Date: 20091021
Docket: T-444-09
Citation: 2009 FC 1066
Toronto, Ontario, October 21,
2009
PRESENT: The
Honourable Mr. Justice Harrington
BETWEEN:
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Applicant
and
ULLA MUELLER
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Ms. Mueller applied for
Canadian citizenship in August 2006. One of the requirements of the Citizenship
Act as set out in section 5(1)(c) is that she be a permanent resident and
have accumulated at least three years of residence in Canada within the four
years immediately preceding the application. This works out to 1,095 days. By
her own admission Ms. Mueller was only physically present in Canada for 312 days during the four years in question.
[2]
Unfortunately, this
Court has been inconsistent as to the meaning of “residence”. These
differences of opinion were aptly summarized by Madam Justice Tremblay-Lamer in
Mizani v. Canada (Minister of Citizenship and Immigration), 2007 FC 698 at paragraph 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).
[3]
In Lam v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 177, Mr. Justice Lutfy,
as he then was, commented on these three positions. He said at paragraph 14:
In my opinion,
it is open to the citizenship judge to adopt either one of the conflicting
schools in this Court and, if the facts of the case were properly applied to
the principles of the chosen approach, the decision of the citizenship judge
would not be wrong.
[4]
He hoped that the
difficulty created by the Court’s conflicting interpretations of the residence
requirement might soon end as the Act might be amended. Unfortunately
Parliament has not seen fit to clarify the residency requirement for
citizenship.
[5]
Consequently, Ms.
Mueller had to hope the Citizenship Judge would take a here in spirit, if not
in body, approach. Although the first Citizenship Judge found that her
absences from Canada were only temporary, he nevertheless held that
she had not satisfied the residency requirement. Her appeal therefrom was
granted by Mr. Justice Barnes in Mueller v. Canada (Minister of Citizenship and Immigration), 2008 FC 961. He granted the appeal as he
was of the view that it was impossible to identify the precise legal standard
that the Citizenship Judge was applying and so directed that the matter be
re-determined by a different judge. He added: “certainly with her history of
Canadian residency, the citizenship court could not have had any reservations
about her understanding of Canada and Canadian traditions and values.”
[6]
The second Citizenship
Judge clearly purported to follow the decision of Madam Justice Reed in Re Koo,
[1993] 1 F.C. 286 (T.D.). Indeed the very form on which he wrote
his decision is based on Koo.
[7]
In Re Koo,
after reviewing the jurisprudence, Madam Justice Reed stated at paragraph 10:
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?
[8]
Re Koo is not to be treated as a piece of
legislation. The issue is whether the Applicant “regularly, normally, or
customarily lives” here or whether she has centralized her mode of existence
here. The six questions are not exhaustive and may be asked, not must be
asked. Mr. Justice Strayer made this point in Nulliah v. Canada (Minister of Citizenship and Immigration), 2006 FC 1423.
Standard of Review
[9]
Although the Minister
suggests that the Citizenship Judge’s reasons were not articulated, which gives
rise to a breach of procedural fairness, on which this Court owes no deference,
I am satisfied that the reasons given were perfectly adequate. Consequently,
the issue is whether the Citizenship Judge’s findings were reasonable (Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190).
The Facts
[10]
Ms. Mueller was born in
Germany in 1965. She came here with her family
when she was 9 years old, and has no current connections with Germany. She completed public school, high school and
college here, became a landed immigrant in 1989 at the age of 24 and has
jointly owned one residence, or another, in Canada with her husband since then.
[11]
Her husband, Richard
Hutton, works in the airline industry. He found employment in the United Arab Emirates from 1990 to 1993. She accompanied him
during those three years. They returned to Canada. In 1999 he found employment with an airline in Sri Lanka. Again she accompanied him, and was in Sri Lanka when she made her citizenship application in 2006.
[12]
They regularly returned
to Canada where she has always maintained social
ties, memberships, a house (which was never rented out and where her mother
lives), an automobile and a boat. She has filed income tax returns here and
during winters has worked at a ski club here.
[13]
During her time in Sri Lanka she worked on a contract basis as needed at the
Canadian High Commission.
[14]
The Citizenship Judge,
Robert Morrow, had before him a great deal of documentation. Ms. Mueller personally
appeared before him as she had before the first Citizenship Judge.
[15]
He found that the
pattern of physical presence in Canada always indicated
a returning home, not a visit. Canada has been the
only place she could call home since 1975. He found that the physical absences
were clearly temporary in that she was accompanying her spouse who had accepted
temporary employment abroad.
[16]
I am satisfied that the
Citizenship Judge followed Re Koo, articulated his reasons and that the
finding that she met the residency requirement was not unreasonable. A further
factor in Ms. Mueller’s favour which was not in Mr. Koo’s is that her situation,
unlike Mr. Koo’s, as per paragraph 24 of Madam Justice Reed’s decision “… is
one in which there has been an extensive period of residence in Canada prior to
the more recent extended absences.”
JUDGMENT
For reasons given, the appeal is dismissed with costs fixed at $1,250.00.
“Sean Harrington”
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