Date: 20110112
Docket: T-663-10
Citation: 2011 FC 29
Ottawa, Ontario, January 12,
2011
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
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ALEXANDER DAVID CARDIN
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Applicant
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and
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MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Alexander Cardin’s application for Canadian citizenship was refused on
the basis that he did not meet the residency requirement of the Citizenship
Act, R.S.C. 1985, c. C-29. There is no dispute about the fact that Mr.
Cardin was away from Canada for 688 days in the four year period immediately
prior to the filing of his application.
[2]
The Citizenship Judge applied the test articulated in Re Pourghasemi
[1993] F.C.J. No. 232, 62 F.T.R. 122 (Fed. T.D.), which requires that an
applicant be physically present in Canada for 1095 days in the relevant four
year period. In so doing, the Citizenship Judge adopted the reasoning of
Justice Muldoon in Re Pourghasemi, where he stated that the purpose of
paragraph 5(1)(c) of the Citizenship Act is to ensure that anyone
receiving Canadian citizenship “has become, or at least has been compulsorily
presented with the everyday opportunity to become, ‘Canadianized’”.
[3]
Quoting Justice Muldoon, the Citizenship Judge noted that
‘Canadianization’ occurs “by ‘rubbing elbows’ with Canadians in shopping malls,
corner stores, libraries, concert halls, auto repair shops, pubs, cabarets,
elevators, churches, synagogues, mosques and temples - in a word wherever one
can meet and converse with Canadians - during the prescribed three years.”
This ‘Canadianization’ can only occur through living in Canada as “Canadian
life and society exist only in Canada and nowhere else”.
[4]
The Citizenship Judge noted Justice Muldoon’s statement that three years
“is little enough time in which to become Canadianized”. If an applicant did
not have that qualifying experience, it would mean that citizenship could be conferred
on someone “who is still a foreigner in experience, social adaptation, and
often in thought and outlook.”: all quotes from Re Pourghasemi at para.
3, as cited in the Citizenship Judge’s decision.
[5]
The Citizenship Judge found that Mr. Cardin had not done this.
[6]
It is common ground that the standard of review to be applied to the
Citizenship Judge’s decision is that of reasonableness: Zhang v Canada
(MCI), 2008 FC 483 at para. 7-8; Canada (MCI) v Elzubir, 2010
FC 298 at para. 12.
[7]
Paragraph 5(1)(c) of the Citizenship Act provides that a
permanent resident must have “within the four years immediately preceding the
date of his or her application, accumulated at least three years of residence
in Canada”.
[8]
There are three different schools of thought as to how the residency
requirement of paragraph 5(1)(c) is to be applied. The first is the Re
Pourghasemi test used in this case, which only asks whether the applicant
has been physically present in this country for a total of three years out of
four, or a minimum of 1095 days.
[9]
The second test is that articulated in Re Papadogiorgakis, [1978]
2 F.C. 208; [1978] F.C.J. No. 31. This is a less stringent test in that it
looks at whether an applicant has an established residence and strong
attachment to Canada, even if he or she has been temporarily absent away from Canada.
[10]
The third test is the one most commonly used in citizenship cases. This
is the so-called “Koo” test, established in Re Koo, [1993] 1 F.C.
286; [1992] F.C.J. No. 1107. The Koo test looks at residence as being
the place where one “regularly, normally or customarily lives” or has
“centralized his or her mode of existence”. Re Koo identifies six
questions that are to be asked in order to determine whether this test has been
met.
[11]
Because there is no appeal from Federal Court decisions in citizenship
matters, there has never been an appellate determination as to which is the
appropriate test.
[12]
In light of the conflicting jurisprudence, this Court has determined
that it is open to Citizenship Judges to apply any of the three tests.
Moreover, “if the facts of the case were properly applied to the principles of
the chosen approach, the decision of the citizenship judge would not be wrong”:
see Lam v Canada (MCI), [1999] F.C.J. No. 410 at para. 14.
[13]
Mr. Cardin’s application for citizenship was rejected based on the
Citizenship Judge’s finding that his absences from Canada meant that he had not
sufficiently “Canadianized” himself. This finding was unreasonable on the
particular facts of this case.
[14]
Mr. Cardin is 26 years old. He came to Canada with his family in 1999,
when he was 14 years old. He went to high school in Canada. He spent four
years at university in Canada, ultimately receiving a Bachelor of Arts in
Political Science from the University of Western Ontario in 2006. He became a
permanent resident of Canada in 2005. He has worked in Canada. His parents and
two brothers are Canadian citizens.
[15]
Mr. Cardin has thus undoubtedly had ample opportunity to immerse himself
in Canadian society and to ‘rub elbows’ with Canadians throughout the formative
years that he spent in this country.
[16]
In 2006, Mr. Cardin’s Canadian employer sent him to a management
training program in the United States. It was his attendance at this program
that resulted in a substantial portion of his absences from Canada. Mr. Cardin
has since returned to Canada, and continues to work for his Canadian employer.
[17]
During the time that Mr. Cardin was in the United States, his
possessions remained at his family’s home in Ontario, he maintained bank
accounts in Canada, and he returned to Canada from time to time to visit family
and friends.
[18]
While it is clearly open to a Citizenship Judge to choose one of the
three approved residency tests, whichever test is selected nevertheless had to
be applied with common sense. If the underlying rationale for the application
of a particular test is not present on the facts of the case, then the
application of the test simply does not make sense. That is, it is not
reasonable.
[19]
The Re Pourghasemi test is usually applied in cases where an
individual comes to Canada, and then immediately absents him- or herself from
this country on a regular basis, perhaps for business reasons, often without
ever really integrating into Canadian society. The principle underlying the
day-counting exercise prescribed by Re Pourghasemi is to ascertain
whether such an applicant has had any real exposure to, or involvement with
Canadian society. That is, whether they had become “Canadianized”.
[20]
This is not the situation here. Mr. Cardin developed a deep and
long-standing connection to Canada long before the commencement of the
residency period specified in paragraph 5(1)(c) of the Citizenship Act.
He had already had ample opportunity to become “Canadianized”.
[21]
I am thus satisfied that the facts of this case were not properly applied
to the principles underlying the Re Pourghasemi test. Consequently, the
appeal will be allowed. Mr. Cardin’s citizenship application is remitted to a
different Citizenship Judge for re-determination in accordance with these
reasons.
[22]
I would leave this matter by simply echoing the observations that have
repeatedly been made by judges of this Court. The law in this area is in a
very unsatisfactory state. As Justice Dawson observed, it is fundamentally
unfair that two persons may apply for citizenship on identical facts and yet
obtain opposite results, depending on which test is applied: see Lin v
Canada (Minister of Citizenship & Immigration), [2002] F.C.J. No. 492,
2002 FCT 346 (Fed. T.D.). It is an area that cries out for legislative reform.
JUDGMENT
THIS COURT ORDERS
AND ADJUDGES that this appeal is allowed, and the matter is remitted
to a different Citizenship Judge for re-determination in accordance with these
reasons.
“Anne
Mactavish”
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