Date: 20090622
Docket: T-2021-08
Citation: 2009 FC 653
Toronto, Ontario, June 22,
2009
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
RAJAN AGARWAL
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Minister of Citizenship and Immigration, pursuant to subsection 14(5) of the Citizenship
Act, R.S.C. 1985, c. C-29, appeals the decision of Citizenship Judge
Normand Allaire, dated October 31, 2008, granting the respondent’s application
for Canadian citizenship. The Minister asks that the decision be set aside. For
the reasons that follow, this appeal is allowed.
I. Background
[2]
Rajan Agarwal, an Indian national, acquired status as a Canadian permanent
resident on August 2, 2000. He filed an application for Canadian Citizenship
four years later, on August 1, 2004. For reasons that are not evident in the
record, the citizenship application was apparently not examined by the
applicant until 2008. The application was referred to a hearing before a
Citizenship Judge owing to concerns as to whether the residency requirements
established in the Citizenship Act were met.
[3]
Subsection
5(1)(c) of the Citizenship Act requires that would-be citizens
accumulate three years of residence in Canada in the four years immediately
preceding the filing of an application for citizenship. Rajan Agarwal was
absent from Canada for 753 days in that relevant timeframe.
[4]
The
circumstances of the respondent’s absence from Canada may be
summarized as follows. Although he had practiced as a radiologist in India prior to
coming to Canada, he could not practice medicine in Toronto without
first satisfying Canadian licensing requirements for foreign-trained
physicians. He therefore attended the Kaplan Educational Centre in Toronto while
working part-time, and sat the required examinations in 2001. Although he was
successful on his tests, he was unable to secure a radiology residency in Canada. He did
find such a position at Wyckoff Heights Medical Center in Brooklyn, New York and he left Canada to take up
that position on July 1, 2002. He subsequently continued his medical studies at
SUNY Downstate Medical Center in Brooklyn, New York from July 1, 2003 to June 30, 2004. He continued his
medical residency training, specialist and internship program at Saint Barnabas
Medical Centre in Livingston, New Jersey from July 1, 2004 to
June 30, 2007. On June 6, 2007 he was certified in Diagnostic Radiology. He then
continued his studies in the specialty of neuroradiology from July 1, 2007 to
June 30, 2008 at the Yale-New Haven Medical Centre. At the time of his hearing
before the Citizenship Judge he was completing the practical requirements of
his Fellowship at the Houston V.A. Medical Centre and was expected to complete
it at the end of December 2008.
[5]
The
record indicates that Rajan Agarwal was certified by the American Board of
Radiology on June 6, 2007, and that his wife and child, who was born in the United
States of America in 2003, are Canadian citizens. At the hearing before the
Citizenship Judge, the applicant explained that he intends to establish a
practice in Toronto or Mississauga, where his wife’s extended family reside,
upon completion of his course of study.
[6]
The following passages from the Citizenship Judge’s reasons reveal the
considerations that lead him to grant Dr. Agarwal’s application:
The applicant’s continuous course of study has relevance to his
citizenship application and residence in Canada
obligations.
…
At the age of 40, the applicant can just about see the light at the end of
his long “educational” tunnel. I use this analogy because medical education is
not a short and self directed path. Requirements such as internship, rotation
location and hours of work are not often left to the individual’s choice. They
are prescribed and arranged for by the medical institution overseeing the
medical programs and stringent time frames must be observed.
…
In Papadogiorgakis, 1978 2 F.C. 208, Thurlow A.C.J. established the
principal that full-time physical presence in Canada is not an
essential residential requirement. Furthermore, a person with an established
home in Canada does not cease to be a resident when he leaves for
temporary purposes, whether on business or vacation, or to pursue a course of
study.
I am satisfied, based on the information provided at the hearing and the
evidence contained in his file that the applicant established himself in Canada between
his landing date of August 2, 2000 and July 1, 2002, living in Canada continuously
during this time. His only absence during his relevant period, 753 days to the
United States, is for the sole purpose of pursuing a course of study as a
radiologist, an opportunity not afforded / not available to him in Canada.
It is noted that the applicant, in the strictness (sic) interpretation,
has been more out of Canada (753 days) than in Canada (706 days)
during his relevant period, however this is solely to pursue a course of study.
It is also noted that the applicant’s course of study to obtain the
designation of Fellow, in neuro-radiology has required a continuous course of
study from July 1, 2002 to December 2008. Given my knowledge of medical
education requirements and the applicant’s expressed intention to return to Canada, I consider
this time away from Canada as a temporary absence. The applicant is extremely
concerned that he may not have his permanent residence status renewed because
he has been unable to fulfill the requirement of 2 years out of 5 years stay in
Canada.
…
Given the nature and length of the applicant’s course of study, the issue
of maintaining his connection with Canada during his medical studies is in my
opinion a moot point at this time since the applicant is still pursuing, albeit
almost completed the course of study which required him to absent himself from
Canada on an almost fulltime basis.
…
The applicant’s expressed desire is to become a Canadian citizen, return
to Canada with his Canadian wife and child and serve Canada as a
medical specialist in the filed of neurological radiology. Given the shortage
of physicians in Canada and more so in the specialist categories, the applicant
would obtain immediate employment in Canada. But, first he must
become a Canadian citizen.
For these reasons and following the jurisprudence cited earlier, I
consider the absence of 706 days during the period of July 1, 2002 to August 1,
2004 for the sole purpose of pursuing a course of study as days of residence in
Canada since the applicant had clearly established himself in Canada before
this period.
II. Issue
[7]
The applicant submits that that sole issue is whether the Citizenship
Judge erred in finding that the respondent had satisfied the requirement
prescribed in subsection 5(1)(c) of the Citizenship Act that within the four
years immediately preceding the date of his application, he had accumulated at
least three years of residence in Canada.
III. Analysis
[8]
The applicant submits that the Citizenship Judge erred in finding that the
respondent had satisfied the residency requirement prescribed at paragraph
5(1)(c) of the Citizenship Act. In her memorandum of fact and law,
counsel for the Minister writes that “physical presence is an important,
relevant and crucial factor in determining one’s residence” and that “having
missed the minimum residency requirements by such a significant margin [389
days], the Respondent was not yet entitled to Canadian citizenship.”
[9]
The applicant submits that the Papadogiorgakis decision relied on
by the Citizenship Judge is distinguishable. Mr. Papadogiorgakis maintained a
residence in Canada during his physical absence from Canada to attend
university in the U.S.A., worked in Canada during his summers off, kept his
personal property at his Canadian residence while studying, and returned at frequent
intervals for weekends, and for the Christmas and summer breaks. Counsel
contrasts Mr. Papadogiorgakis’ situation with that of the respondent, who only
returned to Canada once for a 10-day visit during his 25 month period of
absence, has not worked in Canada since he began his studies in the United
States, and has maintained no connection to Canada during his
absence. Counsel objects to the characterization of Dr. Agarwal’s absence from
Canada as “temporary” given that it had reached some 6 years at the time of
hearing, and refers to a “lack of evidence” that Dr. Agarwal has maintained any
connection to Canada during this entire period of absence, which is now nearly
seven years.
[10]
Counsel for the Minister further submits that there was clear evidence before
the Citizenship Judge that Dr. Agarwal, as early as 2004, might not have
qualified to maintain his status as a permanent resident given his absence from
the country. That citizenship could be granted to someone who might have failed
to maintain his status as a permanent resident is, in counsel’s words, an “absurd
result”.
[11]
The respondent is unrepresented, failed to file a respondent’s record and
failed to attend at the hearing, although he was properly served with the
Notice of Application.
[12]
Commenting on the residency requirements under section 5 of the Citizenship
Act, Justice Harrington observed in Mann v. Canada (The
Minister of Citizenship and Immigration), 2003 FC 1479, that “the
law is in a sorry state.” Six years later, it is unfortunate to observe that
the comment remains accurate.
[13]
Three distinct approaches have been sanctioned for calculating a would-be citizen’s
“residence” in Canada: (1) strict physical presence as described in Re
Pourghasemi (1993), 62 F.T.R. 122; (2) quality of attachment as set forth
in Re Papadogiorgakis, above; or (3) centralized mode of living as
outlined in Re Koo, [1993] 1 F.C. 286 (T.D.). Justice Lutfy (as he then
was) in Lam v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R.
177, concluded that it was open to a citizenship judge to adopt any one of the
three tests of residency.
[14]
It has been held that failure to identify which test has been used is an
error of law which can justify setting aside a citizenship judge’s decision. In
this case, however, Citizenship Judge Allaire was using the quality of
attachment test, even if he did not identify it by name, given his reference to
Papadogiorgakis.
[15]
The applicant submits, and I agree that the standard of review of a citizenship
judge’s decision is reasonableness: Chen v. Canada (Minister
of Citizenship and Immigration), 2008 FC 763.
[16]
I agree with the applicant that there must be indicia of attachment if the
quality of attachment test is to have any meaning; however, conceiving of
attachment too narrowly can only result in an artificial list of attachment
factors that may be out-of-step with human realities in general and the realities
of immigration in particular. I respectfully disagree with the notion that
intent to return to Canada following completion of one’s education is categorically
irrelevant to attachment. While it is not enough for a prospective citizen to
make bald statements of intent to reside in Canada, when
these are backed up by specific actions that evidence that intention, they should
not be ignored. In this case, there are some actions that support the stated
intention, such as registering the U.S. born child as a Canadian
citizen and obtaining a Canadian professional certification. To the degree that
intent can be reasonably ascertained by the trier of fact, I would think that
it can be and should be taken into account in terms of “quality of attachment.”
[17]
In this case, however, the respondent’s stated intention was to remain in Canada but this proved
to be impossible because he was unable to obtain a Canadian medical residency
in Diagnostic Radiology. If it is reasonable and proper to examine facts after
the date of application to support a stated intention, such facts ought to also
be examined to counter it. In this case, the respondent obtained his
certification in Diagnostic Radiology on June 6, 2007, but then decided to remain
in the United States to do a fellowship in Neuroradiology at Yale School of
Medicine, which he obtained on June 30, 2008. In his letter to the Citizenship
Judge of April 12, 2008 he writes that “after completing my fellowship in the
year 2008, I want to come back to Canada and settle down in Canada
permanently.” However, he did not come back to Canada. He
decided to remain in the United States to complete his “practical program to
obtain his medical speciality designation.” In short, the evidence, when
examined in full, does not support his stated intention of returning to Canada.
[18]
The Court also notes that the respondent was served with the Notice of
Application in this matter by sending a copy to his address in Houston,
Texas and that he signed an Advice of Receipt from Canada Post on January 17,
2009. Accordingly, in spite of his intention, stated to the Citizenship Judge,
to return following his practical studies which were to end December 31, 2008,
there is no evidence that those intentions have been realized.
[19]
I am of the view that the Citizenship Judge erred and his decision is
unreasonable in that he relied on the irrelevant considerations of the shortage
of medical specialists in Canada and the respondent’s employability in Canada. The
Citizenship Judge’s remarks on this point cannot be said to have been merely obiter
statements of well-known facts as they were immediately followed by his statement
that “for these reasons …” the respondent satisfies the residency requirement
in the Act.
[20]
For all these reasons I find that the decision of the Citizenship Judge is
not reasonable and this appeal is allowed.
[21]
The applicant requested an order of costs and submitted a draft bill of
costs using Tariff “B” (Column III) that totals $2,752.25 in fees and
disbursements. The draft bill of costs is reasonable. Awarding costs is
within my discretion and I see no reason to deviate from the usual practice that
the successful party is entitled to its costs.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
- The appeal is
allowed and the decision of Citizenship Judge Normand Allaire, dated
October 31, 2008, is set aside; and
- The applicant is
awarded its costs, fixed at $2,752.25.
"Russel W. Zinn"
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