Date: 20090917
Docket: T-1163-08
Citation: 2009 FC 927
Ottawa, Ontario, September 17,
2009
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Applicant
and
MICHAEL
SAMUEL LEROY ROBERTS
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an appeal made pursuant to section 14(5) of the Citizenship Act,
R.S.C. 1985, c. C-29 (“Act”), section 21 of the Federal Courts Act,
R.S.C. 1985, c. F-7, and Rule 300(c) of the Federal Courts Rules,
SOR/98-106, by the Minister of Citizenship and Immigration of a decision made
by Citizenship Judge Robert M. Morrow, dated 28 May 2008, approving
the Respondent’s application for Canadian citizenship.
I. Background
[2]
Michael
Samuel Leroy Roberts is a citizen of the United States. He entered Canada on a student
visa in 2002 to study law at the University of Toronto. During this
time, he stayed at motels, slept in his car, as well as overnight with fellow
students. According to Mr. Roberts, he would also commute to Buffalo three days a
week for his job as a law clerk and return to Toronto in the
afternoon on those days.
[3]
Between
30 May 2003 and 01 September 2003 Mr. Roberts resided at Sorbara Hall on the
University of Toronto campus while
participating in the Ontario bar admissions course.
He submits that he was no longer employed in the United States during this time
and remained in Canada full-time to attend the course.
[4]
Mr.
Roberts returned to having no fixed address in Canada immediately
upon the completion of the bar admissions course. Specifically, between 05
September 2003 and 31 July 2004, while employed as an articling
student, Mr. Roberts admits that he had “no fixed abode” and that he slept in
his car and sometimes overnight at the residence of friends. He adds that
during this time he visited family in Buffalo every other week on
Saturdays using a round-trip bus ticket.
[5]
Subsequently,
during August 2004, Mr. Roberts resided at his home in Buffalo to study for
the New
York
State bar exam and to care for his ailing grandmother. Starting in 13 September
2004, Mr. Roberts was enrolled in a part-time course at Seneca College in Toronto. However, it
does not seem that Mr. Roberts had a fixed abode in Canada during this
time.
[6]
He
landed as a permanent resident on 25 January 2005. A few months later in April
2005, Mr. Roberts was called to the Ontario Bar. In October of the same year,
he began employment at Legal Aid Ontario as criminal duty
counsel. However, Mr. Roberts admits that he even now did not establish “an
actual physical residence in Canada” during this time.
[7]
Since
becoming licensed, Mr. Roberts started a law practise dealing primarily with
immigration law which services the Niagara Region including both parts of the United
States
and Southern Ontario. In addition, Mr. Roberts states that he was employed at
two H&R Block offices – one in the United States and one in Canada preparing
tax returns for clients. As a result, he commuted across the border into Canada
to work, all the while returning to his home in Buffalo which he
owned with his two siblings.
[8]
Mr.
Roberts applied for Canadian citizenship on 18 May 2007. On his citizenship
application, Mr. Roberts declared an absence of 76.5 days and a physical
presence of 1075 days in Canada. Subsequent to his application, he was
invited to an interview with a Citizenship Judge to assess the extent of his
residency. The forms prepared by officers at Citizenship & Immigration
Canada indicate that Mr. Roberts was referred for an interview due to the fact
that he had an address in the United States and only a P.O. Box in Canada. In
addition, officers noted that Mr. Roberts’ days of physical presence (as
indicated by him on his citizenship application) were below the number required
for citizenship.
II. Analysis
A. Decision Under Review
[9]
On
31 March 2008, Citizenship Judge Robert M. Morrow approved Mr. Roberts’
application for citizenship. The decision contained short, hand-written observations made
by the Citizenship Judge in relation to the six factors enumerated in Koo
(Re), [1993]
1 F.C. 286 (T.D.), [1992]
F.C.J. No. 1107 (T.D.) (QL), for determining residency.
Briefly, the Citizenship Judge concluded that Mr. Roberts was present in Canada
for a long period; that his two siblings live in Buffalo; that his physical
presence indicates a returning home and that ninety percent of Mr. Roberts
work and income is derived in Canada; that he has spent more time in Canada
than outside; that his absences from Canada were temporary; and that Mr. Roberts’ connection
with Canada is more substantial than with the United States. In these reasons,
the judge revised the number of days absent from Canada from 76.5 to 469 and
the number of days present in Canada from 1075 to 685.
[10]
The
Citizenship Judge also provided further reasons after subsequent meetings with
Mr. Roberts. In these reasons, the judge notes that despite the fact that
Mr. Roberts was forced to live in Buffalo due to financial constraints, he was working
toward living in Canada. Regardless, the judge
concluded that Mr. Roberts has spent more time in Canada than in the United States based on his studies,
employment, and time spent socializing in the country.
B. Relevant
Legislation
[11]
The
relevant portion of the Act is paragraph 5(1)(c) which provides:
|
Grant of citizenship
5.
(1) The Minister shall grant citizenship to any person who
[…]
(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;
|
Attribution de la citoyenneté
5.
(1) Le ministre attribue la citoyenneté à toute personne qui, à la fois :
[…]
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;
|
III. Issues
[12]
The
issues which present themselves in this case are as following:
(a) Did the Citizenship Judge err in
failing to address one branch of the two-part process in exploring whether an
applicant has established residence?
(b) Did
the Citizenship Judge misapply one of the legal tests regarding duration of
residence, resulting in an unreasonable finding that the Respondent met the
statutory residence requirement under paragraph 5(1)(c) of the Act?
(c) Did
the Citizenship Judge fail to adequately assess the evidence resulting in
unreasonable findings of fact?
(1) Did
the Citizenship Judge Err in Failing to Address One Branch of the Two-Part
Process in Exploring Whether an Applicant Has Established Residence?
[13]
The
standard of review applicable to this issue is correctness. In Chen v. Canada (Minister of
Citizenship and Immigration), 2006 FC 85, 145 A.C.W.S. (3d) 770, Justice
Phelan explains at para. 8 that “…the standard of
review is correctness in that a citizenship judge must address (a) whether
an applicant has established residence and (b) whether an applicant has
maintained that residence. A failure to address either issue is an error of law
for which the standard of review is correctness.”
[14]
As
mentioned, a two-stage inquiry exists with respect to the residency requirement
stipulated in paragraph 5(1)(c) of the Act. The case law indicates that
applicants for citizenship must demonstrate that first, they have established a
residence in Canada: see Canada (Minister of
Citizenship and Immigration) v. Italia, 89 A.C.W.S. (3d) 22,
[1999] F.C.J. No. 876 (T.D.) (QL), at paras. 14-16. This inquiry is the first
stage of a two-part process in demonstrating whether an applicant has met the
statutory residency requirement under the Act: see Zhao v. Canada (Minister of
Citizenship & Immigration), 2006 FC 1536, 306 F.T.R. 206, at para. 49. Indeed, the
establishment of a residence in Canada is a condition precedent
to obtaining citizenship. Where the evidence demonstrates that residence has
not been established, inquiries as to whether residence has been maintained or
evidence as to whether the applicant has centralized his mode of living in
Canada become irrelevant: see Canada (Minister of Citizenship and
Immigration v. Tarfi, 2009 FC 188, [2009] F.C.J. No. 244 (T.D.)
(QL), at para. 35.
[15]
Similarly,
in Canada (Minister of
Citizenship and Immigration) v. Nandre, 2003 FCT 650, 123 A.C.W.S. (3d) 28, Justice O’Reilly
states at paragraph 24 of his decision that:
[…] In order for applicants to satisfy
the residence requirement, they must first show that they have established a
residence in Canada…
[16]
The
Citizenship Judge did not make any specific findings with respect to the
establishment of a residence for Mr. Roberts and the evidence in this regard is
weak and almost non-existent. Mr. Roberts lived in a student residence for
three months during the material period with the remainder of the time being
spent with no fixed address or at his family home in the United
States.
Rather the Citizenship Court Judge seems to stress that Mr. Roberts intends to
establish a residence in Canada once his personal circumstances allow for
such. It is well established that a mere intention to establish a residence is
insufficient: see Canada (Minister of
Citizenship and Immigration) v. Italia, above, at para. 16.
Indeed, during his oral submissions the Respondent advised the court that he
had established a residence as of June, 2009 which would seem to confirm that
no such residence had been established prior to this time or certainly during
the material period in question.
[17]
While
I have some sympathy for the circumstances that led to the Respondent’s failure
to establish a residence in Canada during the material period it seems clear
that the Citizenship Judge was guided more by Mr. Roberts’ future intentions
with respect to establishing a residence and erred in his judgment by not
clearly addressing this issue. Federal Court jurisprudence also demonstrates
that establishing such a residence is a condition precedent before proceeding
to an examination as to whether the applicant in question has maintained such a
residence. In the case of Mr. Roberts, upon even the most generous reading of
the Citizenship Judge’s decision and the material before him, it is clear that
the Respondent did not establish a residence in Canada and for that
reason alone the appeal must be allowed.
[18]
Given
my conclusion with respect to issue (a) – the failure of the Citizenship Judge
to make a determination with respect to the establishment of a residence by the
Respondent, there is no need to address issues (b) and (c).
[19]
Accordingly,
the appeal is allowed and the decision of the Citizenship Judge is set aside.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
The
appeal is allowed.
2.
The
decision of the Citizenship Judge granting the Respondent citizenship is set
aside.
“ D.
G. Near ”
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