Date: 20090527
Docket: T-1474-08
Citation: 2009 FC 549
Ottawa, Ontario, May 27,
2009
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Applicant
and
FERAS
SADEK and LAMIS BARAKHE
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The Minister of Citizenship and Immigration appeals the decision of a
Citizenship Judge granting citizenship to Feras Sadek and Lamis Barakhe.
According to the Minister, the Judge erred in finding that the couple met the
residency requirements of paragraph 5(1)(c) of the of the Citizenship Act, R.S.C. 1985, c. C-29.
[2]
For the reasons that follow, I am satisfied that the Citizenship Judge
did not err as alleged. As a consequence, the appeal will be dismissed.
Background
[3]
The respondents are citizens of Syria. They came to Canada with their
two children on April 12, 2003, and became permanent residents. They went back
to Syria two weeks later in order to settle their affairs in that country, and
returned to Canada on September 11, 2003. The family then purchased a home in Calgary.
[4]
Unable to obtain employment in Canada, Mr. Sadek moved to Yemen on July
5, 2004, to work for a Canadian company under a one year term contract. While
in Yemen, Mr. Sadek lived in staff accommodation, was paid in Canadian dollars,
and had his Canadian income tax deducted from his pay. Ms. Barakhe and the
children remained in Canada.
[5]
Mr. Sadek returned to Calgary four times during his year in Yemen to
visit his family.
[6]
On July 31, 2005, Mr. Sadek took up new employment, this time in Syria.
Once again, he was working for a Canadian company on a one-year, fixed-term
contract, which was governed by the law of British Columbia. This time, Mr.
Sadek’s family accompanied him. Mr. Sadek’s compensation package with this
company included a round-trip for Mr. Sadek and his family members to Calgary.
[7]
While the family was in Syria, they rented out their home in Calgary.
Accommodation for the family in Syria was provided by Mr. Sadek’s Canadian
employer, and the family did not acquire any property in Syria.
[8]
Ms. Barakhe and the children returned to Canada on July 31, 2006, and
Mr. Sadek returned on August 14, 2006. Since that time, Mr. Sadek has been
working in Calgary, Ms. Barakhe has been taking college courses, and the
children have been attending school. The couple has also acquired additional
real estate in Calgary, and have accumulated RRSPs and RESPs.
[9]
Ms. Barakhe and Mr. Sadek signed their applications for citizenship on
October 12, 2006. They admit that they were not in Canada for the required
1095 days. The Citizenship Judge found that Mr. Sadek had been absent from
Canada for 844 days in the four years prior to his application, whereas Ms.
Barakhe had been absent from Canada for 674 days.
Analysis
[10]
The determination by a Citizenship Judge that an individual meets the
residency requirements of the Citizenship Act is a question of mixed
fact and law and is reviewable on the standard of reasonableness: see Canada
(Minister of Citizenship and Immigration) v. Farag, 2009 FC 299, at para. 18.
[11]
Different judges in this Court have taken different approaches to how
the residency requirement in the Citizenship Act should be interpreted.
A Citizenship Judge is entitled to adopt any of these various approaches in
determining whether a particular applicant has satisfied the residency
requirements of the Act.
[12]
In this case, the Citizenship Judge followed the approach advocated in Re
Koo, [1993] 1 F.C. 286. In Re Koo, Justice Reed held that physical
presence in Canada is not required in order to be able to satisfy the residency
test set out in the Citizenship Act. Rather, the test should be
formulated as whether the applicant “regularly, normally or customarily lives”
in Canada. Put another way, the question is whether the applicant has
centralized his or her mode of existence in Canada.
[13]
The Minister argues that the Citizenship Judge erred by failing to make
an initial determination as to whether the respondents had established
residency in Canada, prior to evaluating the nature of their absences from this
country. In this regard, the Minister relies on the decision in Farag,
previously cited, which adopts the reasoning of Justice Layden-Stevenson in Goudimenko
v. Canada (Minister of Citizenship and Immigration), 2002 FCT 447, where she stated that:
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. Canada (Secretary
of State) v. Yu (1995), 31 Imm. L.R. (2d) 248 (F.C.T.D.); Re
Papadorgiorgakis, supra; Re Koo, supra; Re Choi, [1997]
F.C.J. No. 740 (T.D.). 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. [at para. 13]
[14]
In his brief reasons, the Citizenship Judge found that Mr. Sadek had
established “roots” in Canada. The Judge went on to note that although Mr.
Sadek’s employment had initially required him to work outside of Canada, his
absences from Canada were temporary in nature, and that he had maintained his
“roots” in Canada during his absences.
[15]
While it would have been preferable if the Citizenship Judge had used
more precise language, I am satisfied that a threshold finding was made that
Mr. Sadek had established residency in Canada prior to leaving the country to
work offshore, and that this finding was reasonable.
[16]
The Citizenship Judge was also clearly aware of Mr. Sadek’s significant
periods of absence from Canada. The finding that Mr. Sadek’s absences from Canada
were temporary in nature is also reasonable, in light of the evidence relating
to the temporal limitations on his overseas work arrangements, the maintaining
of the family home in Calgary during his absences, and his conduct in returning
to Canada on a regular basis.
[17]
The Citizenship Judge’s reasons with respect to Ms. Barakhe are even
sparser than they were for Mr. Sadek. Nevertheless, it is clear from the
reasons that the Citizenship Judge was well aware of Ms. Barakhe’s prolonged
absences from Canada, including the fact that she had spent approximately one
year with her husband in Syria.
[18]
While the Citizenship Judge’s language with respect to Ms. Barakhe’s
establishment of residency in Canada is not as clear as one would have liked, I
find that a fair reading of the reasons as a whole leads to the conclusion that
the Citizenship Judge was satisfied that Ms. Barakhe and her children had
established residence in Canada prior to travelling overseas. It is quite
clear from the reasons that the Citizenship Judge was satisfied that Ms.
Barakhe’s absences were temporary in nature.
[19]
Thus, the Citizenship Judge’s conclusion that Ms. Barakhe met the
residency requirements of the Citizenship Act was one that was
reasonably open to him on the record before him.
Conclusion
[20]
For these reasons, the decision to grant citizenship to the respondents
was one that falls within the range of possible acceptable
outcomes that are defensible in light of the facts and the law: see Dunsmuir v. New Brunswick, 2008 SCC 9, at paragraph 47. As a consequence, the Minister’s
appeal is dismissed.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the appeal is dismissed.
“Anne
Mactavish”
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