de Laval. He then obtained a PhD from McGill University in 2002 with a research focus in algebraic number theory. He is now
working in the United Kingdom at the University of Warwick funded by a Career
Acceleration Fellowship from the UK Research Council following the completion
of his appointment as the Marie-Curie Research Fellow at the University of Warwick. The Applicant was delayed in obtaining his PhD due to surgery to address
complications from childhood polio.
[4]
Following
his PhD, the Applicant spent periods of time in Boston on post-doctorate work
as well as at the University of Calgary with the cryptography group. From July
2005 to June 2007 the Applicant was named as a Pacific Institute for
Mathematical Sciences (PIMS) Postdoctoral Fellow at the University of Calgary.
[5]
At
the conclusion of his PIMS fellowship and as a result of limited Canadian
employment opportunities in his field of study, he worked at the Max Plank
Institute in Germany from October 2007 to July 2009. He then became the
Marie-Curie Research Fellow at the University of Warwick in the United Kingdom.
[6]
There
is no debate that the Applicant is 237 days short of the 1,095 days required by
the Citizenship Act.
[7]
The
Judge chose to apply the qualitative residency test outlined in Koo (Re),
59 FTR 27, 1992 CanLII 2417 (FC) [Re Koo]. In so doing the Judge
concluded that the Applicant had established residence in Canada prior to the Relevant Period for residency calculation – October 6, 2004 to October
6, 2008.
[8]
The
Judge further concluded that the Applicant had sufficient physical presence in
the first three years of the Relevant Period and had a continuing intent to
return to Canada even during absences. However, the Judge concluded that this
pattern of continuing intent changed when the Applicant moved to Germany in September 2007 as he gave up most of his furniture, ended his apartment lease
and ceased paying Canadian taxes.
[9]
The
Judge further concluded that the absence from Canada while in Germany had been anticipated as temporary but since the Applicant had not returned to reside in Canada, the situation was no longer temporary even though there was a continuing intention
to return. In reaching this conclusion, the Judge relied on matters outside the
Relevant Period.
[10]
Lastly,
the Judge determined that there was no unusual hardship nor should citizenship
be granted to reward services of an exceptional value to Canada.
III. ANALYSIS
[11]
The
parties agree and I concur that the standard of review of the Judge’s decision
is reasonableness (Khan v Canada (Minister of Citizenship and Immigration),
2009 FC 1178 (available on CanLII) at para 14). However, any breach of
procedural fairness must be subject to a correctness standard of review (Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190).
[12]
This
appeal can be determined on the issue of procedural fairness alone. It would
therefore be unhelpful and unnecessary to delve into the reasonableness of the
merits of the decision.
[13]
The
Applicant maintained a current address with the Respondent’s department and
there is no challenge to the Applicant’s position that documents were sent.
Therefore, there is no issue that any documents missing from the Certified
Tribunal Record cannot be attributed in any fashion to the Applicant.
[14]
There
were six (6) documents which were in the possession of the department which did
not, for some reason, form part of the record before the Judge. Among the
missing documents was material related to the Marie-Curie Fellowship at the University of Warwick as well as other materials related to the Applicant’s fellowships at the University of Calgary and University of Duisburg-Essen in the Institute of Experimental Mathematics.
[15]
In
addition to addressing the unique nature of the Applicant’s work, the evidence
(particularly that regarding the Marie-Curie Fellowship) speaks to links with Canada and the Applicant’s role therein as well as to the likelihood of obtaining tenured positions
in Canada or the United States.
[16]
This
evidence goes someway in addressing the Judge’s conclusion that the position at
the University of Warwick was permanent – a conclusion which may not have been
reached if the Judge had before her the materials from the University of Warwick.
[17]
The
Judge also accepted that the Applicant had been resident in Canada for more than three of the four years required but appears to have concluded that at some
unstated time while the Applicant was in Germany this residency ceased. In
reaching this conclusion, the Judge looked outside the four-year period which
was the focus of the inquiry to draw the conclusion that the Applicant’s
absence had transformed from temporary to permanent. The point at which this
absence was deemed to be permanent is unclear.
[18]
Aside
from the legal issue as to whether the Judge can look to events outside the
four-year period to reach conclusions as to residency, no such exercise either
within or outside the four years can be sustained where relevant documents are
missing somewhere within the department.
[19]
The
documents are relevant both to the qualitative residency test under Re Koo,
above, as well as to the exceptional circumstances considered under s 5(4) of
the Act.
IV. CONCLUSION
[20]
For
these reasons, there has been a denial of procedural fairness and a failure to
consider relevant evidence which requires this appeal to be granted.
[21]
In
referring this matter back for a new determination, I will not expose the
Applicant to the vagaries of the residency test selection. This matter, in so
far as it relates to residency, is to be redetermined in accordance with the
factors laid out in Re Koo, above.
JUDGMENT
THIS
COURT’S JUDGMENT is that the appeal is allowed and the matter is
remitted back for reconsideration by a different judge applying the factors in Koo
(Re), 59 FTR 27, 1992 CanLII 2417 (FC).
“Michael L. Phelan”
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