Date: 20090603
Docket: T-2210-07
Citation: 2009 FC 577
Toronto, Ontario, June 3, 2009
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
NOORUDDIN JUNIOR FEERASTA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an appeal under section 21 of the Federal Courts Act, R.S., 1985, c. F-7
(Federal Act),
subsection 14(5) of the Citizenship Act, R.S., 1985, c. C-29 (Act)
and Rule 300(c) of the Federal Court Rules, SOR/98-106 (Rules) of
the decision of a Citizenship Judge (Judge), dated October 26, 2007 (Decision),
approving the Respondent’s application for Canadian Citizenship.
BACKGROUND
[2]
The
Respondent and his wife landed in Canada on July 5, 2001. They
currently reside in Mississauga, Ontario. The Respondent arrived under the EN2
category and entered Canada as an investor. He is a computer expert
with no degrees. He makes an extensive income managing investments in Canada
and Pakistan. The
Respondent’s lifestyle benefits from a portion of his father’s assets which he
manages.
[3]
The
Respondent’s two children attend a British School in Pakistan. They have
been to Canada a few times,
but mostly take trips in December and the summer time. The Respondent moved around
as a youth and found that he could not cope with the change. He does not want
to move his children and desires to give them stability so they can focus on
their schooling. The Respondent is inclined to bring the children to Canada for
university but high school in Canada is “not an attractive choice.”
[4]
After
the Respondent and his wife’s arrival in 2001, they purchased a house after one
year.
[5]
The
Respondent applied for Canadian citizenship on June 26, 2006. In the four years
preceding the date of his application for citizenship, his absences totalled
477 days outside of Canada and 983 days in Canada. He initially claimed
1093 days. The Respondent alleges that his citizenship application was prepared
by a secretary at his investment company, Barney River Investments. The
secretary failed to note several of the Respondent’s absences from Canada.
[6]
The
Respondent’s citizenship application was granted on October 26, 2007, with the
Judge finding that all of the requirements were met, including the residency
requirements under section 5(1)(c) of the Act.
[7]
A
motion was brought by the Respondent for an Order striking the Applicant’s
Record for non-compliance with Rule 309 of the Rules (filing the Applicant
Record without the order or reasons of which the application is made). The motion
was dismissed by Prothonotary Milczynski on June 16, 2008.
DECISION UNDER REVIEW
[8]
The
Judge noted that the Respondent had overlapping passports because he wanted a
computerized passport and took advantage of having one made in Pakistan. The
Respondent was uncertain why the passports overlapped. The Judge found that it
was not a deliberate act that was calculated to deceive.
[9]
The
Judge also noted that the Respondent came to Canada for the
“purposes of security”.
[10]
In
relation to Re: Koo, [1993] 1 F.C. 286 (F.C.T.D.), the judge concluded
as follows:
·
Pattern
of absences—continuous but short
·
Where
are applicant’s immediate family? Here and there-split
·
Returning
home or visiting? Both returning home, but again, on this question, I would say
both—he has one foot there and one here
·
Shortfall?
110 days; significant
·
Is
visiting abroad temporary? Yes, the trips were short, for purposes of visiting or
quick business trips
·
Quality
of connection to Canada-more substantial? –split-depends on how much disclosure
has been provided. Connection is substantial, in terms of wife here and
substantial investments here during the relevant period. It is not possible to
determine from the evidence his assets and commitments abroad. In the narrow window
of the relevant period, what can be seen is a couple of Applicants who, given
the extensive period, what can be seen is a couple of Applicants who, given the
extensive evidence, in particular bank and credit card statements, there can be
no doubt of the time spent and investments made in this country. The quality of
connection can only be counted as substantial. I say, this, in spite of the
fact that their children are educated abroad. On the balance of probabilities,
given the evidence presented, the Applicants meet the requirements of
citizenship.
ISSUES
[11]
The
Applicant submits the following issues on this application:
1)
Did
the Judge err in finding the Respondent to have met the residency requirement
under section 5(1)(c) of the Act?
2)
Did
the Judge ignore relevant factors in determining whether the Respondent had
misrepresented their absences from Canada?
STATUTORY PROVISIONS
[12]
The
following provisions of the Act are applicable to this application:
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Grant of citizenship
5. (1) The Minister shall grant
citizenship to any person who
(a) makes application for citizenship;
(b) is eighteen years of age or over;
(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;
(d) has an adequate knowledge of one of the official
languages of Canada;
(e) has an adequate knowledge of Canada and of the
responsibilities and privileges of citizenship; and
(f) is not under a removal order and is not the subject
of a declaration by the Governor in Council made pursuant to section 20.
29. (1) For the purposes of this
section, "certificate" means a certificate of citizenship, a
certificate of naturalization or a certificate of renunciation.
Offences and punishment
(2) A person who
(a) for any of the purposes of this Act makes any false
representation, commits fraud or knowingly conceals any material
circumstances,
(b) obtains or uses a certificate of another person in
order to personate that other person,
(c) knowingly permits his certificate to be used by
another person to personate himself, or
(d) traffics in certificates or has in his possession any
certificate for the purpose of trafficking,
is
guilty of an offence and liable on summary conviction to a fine not exceeding
one thousand dollars or to imprisonment for a term not exceeding one year or
to both.
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Attribution
de la citoyenneté
5.
(1) Le ministre attribue la citoyenneté à toute personne
qui, à la fois :
a) en fait la
demande;
b) est âgée
d’au moins dix-huit ans;
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;
d) a une
connaissance suffisante de l’une des langues officielles du Canada;
e) a une
connaissance suffisante du Canada et des responsabilités et avantages
conférés par la citoyenneté;
f) n’est pas
sous le coup d’une mesure de renvoi et n’est pas visée par une déclaration du
gouverneur en conseil faite en application de l’article 20.
29. (1) Au présent article, «certificat » s’entend du certificat de
citoyenneté, de celui de naturalisation ou de celui de répudiation.
Infractions et peines
(2) Commet une infraction et encourt, sur
déclaration de culpabilité par procédure sommaire, une amende maximale de
mille dollars et un emprisonnement maximal d’un an, ou l’une de ces peines,
quiconque :
a) dans le
cadre de la présente loi, fait une fausse déclaration, commet une fraude ou
dissimule intentionnellement des faits essentiels;
b) obtient ou
utilise le certificat d’une autre personne en vue de se faire passer pour
elle;
c) permet
sciemment que son certificat soit utilisé par une autre personne pour se
faire passer pour lui;
d) fait le
trafic de certificats ou en a en sa possession à cette intention.
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[13]
The
following provisions of the Rules are applicable to this application:
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Application
300. This Part applies to
(a)
applications for judicial review of administrative action, including
applications under section 18.1 or 28 of the Act, unless the Court directs
under subsection 18.4(2) of the Act that the application be treated and
proceeded with as an action;
(b)
proceedings required or permitted by or under an Act of Parliament to be
brought by application, motion, originating notice of motion, originating
summons or petition or to be determined in a summary way, other than
applications under subsection 33(1) of the Marine Liability Act;
(c)
appeals under subsection 14(5) of the Citizenship Act;
(d)
appeals under section 56 of the Trade-marks Act;
(e)
references from a tribunal under rule 320;
(f)
requests under the Commercial Arbitration Code brought pursuant to subsection
324(1);
(g)
proceedings transferred to the Court under subsection 3(3) or 5(3) of the Divorce
Act; and
(h)
applications for registration, recognition or enforcement of a foreign
judgment brought under rules 327 to 334.
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Application
300.
La
présente partie s’applique :
a) aux demandes de contrôle judiciaire
de mesures administratives, y compris les demandes présentées en vertu des
articles 18.1 ou 28 de la Loi, à moins que la Cour n’ordonne, en vertu du
paragraphe 18.4(2) de la Loi, de les instruire comme des actions;
b) aux instances engagées sous le
régime d’une loi fédérale ou d’un texte d’application de celle-ci qui en
prévoit ou en autorise l’introduction par voie de demande, de requête, d’avis
de requête introductif d’instance, d’assignation introductive d’instance ou de
pétition, ou le règlement par procédure sommaire, à l’exception des demandes
faites en vertu du paragraphe 33(1) de la Loi sur la responsabilité en
matière maritime;
c) aux appels interjetés en vertu du
paragraphe 14(5) de la Loi sur la citoyenneté;
d) aux appels interjetés en vertu de
l’article 56 de la Loi sur les marques de commerce;
e) aux renvois d’un office fédéral en
vertu de la règle 320;
f) aux demandes présentées en vertu du
Code d’arbitrage commercial qui sont visées au paragraphe 324(1);
g) aux actions renvoyées à la Cour en
vertu des paragraphes 3(3) ou 5(3) de la Loi sur le divorce;
h) aux demandes pour l’enregistrement,
la reconnaissance ou l’exécution d’un jugement étranger visées aux règles 327
à 334.
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[14]
The
following provisions of the Citizenship and Immigration Canada, Citizenship
Policy Manual CP5: Residence (citizenship policy manual) are applicable to
this application:
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5.9 B - Exceptional circumstances
In accordance with established case law, an applicant may
be absent from Canada and still maintain residence for citizenship purposes in certain
exceptional circumstances.
To cite Mr Justice Pinard in the Mui case:
I agree in principle with some decisions of this Court
which, given special or exceptional circumstances, do not require physical
presence in Canada for the entire 1095 days. However, it is my view, that an
extended absence from Canada
during the minimum period of time, albeit temporary, as
in the present case, is contrary to the purpose of the residency requirements
of the Act. Indeed, the Act already allows a person who has been lawfully
admitted to Canada for permanent
residence not to reside in Canada during one of the four years
immediately preceding the date of that person’s application for Canadian
citizenship. [Emphasis
added]
Even the early Federal Court decisions on residence
recognized that absences from Canada should generally be for special and temporary purposes.
The Associate Chief Justice Thurlow, in the much-cited Papadogiorgakis
decision, seemed to view that
actual presence in Canada was required, except for short
vacations or other temporary absences such as pursuing a course of study
abroad (and always returning home at school breaks).
In assessing whether the absences of an applicant fall
within the allowable exceptions, use the following six questions as the
determinative test. These questions are those set out by Madame Justice Reed
in the Koo decision. For each question, an example is given of a circumstance
that may allow the applicant to meet the residence requirement.
1. Was the individual physically present in Canada for a long period
prior to recent absences which occurred immediately before the application
for citizenship?
Example of an allowable exception: an applicant lived
here for 3 years before
leaving Canada for a period of several months. The applicant then
returns here to permanently live in Canada and files a citizenship
application at that time.
2. Where are the applicant’s immediate family and
dependents (and extended family) resident?
Example of an allowable exception: an applicant leaves Canada for several days each
month, but her mother-in-law, her husband and her children all continue to live
in Canada while she is outside of the country.
3. Does the pattern of physical
presence in Canada indicate a returning home or merely visiting the country?
Example of an allowable exception: an applicant leaves
Canada each month for 7 or 10 days, but stays abroad at hotels where the
applicant conducts business or at the home of someone the applicant is
visiting. The applicant always returns to Canada at a home owned or rented by the
applicant.
4. What is the extent of the physical absences - if an
applicant is only a few days short of the 1,095 total it is easier to find
deemed residence than if those absences are extensive.
Example of an allowable exception: an applicant was
physically present in Canada the vast majority of the time, despite repeated
absences.
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?
Example of an allowable exception: the applicant obtains
permanent residence in Canada and is offered a job here. After beginning his
employment here, she is asked by her employer to serve abroad for one year to
help manage an important business venture. The applicant then returns here
after the assignment is completed to resume her work in Canada.
6. What is the quality of the connection with Canada: is
it more substantial than that which exists with any other country?
Example of an allowable exception: an applicant has been
spending a few months abroad, each year, to look after his elderly parents.
When in Canada, however, the applicant is involved in his work and business ventures.
He also is involved with community organizations and the vast majority of his
personal contacts (professional and social) are people who live here in Canada. Finally, the
applicant pays income tax in Canada and in no other country.
In applying this test to an application, you must decide
whether the absences of the applicant fall within the types of exceptional
circumstances. If the absences do not fall within these exceptional
circumstances, you must refer the citizenship judge’s complete file on the
applicant to Case Management Branch for possible appeal by the Minister.
Include your analysis of why the applicant does not appear to meet the
residence requirement. Keep in mind that the delay within which an appeal can
be filed is 60 days. Cases
must therefore be referred on a timely basis, or the Minister will lose the
right of appeal (see Chapter 8, "Appeals", for the procedure to
follow).
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5.9 B -
Circonstances exceptionnelles
D’après la
jurisprudence, le demandeur peut être absent du Canada et conserver son statut
de résident aux fins de la citoyenneté dans certains cas exceptionnels. Comme
le précisait M. le juge Pinard dans la décision Mui :
Je suis d’accord, en
principe, avec une certaine jurisprudence qui précise que
le demandeur n'est
pas tenu d'avoir été physiquement au Canada pendant les
1 095 jours et ce, dans
des cas spéciaux et exceptionnels. Cependant, à mon avis, une absence
trop longue du Canada, bien que temporaire, durant la période
minimale, comme
c'est le cas en l'espèce, est contraire aux exigences de la résidence établies
dans la Loi. En fait, la Loi permet déjà à une personne admise légalement au
Canada pour fins de résidence permanente de ne pas résider au Canada durant
une des quatre années qui précèdent immédiatement la date à laquelle elle a
présenté sa demande de citoyenneté. [Nos soulignés]
Même les décisions
antérieures de la Cour fédérale sur la résidence reconnaissent que des
absences du Canada devraient généralement être pour des fins spéciales et temporaires.
Le juge en chef adjoint Thurlow, dans la décision Papadogiorgakis,
souvent citée,
semblait dire que la présence réelle au Canada était requise, sauf pour de
brèves vacances ou d'autres absences temporaires comme pour suivre un cours à
l'étranger (mais en
revenant toujours à la maison durant les congés scolaires).
Pour évaluer si les
absences d'un demandeur sont conformes aux exceptions admissibles, il faut se
poser les six questions suivantes qui constituent le critère déterminant.
Ces questions ont
été établies par Mme le juge Reed dans la décision Koo. Pour chaque
question, on donne un exemple de circonstance qui permet au demandeur de satisfaire
à l'exigence concernant la résidence.
1. La personne
était-elle réellement présente au Canada pendant une longue période avant ses
absences récentes qui se sont produites immédiatement avant la
présentation de la
demande de citoyenneté?
Exemple d'une
exception admissible : le demandeur a vécu ici pendant trois ans avant de
quitter le Canada pour plusieurs mois. Il revient ensuite au Canada pour y
vivre en permanence et présente une demande de citoyenneté à ce moment-là.
2. Où résident les
personnes à charge et les membres de la famille immédiate du demandeur (et de
la famille élargie)?
Exemple d'une
exception admissible : la personne quitte le Canada pendant
plusieurs jours
chaque mois, mais sa belle-mère, son mari et ses enfants continuent de vivre
au Canada pendant qu'elle est à l'extérieur du pays.
3. Les présences
réelles du demandeur au Canada semblent-elles indiquer qu'il rentre chez lui
ou qu'il revient au pays simplement en visite?
Exemple d'une
exception admissible : le demandeur quitte le Canada tous les mois pendant
sept à dix jours, mais demeure à l’hôtel à l'étranger pour y mener des affaires
ou chez quelqu'un à qui il rend visite. Le demandeur revient toujours au Canada
à un domicile qui lui appartient ou qu'il loue.
4. Quelle est la durée
des absences réelles – s'il ne manque que quelques jours au demandeur pour
atteindre le total de 1 095, il est plus facile de conclure à une résidence présumée
que si ses absences étaient prolongées.
Exemple d'une
exception admissible : le demandeur était effectivement présent au Canada la
grande majorité du temps, en dépit d'absences répétées.
5. L'absence réelle
est-elle attribuable à une situation de toute évidence temporaire, comme
avoir un emploi de missionnaire à l'étranger, y suivre un cours dans un établissement
d'enseignement, accepter un emploi temporaire à l'étranger, accompagner
un conjoint qui a
accepté un emploi temporaire à l'étranger?
Exemple d'une
exception admissible : l'intéressée obtient la résidence permanente au Canada
et on lui offre un emploi ici. Elle commence à travailler au Canada, puis son
employeur lui demande d'aller à l'étranger pour un an afin de participer à la
gestion d'une importante entreprise commerciale. Elle revient au Canada après
son affectation pour y reprendre ses fonctions.
6. De quelle qualité
sont les rapports du demandeur avec le Canada; sont-ils plus solides que ceux
qu’il entretient avec un autre pays?
Exemple d'une
exception admissible : le demandeur passe quelques mois à
l'étranger, chaque
année, pour s'occuper de ses parents âgés. Lorsqu'il est au Canada,
cependant, il travaille et s'occupe de ses affaires. Il est également actif auprès
d'organismes communautaires et la plupart de ses contacts personnels
(professionnels et
sociaux) se font avec des personnes qui vivent ici au Canada.
Enfin, le demandeur
paie des impôts sur le revenu uniquement au Canada.
Si vous appliquez le
critère de ces 6 questions à une demande, vous devez décider si les absences
du demandeur rentrent dans la catégorie des circonstances exceptionnelles.
Si tel n'est pas le
cas, vous devez renvoyer le dossier complet de la
décision du juge de
la citoyenneté concernant le demandeur à la Direction générale du règlement
des cas pour un appel possible du Ministre. Il faut inclure votre
analyse des
motifs pour lesquels le demandeur ne semble pas répondre au critère de
résidence. N'oubliez pas que le délai d'appel est de 60 jours. Les cas
doivent donc être déférés en temps opportun, sinon le Ministre perdra son
droit d'appel (voir au chapitre 8, « Appels »-, la procédure à suivre).
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STANDARD OF REVIEW
[15]
The
Applicant submits that the question of whether a person has met the residency
requirements under the Act is a question of mixed law and fact, so the
appropriate standard of review is reasonableness: Dunsmuir v. New Brunswick 2008
SCC 9 at paragraphs 44, 47, 48 and 53; Canada (Minister of Citizenship and
Immigration) v. Mueller 2005 FC 227 at paragraph 4; Canada (Minister of
Citizenship and Immigration) v. Wall 2005 FC 110 at paragraph 21; Zeng
v. Canada (Minister of Citizenship and Immigration) 2004 FC 1752 at
paragraph 7-10; Chen v. Canada (Minister of Citizenship and Immigration)
2004 FC 1693 at paragraph 5l Rasaei v. Canada (Minister of Citizenship and
Immigration) 2004 FC 1688 at paragraph 4 and Gunnarsson v. Canada
(Minister of Citizenship and Immigration) 2004 FC 1592 at paragraphs 18-22.
[16]
The
Respondent also submits that the standard of review is applicable to this
application is discussed in Haj-Kamali v. Canada (Minister of
Citizenship and Immigration) 2007 FC 102, at paragraphs 7-10:
7 Both
parties accept that the standard of review for pure factual findings of the Citizenship Court (e.g. the duration of
Mr. Haj-Kamali's absences from Canada) is patent unreasonableness. This is in accordance with a
number of authorities from this Court and I would specifically adopt the
analysis by Justice Richard Mosley in Huang v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 1078,
2005 FC 861, where
he held in paragraph 10:
[10] However, for purely factual findings the respondent
submits the standard should be patent unreasonableness. The Citizenship Judge
as the finder of fact has access to the original documents and an opportunity
to discuss the relevant facts with the applicant. On citizenship appeals, this
Court is a Court of appeal and should not disturb the findings unless they are
patently unreasonable or demonstrate palpable and overriding error: Housen v.
Nikolaisen, [2002] 2 S.C.R. 235.
8 The application of the facts to the
law concerning residency under the Act is, of course, a matter of mixed fact
and law for which the standard of review is reasonableness simpliciter.
Here I adopt the analysis of Justice Mosley in Zeng v. Canada (Minister of
Citizenship and Immigration) [2004] F.C.J. No. 2134,
2004 FC 1752 where
he held at paragraphs 9 and 10 as follows:
9 Applying a pragmatic and functional analysis to the
review of the decisions of citizenship judges respecting the residency
requirement of the Act, several judges of this court have recently concluded
that a more appropriate standard would be reasonableness simpliciter: Chen
v. Canada (Minister of Citizenship and Immigration) 2004 FC 1693, [2004] F.C.J. No. 2069;
Rasaei v. Canada (Minister of Citizenship and Immigration) 2004 FC 1688, [2004] F.C.J. No. 2051;
Gunnarson v. Canada (Minister of Citizenship and Immigration) 2004 FC 1592, [2004] F.C.J. No. 1913;
Canada (Minister of Citizenship and Immigration) v. Chen 2004 FC 848, [2004] F.C.J. No. 1040;
Canada (Minister of Citizenship and Immigration) v. Fu 2004 FC 60, [2004] F.C.J. No. 88;
Canada (Minister of Citizenship and Immigration) v. Chang 2003 FC 1472, [2003] F.C.J. No. 1871.
10 I agree that the question of whether a person has met
the residency requirement under the Act is a question of mixed law and fact and
that Citizenship Judges are owed some deference by virtue of their special
degree of knowledge and experience. Accordingly, I accept that the appropriate
standard of review is reasonableness simpliciter and that, as stated by Snider
J. in Chen, supra at paragraph 5, "as long as there is a
demonstrated understanding of the case law and appreciation of the facts and
their application to the statutory test, deference should be shown."
9 It was argued on behalf of Mr.
Haj-Kamali that the Citizenship Court made two principal errors in its assessment of his
application for citizenship. The first of these was a factual error in the
calculation of Mr. Haj-Kamali's absences from Canada. It was submitted that this error led
the Court to overstate the duration of Mr. Haj-Kamali's absences by 136 days
out of the shortfall of 307 days which the Court found were necessary to
satisfy the strict numerical threshold for residency.
10 The
second error attributed to the Citizenship Court concerned its adoption and application of the legal test
for residency under s.5(1) of the Act. Mr. Haj-Kamali contends that, had the Citizenship Court not made an erroneous
finding with respect to the time he remained outside of Canada, it might have
concluded that he had met the statutory residency requirement. This issue
necessarily turns on which of the tests for determining residency was used by
the Citizenship
Court in
assessing Mr. Haj-Kamali's application. If the Citizenship Court adopted the
strict or literal approach for residency as reflected in decisions like Re
Pourghasemi (1993), 62 F.T.R. 122,
[1993] F.C.J. No. 232,
the alleged factual error by the Citizenship Court would be of no legal
significance. This would be so because Mr. Haj-Kamali would still not have
established an actual physical presence in Canada for 1,075 days within the four years
preceding his citizenship application. On the other hand, if the Citizenship Court adopted one of the
more flexible or liberal tests for residency as reflected in cases like Re
Koo, above, and Re Papadogiorgakis, above, it is argued that its
alleged factual error might have made a difference to the outcome of the case.
[17]
The
Respondent submits that the standard of review should be reasonableness simpliciter,
as the error alleged is not one of law, but rather mixed law and fact. In
light of Dunsmuir, however, it should be the reasonableness
standard.
[18]
In Dunsmuir, the Supreme
Court of Canada recognized that, although the reasonableness simpliciter
and patent unreasonableness standards are theoretically different, “the analytical
problems that arise in trying to apply the different standards undercut any
conceptual usefulness created by the inherently greater flexibility of having
multiple standards of review”: Dunsmuir at paragraph 44.
Consequently, the Supreme Court of Canada held that the two reasonableness
standards should be collapsed into a single form of “reasonableness” review.
[19]
The Supreme Court of Canada in Dunsmuir also held that the
standard of review analysis need not be conducted in every instance. Instead,
where the standard of review applicable to the particular question before the
court is well-settled by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless must the reviewing
court undertake a consideration of the four factors comprising the standard of
review analysis.
[20]
Thus, in light of the Supreme Court of Canada’s decision in Dunsmuir and
the previous jurisprudence of this Court, I find the standard of review
applicable to the issues raised to be reasonableness. When reviewing a decision
on the standard of reasonableness, the analysis will be concerned with “the
existence of justification, transparency and intelligibility within the
decision-making process [and also with] whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law”: Dunsmuir at paragraph 47. Put another way,
the Court should only intervene if the Decision was unreasonable in the sense that it falls
outside the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law.”
ARGUMENTS
The
Applicant
[21]
The
Applicant submits that the Respondent does not meet the requisite number of
days of residence. The Judge also failed to take into account that the
Respondent made significant misrepresentations in relation to absences from Canada, which is an
offence under the Act. The Applicant also alleges that the Judge failed to
properly apply the Koo residency test to determine whether, despite the
Respondent’s shortfalls, the Respondent had established that Canada was the
country where the Respondent regularly, normally and customarily lived. The
Applicant submits that the Respondent failed to meet all of the six criteria
specified in Koo. Therefore, the Judge erred and unreasonably found the
Respondent to have met the residency requirements.
Undeclared
Absences
[22]
The
Applicant submits that the Judge clearly erred in law in failing to consider
the Respondent’s violations or section 29(2)(a) of the Act, which makes
it an offence under the Act to make false representations, commit fraud and
knowingly conceal material circumstances. In this case, the Respondent signed
an application that did not have a complete list of his absences and which
listed his children’s residence as Canada. In submissions to the
Judge, the Respondent stated that a secretary at his investment firm had filled
out the form for him and his wife. However, the Applicant alleges that the
Respondent signed his application and did not have the secretary complete
section 12 of the application (where an applicant is required to indicate
whether someone assisted them with the application). Hence, he made
misrepresentations. The Judge’s failure to deal with the misrepresentations
constitutes an error of law.
The Residency
Requirement and the Koo Test
[23]
The
Applicant also submits that the Judge did not act in accordance with the law in
approving the Respondent’s application for citizenship and in finding him to
have satisfied section 5(1)(c) of the Act, which requires that those
applying for citizenship establish “the accumulation of at least three years of
residence in Canada, within the four years immediately preceding the date of
the application.”
[24]
The
allowance of one year’s absence during the four-year period under section 5(1)(c)
of the Act creates an inference that attendance in Canada during the other three
years must be substantial: Re Pourghasemi, [1993] F.C.J. No. 232
(F.C.T.D.) (Pourghasemi) at paragraph 6 and Koo at paragraph 9.
[25]
The
Applicant cites and relies upon Pourghasemi at paragraphs 3 and 6:
3 It
is clear that the purpose of paragraph 5(1)(c) is to insure that everyone who
is granted precious Canadian citizenship has become, or at least has been
compulsorily presented with the everyday opportunity to become, "Canadianized".
This happens by "rubbing elbows" with Canadians in shopping malls,
corner stores, libraries, concert halls, auto repair shops, pubs, cabarets,
elevators, churches, synagogues, mosques and temples - in a word wherever one
can meet and converse with Canadians - during the prescribed three years. One
can observe Canadian society for all its virtues, decadence, values, dangers
and freedoms, just as it is. That is little enough time in which to become
Canadianized. If a citizenship candidate misses that qualifying experience,
then Canadian citizenship can be conferred, in effect, on a person who is still
a foreigner in experience, social adaptation, and often in thought and outlook.
If the criterion be applied to some citizenship candidates, it ought to apply
to all. So, indeed, it was applied by Madam Justice Reed in Re Koo, T-20-92, on
December 3, 1992 [Please see [1992] F.C.J. No. 1107.],
in different factual circumstances, of course.
…
6 So those who
would throw in their lot with Canadians by becoming citizens must first throw
in their lot with Canadians by residing among Canadians, in Canada, during three of the preceding four years, in order to
Canadianize themselves. It is not something one can do while abroad, for
Canadian life and society exist only in Canada and nowhere else.
[26]
The
Applicant submits that this Court has interpreted the test for residency in
different ways. However, the Court has held that no particular approach needs
to be followed in Canada (Minister of
Citizenship and Immigration) v. Mindich, [1999] F.C.J. No. 978 (F.C.T.D.)
at paragraph 9. See also: Akan v. Canada (Minister of
Citizenship and Immigration, [1999] F.C.J. No. 991 (F.C.T.D.) at
paragraphs 9 and 14.
[27]
The
Applicant submits that the most regularly applied version of the test is set
out in Koo, which determines whether, despite the fact that an
applicant’s physical presence in Canada may fall short of the required 3 years,
he or she has established that Canada is a country where he/she “regularly,
normally or customarily lives.” The Applicant submits that the Judge erred in
concluding that the Respondent met the requirements of section 5(1)(a)
of the Act for falling short of the required 1,095 days required to obtain
citizenship.
Koo Test Findings
Unreasonable
[28]
The
Applicant submits that the Judge erred in law in concluding that the Respondent
qualified for citizenship. The application was approved on the basis of the Koo
test. The Judge’s reasoning is “scant” and the conclusions that he reached
were not reasonable given the nature of the evidence before him. Due to the
Respondent’s shortfall in the required number of days in Canada, the Judge was
required to consider the six factors specified in Koo to determine
whether Canada is the
country where the Respondent regularly, normally or customarily lives. The
Judge’s analysis is inadequate.
Where are the Respondent’s immediate
family and dependants (and extended family) resident?
[29]
The
Respondent’s immediate family, namely his children, do not reside in Canada and
are being schooled in Pakistan. The Judge noted that
the Respondent’s children live and are schooled in Pakistan even though
the Respondent claims they were home schooled in Canada and study abroad. The
Judge also noted that the children are not educated in Canada because their
grandfather wants them schooled in Pakistan. There is no firm plan
to have the children reside in or attend school in Canada. The Respondent
stated that he did not want to move his children around and wanted to keep them
focused. The Respondent’s immediate family residences are split between Canada and Pakistan and,
therefore, they are not a strong indicator as to residence.
Does the pattern of physical presence in
Canada indicate a returning home or merely visiting the country?
[30]
The
Applicant alleges that the Respondent is using Canada not as a
permanent residence but as a stopover for business interests and health care.
The Judge indicated that the family seems to have one foot in Canada and the
other in Pakistan. The Judge
erred in his analysis related to Koo. This factor does not weigh
in the Respondent’s favour.
What is the extent of the physical
absences from Canada—if an applicant is only a few
days short of the 1,095 day total is it easier to find deemed residence than if
those absences are extensive?
[31]
The
Applicant submits that the Judge thought the Respondent’s short fall in the
days present in Canada during the relevant period was significant.
Is the physical absence caused by a
clearly temporary situation such as employment as a missionary, following a
course of study abroad as a student, accepting temporary employment abroad or
accompanying a spouse who has accepted employment abroad?
[32]
The
Applicant submits that the Judge did not properly address this factor to
determine whether the Respondent’s absences from Canada were
temporary in nature or should be treated as residence within Canada. The
reasons only indicate that the Respondent’s absences from Canada were
“continuous but short.” The Applicant submits that this is not an accurate
description of the absences. While some of the absences were for a short period
of time (7-15 days), many were for extensive periods of time ranging from
33-119 days. The two-word analysis of the Respondent’s absences is inadequate
given the concerns with respect to his overlapping passports, undeclared
absences and the length and frequency of absences over the period prior to
applying for citizenship.
[33]
The
Applicant submits that the Respondent’s absences from Canada cannot be
described as temporary in nature. Based on the Judge’s notes, no thought was
given to this factor even though the Koo test requires it. The Applicant
cites section 5.9(b) of the citizenship policy manual which states that a judge
must determine if the physical absence is caused by a clearly temporary
situation. The situation of the Respondent not meeting the residence
requirements is not a temporary situation given the fact that he has little
intention of bringing his children to reside with him in Canada. The
Applicant alleges that Canada is “merely a place to stop and do business
and not to establish themselves permanently.”
[34]
The
Applicant cites and relies upon Re Leung v. Canada (Minister of Citizenship
and Immigration), [1991] F.C.J. No. 160 (Re Leung) at paragraph 32:
I believe it is fair to say that she is very hard-working and
versatile and alert to business opportunities in the public relations field
wherever they may be found. The nature of her activities in promoting closer
ties between the Chinese and Canada of necessity requires spending much time in the Orient. Many
Canadian citizens, whether Canadian born or naturalized must spend a large part
of their time abroad in connection with their businesses, and this is their
choice. An applicant for citizenship, however, does not have such freedom
because of the provisions of section 5(1) of the Act.
[35]
The
Applicant also cites and relies upon Re Hsu, [1999] F.C.J. No. 578
(F.C.T.D.) at paragraph 31:
31 Mr.
Hsu's counsel made much of the fact that Mr. Hsu always intended to return to Canada because his family and
children were here and that he had sold his house and brought all personal
belongings to Canada. Intention alone is not
sufficient. Residence is also a matter of objective fact.
[36]
The
Applicant says that an intention to stay in Canada or return to Canada is not
sufficient and that the Respondent must establish that Canada is his principal
abode. This was made clear in Re Leung at paragraphs 37-38:
I have no doubt that with the
increased development of her business in Canada since the 1988
citizenship application, and conversely the diminution of her activities in
Hong Kong, Applicant will spend more time in Canada, nor do I have any doubt
that it is her intention to make Canada her home. If she applies again in two
years she will by then most probably have the necessary residential
requirements, but at present I believe the law must be applied.
It is
tempting to say as I and others have in the past that she will make such a
desirable citizen that she should be granted citizenship now without being
required to wait; but that would be failing to apply the law on the facts of
this case. There is fortunately no immigration problem. She remains a landed
immigrant and there is little doubt that her returning resident visas will continue
to be renewed, so she will not be seriously inconvenienced in her work or her
life, nor prevented from making necessary business departures from the country
as required from time to time. To attain citizenship however she must cease to
have an ambivalent relationship with Canada and establish that her principal
abode is here by spending more time here than on visits to the Orient in
connection with her Canadian business activities as a public relations
consultant here.
What
is the quality of the connection with Canada: is it more substantial than that
which exists in any other country?
[37]
The
Applicant submits that the Judge took no time to review the materials which
raise serious questions about the Respondent’s connection and ties to Canada. When the
credit card statements and bank statements are examined, they leave very
significant doubt as to the time the Respondent has been in Canada. Maintaining
a home and having bills debited from your account on a monthly basis does not,
in the Applicant’s submission, demonstrate time in the country or a connection.
The Applicant notes the following about the Respondent’s financial information:
1)
The
CIBC personal bank accounts indicate that most of the transactions are for
fees, pre-authorized debits, cheques, interest, telephone transfers, internet
transfers and a scant number of deposits. None of these transactions require someone
to be present in Canada;
2)
There
are only 10 examples of actual transactions that would have required the
Respondents to have actually been present in Canada and these transactions took
place during the relevant 4 year (June 2002-June 2006) period prior to applying
for citizenship;
3)
For
the Respondent’s Royal Bank accounts there are only 8 transactions that would
have required his presence in Canada during the relevant period;
4)
The
business accounts are not an indicator of a substantial connection on the part
of the Respondents as any employee could have conducted the transactions on the
part of the business and there is no evidence that the Respondent was involved;
5)
Finally,
when reviewing the credit card activity it is clear that a regular amount of
the activity is on-line or overseas. As well, this is a questionable
demonstration of residence as the statements were not provided for all months
during the relevant period.
[38]
The
Applicant submits that the Judge erred in finding a substantial and qualitative
connection to Canada on the basis
of the financial information. The Judge did not review any of the documents
individually and so ignored material evidence: Canada (Minister of
Citizenship and Immigration) v. Rahman, [2006] I.A.D.D. No. 1454 (IRB);
Koo; Pourghasemi; Dai v. Canada (Minister of Citizenship and Immigration), [1999]
F.C.J. No. 1033 (F.C.T.D.) at paragraphs 13-14; Hsu at paragraph 30 and Agha
(Re), [1999] F.C.J. No. 577 (F.C.T.D.).
[39]
The
Applicant concludes by stating that the Judge failed to take into account that
the Respondent made significant misrepresentations in relation to his absences
from Canada and committed an offence under the Act. The Judge failed to
properly apply the Koo residency test to determine whether, despite the
shortfall in the number of days, the Respondent had established that Canada is the
country where he regularly, normally or customarily lived. The Applicant
submits that the Respondent failed to meet all of the six criteria specified in
Koo. The Judge erred and unreasonably found the Respondent to have met
the residency requirements. Therefore, the appeal should be allowed.
The
Respondent
[40]
The
Respondent submits that the findings as to whether or not the Respondent is a
person described in section 29(2)(a) of the Act is a finding of fact,
which is within the Judge’s jurisdiction to make. It was clear from the reasons
that the Judge was satisfied with the Respondent’s explanation of the
discrepancies in his application. Therefore, the Judge did not err in this
regard.
[41]
The
Respondent notes that the Decision is reasonable and the Applicant is simply
dissatisfied with the outcome. The Judge, in the Respondent’s view, gave full
consideration to the relevant facts and arrived at a reasonable Decision which
was within the Judge’s jurisdiction to make. The Applicant has failed to
demonstrate an error in this aspect as well.
[42]
The
Respondent says that the Act should be interpreted liberally as per Canada
(Secretary of State v. Man, [1986] F.C.J. No. 499 (F.C.T.D.) which
states as follows at paragraph 7:
…I
must keep in mind that in accordance with the dictum of Walsh J. in the matter
of Re Kleifges (1978), 84 D.L.R. (3d) 183,
the provisions of the Citizenship Act should be given a liberal interpretation
especially when, as in so many cases, an applicant would otherwise make an
excellent citizen…
[43]
The
Respondent says that such a liberal interpretation has been supported by the Court
since Re Papadogiorgakis, [1978] 2 F.C. 208 (F.C.T.D.) at 214, which is
still applied: Ho (Re), [1997] F.C.J. No. 1747 (F.C.T.D.).
[44]
The
Respondent cites and relies upon Canada (Secretary of State) v.
Abi-Zeid,
[1983] F.C.J. No. 67 (F.C.T.D.) at paragraph 4:
The fundamental principles which emerge from decisions in this
area are that it is not necessary to be physically and continuously present in Canada throughout the required
period. However, a person who is physically absent must first, before his
absence, have established residence in Canada, and must then in some way
continue his residence in Canada while he is absent abroad.
[45]
The
Respondent notes that this Court has found that, in the correct circumstances,
a person’s residency may be established for a short period of time (even a four
day period could suffice) where the family unit has otherwise established
residence: Re Cheung, [1990] F.C.J. No. 11 (F.C.T.D.) and Lau (Re), [1990]
F.C.J. No. 143 (F.C.T.D.).
[46]
The
Respondent contends that the Decision was within the purview of the Judge to
make and that the only requirement was that reasons be provided and for him to
identify that he applied the test. The Respondent again relies on Haj-Kamali
at paragraphs 10-16.
[47]
The
Respondent notes that the Judge did provide reasons and identified the Koo
test. The Respondent cites and relies upon Canada (Minister of
Citizenship and Immigration) v. Yan 2004 FC 864 (F.C.) at
paragraph 9:
9 This Court has set out
a number of different residency tests with respect to subsection 5(1)(c) of the
Act. In this case, the Citizenship Judge applied the test in Koo, supra,
wherein Madam Justice Reed set out a flexible six-part test for residency, that
is not dependent solely on how many days an applicant has been physically
present in Canada. At paragraph 10, Reed J. states:
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?
[48]
The
Respondent concludes by stating that the Judge applied the Koo test
properly and the Decision should stand as reasonable and correct in law.
ANALYSIS
[49]
First
of all, I am satisfied that, when the Decision as a whole is read, the
Citizenship Judge investigated the undeclared absences and concluded, on the
facts, that honest mistakes had been made that did not amount to
misrepresentations under subsection 29(2)(a) of the Citizenship Act.
This was a reasonable conclusion and the Court should not interfere on this
ground.
[50]
Where
the Decision is problematic is in the assessment of the Koo factors and
the reasoning used to reach the ultimate conclusion that the Applicant
qualified for citizenship.
[51]
The
main problem is that the reasons and the notes are too scant and the
connections between the evidence and the conclusions are not discernable. In
fact, it is sometimes difficult to ascertain what the Judge’s conclusions on
some of the factors are. The end result is that it is entirely unclear if
material evidence was overlooked and how, in the end, the Judge assessed the Koo
factors to determine that the Applicant had centralized his existence in
Canada.
[52]
In
applying the Koo test, the Citizenship Judge appears to have committed
several errors that render the Decision unreasonable. The principal errors are
as follows:
a)
The
evidence does not support the conclusion that the Respondent’s immediate family
and dependants are “Here and there – spirit.” The immediate family are in Pakistan and appear
to live there almost exclusively;
b)
The
Judge decided that the Respondent’s absences from Canada were
“continuous but short,” while the evidence is clear that some of the absences
were lengthy in nature. The Judge does not really address the length or true
nature of the absences;
c)
The
Judge based his assessment of the quality of connection to Canada on bank and
credit card statements as well as investments in Canada while admitting that
“it is not possible to determine from the evidence his assets and commitments
abroad.” This suggests that a full and proper assessment of this factor was not
done;
d)
It
is difficult to see how the evidence suggests a pattern of physical presence in
Canada that indicates a returning home. The Judge said that “he has one foot
there and one here.”
[53]
In
the end, the Decision as written does not create the impression that the Judge
properly addressed the Koo factors before arriving at his final
conclusion. I am not saying that the Applicant does not qualify for
citizenship, but a full and proper assessment needs to be done that reasonably
satisfies the governing jurisprudence.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
application is allowed, The Decision of the Citizenship Judge is set aside and
the matter is returned for reconsideration by a different Citizenship Judge.
“James
Russell”
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