Date: 20091113
Docket: T-379-09
Citation: 2009 FC 1159
Vancouver, British Columbia, November
13, 2009
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
GLENDA ELAINE RYAN
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Minister of Citizenship and Immigration appeals the decision of a Citizenship
Judge who approved the respondent’s application for citizenship on the basis
that the Citizenship Judge erred in finding that the respondent had met the
residency requirement under paragraph 5(1)(c) of the Citizenship Act.
The respondent did not file a record in these proceedings nor did she appear
for the hearing. For the reasons that follow, the appeal is granted.
[2]
Ms.
Ryan is a citizen of New Zealand who became a permanent
resident in Canada on July 6,
1980. For the next twenty-one years, she lived, worked and played an active
role in the community of Campbell River, B.C. Her husband, also
a New
Zealand
citizen, obtained Canadian citizenship during those years. Her son was born and
raised as a Canadian citizen and continues to live and work on Vancouver Island.
[3]
In
August 2001, Ms. Ryan and her husband sold their house in Canada and returned
to New Zealand. In her
answers to the residence questionnaire submitted with her application, Ms. Ryan
indicated that from March 2001 to January 2004 they were travelling and
visiting family in New Zealand. The reason Ms. Ryan gave for this extended
stay, as described in her application, was “to support my husband”. From other
information in the record, it appears that Ms. Ryan had lost her job with a
B.C. airline that was closed down at that time and Mr. Ryan had discovered a
biological family and siblings in New Zealand that he had never known
and with whom he wished to establish a bond.
[4]
It
appears from letters in the record that the couple intended to eventually return
to Canada but Ms. Ryan
became ill with a debilitating disease known as Guillain-Barré syndrome which
rendered her immobile for an extended period. Mr. Ryan returned to Canada in
September 2006 and took a job at Fort McMurray, Alberta; from there he
commutes back and forth to Vancouver Island when his wife is in Canada.
[5]
Ms.
Ryan rejoined her husband in May 2007 and completed her application for
citizenship on January 4, 2008. Thus, the relevant period to calculate Ms.
Ryan’s residency was from January 4, 2004 to January 4, 2008. In her
application, Ms. Ryan declared that she had been absent from Canada for a total
of 1120 days leaving her with 340 days of actual physical presence in Canada. Based on
the documentary evidence, including stamps in her New Zealand passport, a
citizenship officer calculated that the actual period of absence was 1136 days.
The Citizenship Judge referred to that number and also to a figure of 1138
days, apparently in error.
DECISION
UNDER APPEAL:
[6]
On
January 16, 2009, the Citizenship Judge approved Ms. Ryan’s application. While
noting that it was a difficult case, he found her to be credible and determined
that despite having been in Canada for only 324 days
during the relevant period, she nevertheless met the residency requirement. He
accepted that the effect of contracting a rare and serious disease was to
unavoidably extend her absences from Canada during the statutory
period for over a year.
[7]
The
Citizenship Judge noted that the jurisprudence does not require physical
presence for the whole 1,095 days and concluded that the residency test can be
articulated as follows: is Canada the place where the applicant regularly, normally,
or customarily lives; or, in another formulation of the same test, which the
Citizenship Judge found particularly helpful: is Canada the country in which
the applicant has centralized his or her mode of existence?
[8]
Applying
the criteria for determining residency articulated by Madam Justice Reed in Koo
(Re) (F.C.T.D.), [1993] 1 F.C. 286, [1992] F.C.J. No. 1107, the Citizenship
Judge noted that prior to the statutory four year period, Ms. Ryan had been present
in Canada for 8,481 days before her first extended absence. He found that she returned
to Canada twice during
the statutory period and observed that “[h]er two lengthy absences coincided
with the statutory period in sharp contrast to her previously firm grip on
Canadian soil.”
[9]
The
Citizenship Judge considered that the applicant’s family ties are now predominantly
Canadian, while noting that she does have a daughter who is resident in New Zealand. He found that the pattern of
her absences, taken in the context of her many years in Canada, and in the
context of her son’s continuing presence in Canada, and of her husband’s return
to Canada in 2006 indicate a returning home rather than merely visiting Canada.
In
his view, there
was no indication of any act or intent to establish a home outside of Canada since the applicant first
came here in 1980.
[10]
The
Citizenship Judge recognized that the applicant’s absences from Canada were
considerable, placing a burden on her to establish sufficient ties to Canada for the purposes of
meeting the residence requirements of the Act. He took into account that she no
longer would need to visit her husband in New Zealand as he had relocated to Canada. The Citizenship Judge
accepted that this was always their intention. He found that the quality of
their connection to Canada was of strong and long-standing family, employment
and social ties which, while interrupted by two “lengthy and extremely
inconveniently timed” absences, had been renewed since her return to Canada from New Zealand.
[11]
In the
result, the Citizenship Judge found that the applicant had sufficiently centred
her mode of existence in Canada to meet the residency
requirements of the Act.
ISSUE:
[12]
The
issue in this appeal is the following:
Did the Citizenship Judge err
in determining that Ms. Ryan met the residence requirement under paragraph
5(1)(c) of the Citizenship Act?
STANDARD OF
REVIEW:
[13]
Paragraph
5(1)(c) of the Act provides that the Minister shall grant citizenship to any
person who, within the four years immediately preceding the date of his or her
application, has accumulated at least three years of residence. “Residence” is
not defined in the statute but has been the subject of judicial interpretation.
[14]
The question
of whether a person has met the residency requirements under the Act is a
question of mixed law and fact for which the appropriate standard of review is
reasonableness: Chowdhury v. Canada (Minister of
Citizenship and Immigration), 2009 FC 709, [2009] F.C.J. No. 875, at
para. 24, citing: Dunsmuir
v. New
Brunswick,
2008 SCC 9, [2008] S.C.J. No. 9, at paras. 44, 47, 48 and 53; see also Pao
Chi Chu v. Canada (Minister of Citizenship and
Immigration)
2008 FC 905, [2008] F.C.J. No. 1122.
[15]
Under
this standard, 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, supra, at para.47. Thus, the Court should only intervene if
the decision of the Citizenship Judge was unreasonable in the sense that
it falls outside that range: Chowdhury, supra, at para. 28.
[16]
Citizenship
Judges are owed some deference on questions of mixed fact and law because of their
special knowledge and expertise in these matters. The decision will be
reasonable “as long as there is a demonstrated understanding of the case law
and appreciation of the facts and their application to the statutory test”: Canada
(MCI) v. Ntilivamunda, 2008 FC 1081, [2008] F.C.J. No. 1365, at para. 5; Canada
(MCI) v. Fu, 2004 FC 60, [2004] F.C.J. No. 88, at paras. 6-7; Rasaei v.
Canada (MCI), 2004 FC 1688, [2004] F.C.J. No. 2051, at para. 4; Zeng v.
Canada (MCI), 2004 FC 1752, [2004] F.C.J. No. 2134, at paras. 7-10; Huang
v. Canada (MCI), 2005 FC 861, [2005] F.C.J. No. 1078, at paras. 11-12; Xu
v. Canada (MCI), 2005 FC 700, [2005] F.C.J. No. 868, at para. 13; Rizvi
v. Canada (MCI), 2005 FC 1641, [2005] F.C.J. No. 2029, at para. 5; Chen
v. Canada (MCI), 2006 FC 85, [2006] F.C.J. No. 119, at paras. 6-8.
ARGUMENT AND
ANALYSIS:
[17]
Since
Ms. Ryan was in Canada for only 324 days out of the minimum statutory
requirement of 1095 days during the relevant period, the Minister’s position is
that the Citizenship Judge erred by determining that Ms. Ryan had centralized
her mode of living in Canada and in approving her application for Canadian
Citizenship. While “residence” is not defined in the Act, the allowance for an
absence of one year creates a strong inference that an applicant’s physical
presence in Canada is required during the remaining three years: Canada (Minister of
Citizenship and Immigration) v. Ntilivamunda, 2008 FC 1081, [2008]
F.C.J. No. 1365, at para. 6; Morales v. Canada (MCI), 2005 FC 778,
[2005] F.C.J. No. 982, at para. 8.
[18]
The
Minister made a number of submissions relating to the application of the Koo
criteria. The most significant in my estimation are that the Citizenship
Judge:
a. failed to
properly consider the evidence and, in particular, failed to consider the
pattern of Ms. Ryan’s absences and whether Ms. Ryan’s absences were recent or
occurred over a long period of time before the filing of the application;
b. failed to
consider that the respondent’s extended family lived in New Zealand, including
her daughter, and that her husband was also a New Zealand citizen;
c. erred by not
requesting documentary evidence showing that Ms. Ryan had, in fact, contracted
Guillain-Barré Syndrome;
d. failed to
consider that Ms. Ryan had not sought medical assistance or treatment in
Canada, that she had relinquished her medical insurance in Canada and that she
was covered by New Zealand health care;
e. failed to
consider that she had sold all of her property in Canada when she moved in New Zealand;
f.
erred
by relying too heavily on the fact that Ms. Ryan’s husband and son had obtained
Canadian citizenship and, in the case of the former, returned to Canada and in
the case of the latter, never left Canada;
g. erred by
relying on Ms. Ryan’s future intentions of remaining in Canada as this is
not a relevant consideration in assessing the nature of her absences over the
period in question;
h. erred by
failing to conduct any comparison of Ms. Ryan’s connection with Canada with the
quality of her connection to New Zealand;
i.
failed
to consider that Ms. Ryan’s absences from Canada occurred
precisely during the relevant period; and,
j.
failed
to consider that her absences were not “inconveniently timed”, but deliberate.
[19]
As
noted above, the respondent took no active part in these proceedings and
submitted no written representations.
[20]
As
Mr. Justice Michel Shore stated in Morales v. Canada (MCI), 2005 FC 778,
[2005] F.C.J. No. 982, at para. 8:
Parliament has specifically provided that
an applicant for citizenship may be absent from Canada for one year during the four-year period
prior to the date of his or her application. Consequently, Parliament has
specified that an applicant must be a resident in Canada for at least three years, or 1095 days.
Although the term "residence" is not defined in subsection 2(1) of
the Act, the allowance for an absence of one year creates a strong inference
that an applicant's physical presence in Canada is required during the remaining three
years. [Emphasis
added]
[21]
I
agree with the highlighted statement and agree with the Minister’s position that,
in the circumstances of this case, approving an applicant who is 771 days short
of the required 1,095 falls outside the “range of possible, acceptable outcomes
which are defensible in respect of the facts and law.”
[22]
In
this instance, the Citizenship Judge appears to have applied what Mr. Justice
James O’Reilly characterized as a qualitative or functional test in Canada
(Minister of Citizenship and Immigration) v. Nandre, 2003 FCT 650, [2003]
F.C.J. No. 841. Justice O’Reilly held that if an applicant established
functional residence at least 1,095 days prior to the application for
citizenship, then the applicant could satisfy the residency test despite not
having 1,095 days of physical presence. In Nandre, however, functional
residence was established immediately prior to the relevant period and not, as
here, with an intervening gap of three years. In that case, the principal
applicant was required to be frequently absent for the purpose of his
immigration consulting business but, in every other respect, had centralized
his existence in this country before the start of the relevant period.
[23]
I
note that the Minister’s argument included an erroneous calculation of Ms.
Ryan’s residence in New Zealand prior to the relevant period. In both the
written representations and oral argument it was said to be a “full 10 years
before…as she was living in New Zealand for six years immediately prior to the
relevant period.” That is not correct. She was in New Zealand for three
years prior to the commencement of the relevant period in January 2004.
Nonetheless, this three years was a lengthy period to be absent from her
country of customary residence. Moreover, Ms. Ryan had sold her property
in Canada and
relinquished her medical insurance. The circumstances of her departure suggest
an intent to sever the functional residence previously acquired.
[24]
It
is unfortunate that Ms.
Ryan did not take steps to obtain Canadian citizenship during the 21 years she
spent in Campbell
River. She
may have formed a sincere intention to return to Canada and make it her home before her disabling
condition intervened. But the pattern of her travels back and forth to New Zealand since then and her
limited presence in this country during the relevant period suggest a more
transient connection. She has taken seasonal employment while here and found accommodation
through house-sitting and short term rentals between returns to New Zealand for extended periods. Indeed,
when this matter came on for hearing, the registry was advised that Ms. Ryan was
in New
Zealand. No
explanation was provided as to why she could not have arranged her affairs to
submit an affidavit and written representations or to attend court. That does
not indicate an earnest desire to centralize her mode of existence in this
country.
[25]
I
agree with the applicant that the Citizenship Judge erred in failing to compare
the nature of Ms. Ryan’s connection to New Zealand with that of her connection
to Canada during the relevant
period. The fact that she may, at some future point in time, wish to maintain
her principal residence in this country is immaterial: Ntilivamunda, supra, at
paras. 16-17. The statute requires a concrete demonstration of attachment to Canada in the four
years prior to submitting an application for citizenship. The Citizenship Judge
erred in finding that she had met that burden.
[26]
The
Minister seeks costs in keeping with the normal practice when a party has been
successful. I accept that this appeal was necessary in the interests of
maintaining the integrity of the citizenship application process but in light
of the background facts, I will exercise my discretion to require both parties
to bear their own costs.
JUDGMENT
IT IS THE JUDGMENT OF
THIS COURT that:
- the Minister’s
appeal is granted and the decision of the Citizenship Judge dated January
16, 2009 is set aside;
- the parties shall
bear their own costs.
“Richard G. Mosley”
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