Date: 20071214
Docket: T-888-07
Citation: 2007
FC 1320
Ottawa, Ontario, December 14, 2007
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
JANET SALAFF
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Janet
Salaff’s case is about numbers. At 1,095 or more, she would be enjoying the
benefits of Canadian citizenship, including the right to come and go as she
pleases, and to stay away as long as she pleases. At 729 or less, she runs the
risk of losing her status as a Canadian permanent resident. Her number is 831;
the number of days she was physically present in Canada in the four years immediately preceding
her application for citizenship. If otherwise qualified, the Citizenship Act
requires the Minister to grant citizenship to a permanent resident who has
“within the four years immediately preceding the date of his of her
application, accumulated at least three years of residence in Canada…” The Citizenship Judge found
that she was short 264 days and dismissed her application. This is the appeal
thereof.
[2]
Ms. Salaff
is a credit to Canada. She came here from the United States in 1970 and became a
permanent resident in 1974. Her daughter was born here and is a Canadian
citizen. She is a scholar of note. She has been an esteemed professor of
sociology at the University
of Toronto since 1970, specializing in Chinese
studies. She is widely published and has lectured worldwide. She has served as
an expert witness. She has maintained her expertise by frequently visiting China, funded in large measure by Canadian
non-governmental organizations. The Minister does not deny that she has been a
Canadian goodwill ambassador.
[3]
Although
the Citizenship Judge dismissed her application, it was nevertheless open to her
to recommend to the Minister that she be granted citizenship. She did not do
so. This Court does not have jurisdiction to make that recommendation. Moreover,
as I said in Canada (Minister of Citizenship and
Immigration) v. Wall
(2005), 271 F.T.R. 146, 2005 FC 110, good character is not enough. The law requires
that she reside here at least 1,095 days in the four years immediately
preceding her citizenship application.
[4]
The Act
does not define “residence”. Different judges of this Court have taken three approaches.
Unfortunately, the Act does not allow an appeal to the Federal Court of Appeal,
and Parliament has not seen fit to amend the Act so as to clarify an
unfortunate situation. Consequently, and sadly, a Citizenship Judge will not be
overruled in appeal as long as he or she properly follows one of the three
schools of thought (Lam v. Canada (Minister of Citizenship and Immigration
(1999), 164 F.T.R. 177, [1999] F.C.J. No. 410).
[5]
All these
schools require that an applicant must first establish herself in Canada. The Minister readily agrees
that Ms. Salaff did so. The question is whether she maintained herself here,
not over the past 37 years, but rather in the four years “immediately”
preceding her application. Under one line of jurisprudence, she probably met
the residency requirement, even though she was not physically present for 1,095
days. Under another, she was definitely short. However, the Citizenship Judge
followed the more nuanced approach set out by Madam Justice Reed in Koo (Re),
[1993] 1 F.C. 286, 59 F.T.R. 27, 59 F.T.R. 27, [1992] F.C.J. No. 1107, the
“centralized mode of living” approach.
[6]
Had the
Citizenship Judge followed the approach set out in Re Papadogiorgakis,
[1978] 2 F.C. 208, 88 D.L.R. (3d) 243, Ms. Salaff would probably have met the
residency requirement. Drawing on the treatment of “residence” in tax statutes,
Associate Chief Thurlow held that a person who has established a home in Canada “does not cease to be
resident there when he lives it for a temporary purpose whether on business or
vacation or even to pursue a course of study.”
[7]
On the
other hand, in Re Pourghasemi (1993), 62 F.T.R. 122, Mr. Justice Muldoon
emphasized physical presence; if you’re in, you’re in; if not, you’re out.
[8]
Drawing on
Re Papadogiorgakis, above, Madam Justice Reed was of the view that the
residency test could be formulated two ways. Is Canada the place where the
applicant “regularly, normally, or customarily lives” or “is Canada –the country in which he or
she has centralized his or her mode of existence”. She then posed six questions
“…that can be asked which assist in such a determination – “. These questions
should not be read as statutory conditions. Re Koo stands for the
proposition that one may be here in mind, even if not in body.
[9]
Most citizenship
issues are mixed ones of fact and law, subject to analysis on the
reasonableness simpliciter standard (Wall, above). However, I have come
to the conclusion that the Citizenship Judge misdirected herself in law, which
is reviewed on the correctness standard. Rather than focus on the four years in
question, she took a prospective view. Although Ms. Salaff continues to maintain
an office at the University
of Toronto, she is now retired. She
recently remarried a Norwegian professor, who has maintained his Norwegian
residency. The couple lives a life many would envy; he spends time with her
here; she spends time with him there; and they both spend time in Asia, or at
her two-week timeshare in Hawaii. She teaches in Canada, in Norway and in Asia.
[10]
I am
satisfied that the citizenship judge properly summarized the evidence when she
said: “In part due to research duties, vacations and conjugal visits with your
husband in Norway, you enter and exit Canada on a regular basis.” However,
she then misdirected herself, by focusing on Ms. Salaff possible future
intentions rather than on the situation current at the time of the citizenship
application, by saying: “Now that you are retired from the University of Toronto, it is reasonable
to expect the amount of time you spend outside the country may now increase.”
[11]
She
thought it “…curious that you applied for citizenship at a time when you must
have known that you might face a substantial residency shortfall.” She
concluded:
While there is no question that you have
contributed a great deal to Toronto’s academic community, and
Chinese community groups in particular, and that you have excelled in your
chosen profession, there is insufficient evidence to suggest that you intend to
make Canada your primary residence.
[12]
I take reference
to the timing of the application to be speculation that in the future Ms.
Salaff might lose her permanent resident status for failure to be here at least
730 days in a 5 year-period as required by section 28 of the Immigration and
Refugee Protection Act. While it is true that a citizen can come and go as
she pleases, and that permanent resident does not quite have that freedom, this
was improper surmise on the Citizenship Judge’s part.
[13]
If an
administrative discretionary decision of the Minister of the Crown can be set
aside for being based on irrelevant considerations, it follows that this
decision must be set aside (Maple Lodge Farm Ltd. v. Canada, [1982] 2
S.C.R. 2, 137 D.L.R. (3d) 558).
[14]
For these
reasons, the appeal shall be allowed and the matter referred back for
reconsideration before another citizenship judge. There shall be no order as to
costs.
ORDER
THIS COURT ORDERS that:
1.
The appeal
is allowed and the matter is referred back for reconsideration before another
Citizenship Judge.
2.
There shall
be no order as to costs.
“Sean Harrington”
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