Docket: T-58-11
Citation: 2011
FC 936
Ottawa, Ontario, July 27,
2011
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Applicant
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and
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TUNA ONUR
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Overview
[1]
Dr.
Tuna Onur applied for Canadian citizenship in 2008. A citizenship judge
concluded that she met the requirements of the Citizenship Act, RS 1985,
c C-29, including the requirement that she be resident of Canada for three
out of the four years preceding her application. While Dr. Onur was not
physically present in Canada for the required duration, the judge found, after
thoroughly reviewing Dr. Onur’s circumstances, that she had firmly established
her residency and maintained sufficiently strong ties here that she could be
said to have centralized her mode of existence in Canada for the necessary
period of time.
[2]
The
Minister argues that the judge’s decision was unreasonable since Dr. Onur was
present in Canada for only 201
days during the relevant time frame, 894 days short of the necessary three
years.
[3]
In
the unique circumstances of this case, I cannot find that the judge’s decision
was unreasonable based on the evidence. I must, therefore, dismiss this appeal.
II. Factual Background
[4]
Dr.
Onur arrived in Canada in 1997 on a student visa. She obtained a PhD
in earthquake science at the University of British Columbia. She lived
here for eight years, leaving only for brief periods of time. She became a
permanent resident in 2005. In 2005, she moved to California temporarily to
accompany her Canadian husband who was pursuing research toward his doctoral
degree at the University
of Victoria, also in
earthquake science. She applied for Canadian citizenship on their return to British
Columbia
in 2008.
III. Was the Citizenship Judge’s
Decision Unreasonable?
[5]
As
he was entitled to do, the judge applied the test set out in Koo (Re)
(1992), [1993] 1 FC 286, 59 FTR 27 (TD). The main question under that test is
whether the applicant has centralized her mode of existence in Canada. The judge
must consider a number of factors in answering that question.
[5]
[6]
Here,
the judge concluded that the factors weighed in Dr. Onur’s favour, as follows:
(i) Was
the individual physically present in Canada for a long period prior
to recent absences which occurred before the application for Citizenship?
[7]
Dr.
Onur was absent from Canada only for 124 days between 1997 and 2005.
She lived and studied in Canada for over 8 years before her first lengthy
absence.
(ii) Where
are the applicant’s immediate family and dependants and extended family
resident?
[8]
Dr.
Onur’s husband and daughter are Canadian citizens and currently reside here.
While her parents and sister live in Turkey, her family ties are
strong and mainly Canadian.
(iii) Does
the pattern of physical presence in Canada indicate a returning
home or merely visiting the country?
[9]
Dr.
Onur returned to Canada 24 times since first coming here in 1997. There
was no indication of any intention on her part to establish a permanent home
outside of Canada since 1997. The
pattern of her travel was clearly one of returning home to Canada.
[9]
(iv) What is the extent
of the physical absence?
[10]
Dr.
Onur’s absences during the relevant four-year period were considerable. As
such, she would have to establish strong ties to Canada for the
purposes of meeting the residency requirement under Act.
(v) Is the physical
absence caused by a clearly temporary situation?
[11]
Dr.
Onur’s spouse is an expert in earthquake risk assessment and response planning.
Completion of his Ph.D. thesis at the University of Victoria required him
to spend a significant period studying the social impact of earthquakes in an
area which had suffered major earthquake damage in the recent past. Because no
part of Canada fit these
criteria, he was required to relocate to California. Dr. Onur
took a job in California to help
support her family while her husband completed his studies. The experience she
gained there has been employed to the benefit of Canada since her
return.
[12]
Once
her spouse’s research was complete, Dr. Onur and her family returned to Canada, where they
have lived and worked since. Dr. Onur and her spouse applied for and were
granted Canadian citizenship for their daughter.
[13]
Dr.
Onur’s absence from Canada was “clearly temporary” in support of her husband’s
course of study, which due to its unusual and specific focus, required on-site
research for a lengthy period outside of Canada.
(vi) What is the quality
of the connection with Canada?
[14]
Dr.
Onur clearly established a home and family in Canada prior to leaving for California with her
husband in 2005. The Judge noted the following:
• Dr.
Onur’s husband was born in Canada and had lived here continuously until his
research hiatus in California;
• As
part of her own Ph.D. research, Dr. Onur studied earthquake risk in
southwestern British Columbia, investigating potential damage to buildings
built according to Canadian building codes and construction practices;
• She
worked for the Government of Canada as a visiting scientist from 2001 to 2005;
• She
had taken French language courses in pursuit of professional-level bilingual
proficiency;
• She
led numerous research projects focused on Canadian earthquake preparedness;
• While
in California she maintained professional memberships and contacts with
colleagues in Canada;
• She
has been widely published in professional journals and the national media;
• She
is a member of the National Building Code of Canada’s “Standing Committee on
Earthquake Design” and was appointed to this body for a five year term in 2009.
This position is unpaid, and demonstrates Dr. Onur’s commitment to service,
volunteering her professional expertise to enhance the safety of Canadians;
• She
and her husband currently work in Canada as earthquake research
and engineering consultants;
• While
in California, both Dr.
Onur and her spouse gained valuable technical knowledge and experience which
they have since employed to the benefit of Canada;
• They
have made daycare arrangements for their daughter in Canada;
• Dr.
Onur pays Canadian income and property taxes, has active bank accounts and
credit cards in Canada, a Canadian home mortgage, a social insurance number,
health card, and driver’s licence; and
• Dr.
Onur owns no property outside of Canada and has no business,
employment, or investments in any other country.
[15]
On
this basis, the judge concluded that Dr. Onur had solid family, educational and
employment ties to Canada which continue to strengthen over time, and
only peripheral ties to any other country. He found that Dr. Onur’s was an
unusual case in that her only major absence from Canada was clearly temporary
and part of her husband’s course of studies at a Canadian university. While
noting that her absence from Canada was unfortunately timed with respect to the
residency requirement imposed by the Citizenship Act, he found that she
was ideally qualified to become a Canadian citizen, has easily been in Canada
long enough, and has returned with such regularity, so as to clearly establish
that she had centered her mode of existence in Canada, and nowhere but Canada.
[16]
I
can find no error in the judge’s application of the relevant factors. His
conclusion falls within the range of possible and defensible outcomes based on
the facts and the law and, accordingly, was not unreasonable.
IV. Conclusion and Disposition
[17]
On
the unique facts of this case, I find that the citizenship judge’s decision was
not unreasonable. I must, therefore, dismiss this appeal. There is no order as
to costs.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1.
The
appeal is dismissed;
2.
No
order as to costs.
“James
W. O’Reilly”
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