Docket:
T-1958-10
Citation:
2011 FC 1389
Ottawa, Ontario, November 30, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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KENNETH HUGH BURCH
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1] This is an appeal under section 21 of
the Federal Courts Act, RSC 1985, c F-7 and subsection 14(5) of the Citizenship
Act, RSC 1985, c C-29, of a decision dated September 27, 2010 of a citizenship judge
of Citizenship and Immigration Canada (the Judge), wherein the
applicant’s application for Canadian citizenship was denied on the basis that
he had not met the residency requirements under paragraph 5(1)(c) of the Citizenship
Act.
[2] The applicant requests that this Court grant his Canadian
citizenship.
Background
[3] The
applicant, Kenneth Hugh Burch, is a citizen of the United Kingdom. He is
employed as an offshore marine electrician.
[4] The
applicant became a landed immigrant in Canada on November 5, 1999. Since then,
his wife, Catherine Burch, and their daughter, Lynsey Burch, have applied for
and been approved for Canadian citizenships. The family resides together in Oshawa in a home that the applicant purchased in 2005. The applicant also owns and
maintains the following in Canada: vehicle; car and home insurance; life
insurance policy with Canada Life; retirement savings plan contributions; and Canada
Savings Bonds.
[5] The
applicant pays income tax only in Canada and his friends and family live in Canada. There is no other country of which the applicant is a regular resident.
[6] On
July 27, 2009, the applicant applied for Canadian citizenship. The relevant
time period for assessing the applicant’s residency is from July 27, 2005 to
July 27, 2009. To be eligible for residency under paragraph 5(1)(c) of the Citizenship
Act, the applicant must be physically present in Canada for 1,095 days
(three years) during this time period.
[7] Due
to his employment, the applicant must leave Canada for six week intervals to
reside aboard a ship. Aside from two visits to Scotland for family illness, the
applicant has always returned home to his family in Canada after his work
shifts. The locations of his jobs vary and he is rarely in the same location
for extended periods of time. As a result, during the applicable period for his
citizenship application, the applicant was only present in Canada for 675 days – short 420 days of the required 1,095 days.
Judge’s Decision
[8] The
Judge held that as the applicant was 420 days short of the 1,095 day (three
year) residency requirement, he did not meet the requirement under paragraph
5(1)(c) of the Citizenship Act. The Judge acknowledged the existence of
Federal Court jurisprudence that has granted exemptions from the three year
physical presence requirement in special or exceptional circumstances. However,
the Judge found that too long an absence, albeit temporary, is contrary to the
purpose of the residency requirement of the Citizenship Act.
[9] The
Judge also held that the applicant bears the burden of proof of satisfying a
citizenship judge that he has fulfilled the requirements of the Citizenship
Act.
[10] In
his decision, the Judge acknowledged that the applicant would likely eventually
make an excellent Canadian citizen. However, due to his failure to meet the
residency requirement, the Judge was unable to approve the applicant’s
citizenship application at this time.
[11] The
Judge also stated that he had considered whether to make a favorable
recommendation in accordance with subsections 5(3), 5(4) and 15(1) of the Citizenship
Act. However, as the applicant did not file any material in support of such
a recommendation, the Judge decided after considering all the circumstances of
the case, that it did not warrant a favorable recommendation under these
statutory provisions.
[12] The
Judge concluded his decision by explaining two options available to the
applicant – a right of appeal and reapplication for citizenship – should he
wish to pursue his application further.
Issues
[13] The
applicant submits the following point at issue:
Did
the Judge err in denying the applicant his citizenship application based on his
not meeting the residency requirements under paragraph 5(1)(c) of the Citizenship
Act?
[14] I
would rephrase the issues as follows:
1. What
is the appropriate standard of review?
2. Did
the Judge err in determining that the applicant did not meet the residence
requirement under paragraph 5(1)(c) of the Citizenship Act?
Applicant’s Written Submissions
[15] The
applicant submits that the Judge erred in his finding that the applicant had
not filed any material in support of a favourable recommendation under
subsections 5(3) and 5(4) of the Citizenship Act. The applicant submits
that such evidence was filed, namely: the applicant’s proof of vehicle and
property ownership, employment by a Canadian employer, life insurance, payment
of taxes in Canada, Canadian Savings Bonds and family members in Canada.
[16] The
applicant submits that the applicable standard of review for a citizenship
judge’s determination of whether an applicant meets the residency requirement
is reasonableness. The Court must assess whether the citizenship judge
demonstrated a reasonable understanding and appreciation of the case law and
the facts and the manner in which the law applies to them. In addition, the citizenship
judge’s reasons must be sufficiently clear and detailed to demonstrate that all
relevant facts have been considered and properly weighed and that the correct
legal tests have been applied.
[17] The
applicant submits that although the term residence is undefined in the Citizenship
Act, its meaning has been defined in the jurisprudence. Specifically, where
an applicant has been resident in Canada but physically present less than the
required amount, the applicant submits that a mandatory legal test has
developed to determine whether an applicant still meets the residency
requirement. This test asks whether Canada is the place where the applicant
“regularly, normally or customarily lives” or the country in which he has
centralized his mode of existence (see Koo (Re) (TD), [1993] 1 FC 286,
[1992] FCJ No 1107 at paragraph 10).
[18] The
applicant refers to jurisprudence in which it submits the Court found that a
citizenship judge who merely enumerated the facts failed to properly weigh the
evidence and to ascertain the quality of the applicant’s attachment to Canada
in determining the place that the applicant regularly, normally or customarily
lived (see Wu v Canada (Minister of Citizenship and Immigration), 2003
FCT 435, [2003] FCJ No 639).
[19] The
applicant also draws similarities between the case at bar and Cheng v Canada (Minister of Citizenship and Immigration), [2000] FCJ No 1143, 98 ACWS (3d) 982.
The applicant submits that on similar facts, the Court held that the
citizenship judge made a reviewable error in finding that the applicant failed
to establish Canada as his place of residence without challenging the facts
before him or commenting on the applicant’s circumstances.
[20] In
summary, the applicant submits that the Judge in this case failed to weigh the
facts or consider the legal test established in Koo above. These
failures rendered the decision unreasonable. The applicant submits that the
Judge should have found that he normally and regularly lives in Canada and thereby granted him Canadian citizenship.
Respondent’s Written Submissions
[21] The
respondent, Minister of Citizenship and Immigration, submits that the style of
cause should be amended to reflect the Minister of Citizenship and Immigration
as the sole respondent in this case.
[22] The
respondent submits that it was appropriate for the Judge to have found that the
applicant’s absence from Canada was too long and contrary to the purpose of the
residency requirements under the Citizenship Act.
[23] The
respondent submits that since the Federal Court Rules, 1998 came into
force on April 25, 1998, an appeal pursuant to subsection 14(5) of the Citizenship
Act is no longer heard as a de novo appeal. Therefore, only evidence
that was before the citizenship judge can be considered by the Federal Court on
appeal.
[24] The
respondent submits that although Federal Court Judges have interpreted the test
for residency in different ways, the jurisprudence has consistently emphasized
the need for substantial physical presence in Canada during the three out of
four year requirement under paragraph 5(1)(c) of the Citizenship Act.
Further, to calculate residency, no particular approach must be followed as
long as the test that is ultimately chosen by the citizenship judge is properly
applied. Therefore, a citizenship judge may focus on quantitative physical
presence rather than employ other tests directed at more qualitative aspects of
the applicant’s presence in Canada.
[25] The
respondent submits that having adopted the physical presence test for
residency, the Judge reasonably concluded that the applicant had not met the
residency requirement.
[26] The
respondent also distinguishes the facts in this case from those in Koo
above. The respondent submits that rather than 420 days, the applicant in Koo
was short only a few days of the total residency time. In addition, his absence
was due to temporary, rather than permanent, employment abroad.
[27] Finally,
the respondent cites Leung (Re) (FCTD), 42 FTR 149, [1991] FCJ No 160,
in which it submits this Court held that Canadian citizenship applicants do not
have the freedom to spend a large amount of time abroad for business as a
result of subsection 5(1) of the Citizenship Act.
[28] In
summary, the respondent submits that it was reasonable for the Judge in this
case to find that the applicant’s absences were too long to satisfy the
statutory residence requirements for Canadian citizenship.
Analysis and Decision
[29] The respondent’s request to amend the style of cause
by deleting the Attorney General of Canada as a respondent and having The
Minister of Citizenship and Immigration as the sole respondent is granted.
[30] Issue 1
What is the appropriate standard of
review?
There
is general agreement in the jurisprudence that a citizenship judge’s
application of evidence to a specific test for residency under paragraph
5(1)(c) of the Citizenship Act is a decision of mixed fact and law and
is reviewable on a standard of reasonableness (see El Ocla v Canada
(Minister of Citizenship and Immigration), 2011 FC 533, [2011] FCJ No 667
at paragraph 11; Hao v Canada (Minister of Citizenship and Immigration),
2011 FC 46, [2011] FCJ No 143 at paragraph 13; Johar v Canada (Minister of
Citizenship and Immigration), 2009 FC 1015, [2009] FCJ No 1273 at
paragraphs 17 and 18; Canada (Minister of Citizenship and Immigration) v Takla,
2009 FC 1120, [2009] FCJ No 1371 at paragraph 39; and Pourzand v Canada
(Minister of Citizenship and Immigration), 2008 FC 395, [2008] FCJ No 485
at paragraph 19).
[31] With respect to the citizenship judge’s selection of the test for
residence in reviewing a citizenship application under paragraph 5(1)(c) of the
Citizenship Act, the appropriate standard of review is correctness (see El Ocla above, at
paragraphs 12, 13 and 19, Canada (Minister of Citizenship and Immigration) v
Nandre, 2003 FCT 650, [2003] FCJ No 841 at paragraphs 11, 12 and 21; and Dedaj
v Canada (Minister of Citizenship and Immigration), 2010 FC 777, [2010] FCJ
No 945 at paragraphs 6 to 9).
[32] Issue 2
Did the Judge err in
determining that the applicant did not meet the residence requirement under
paragraph 5(1)(c) of the Citizenship Act?
A review of the Judge’s
reasons lead me to conclude that he applied the physical presence test for
residence in this case.
[33] In Mizani v Canada (Minister of Citizenship and
Immigration) 2007 FCJ No 947, Madame Justice Danièle Tremblay-Lamer described
the different tests for residence that have emerged from the jurisprudence at
paragraphs 10 and 11:
10 This
Court's interpretation of "residence" can be grouped into three
categories. The first views it as actual, physical presence in Canada for a total of three years, calculated on the basis of a strict counting of days (Pourghasemi
(Re), [1993] F.C.J. No. 232 (QL) (T.D.)). A less stringent reading of the
residence requirement recognizes that a person can be resident in Canada, even
while temporarily absent, so long as he or she maintains a strong attachment to
Canada (Antonios E. Papadogiorgakis (Re), [1978] 2 F.C. 208 (T.D.). A
third interpretation, similar to the second, defines residence as the place
where one "regularly, normally or customarily lives" or has
"centralized his or her mode of existence" (Koo (Re), [1993] 1
F.C. 286 (T.D.) at para. 10).
11
I
essentially agree with Justice James O'Reilly in Nandre, above, at
paragraph 11 that the first test is a test of physical presence, while the
other two tests involve a more qualitative assessment:
Clearly,
the Act can be interpreted two ways, one requiring physical presence in Canada for three years out of four, and another requiring less than that so long as the applicant's
connection to Canada is strong. The first is a physical test and the second is
a qualitative test.
[34] This Court’s jurisprudence has highlighted the
problematic situation that arises from a deferential stance on a citizenship
judge’s choice of residence test (see El Ocla above, at paragraph 20;
and Hao above, at paragraph 40). Therefore, some recent jurisprudence
has held that where a citizenship applicant does not meet the physical presence
test, the citizenship judge must proceed to the qualitative assessment and
apply the Koo above, factors in assessing the facts of the particular
case (see El Ocla above, at paragraph 19; and Canada (Minister of
Citizenship and Immigration) v Salin, 2010 FC 975, [2010] FCJ No 1219 at
paragraphs 10 and 21).
[35] In the
present case, the Judge, as I stated earlier, appears to only have applied the
strict physical presence test in finding that the applicant did not qualify for
citizenship. He stated in part at page 2 of the decision (applicant’s record,
tab 2):
In your case, after carefully
reviewing all of the documentation you provided, I found that you do not meet
the requirement under section 5(1)(c) of the Citizenship Act. You are 420 days
short of the required 1,095 days. I have reviewed the information on file and
that provided at the hearing and I have found no compelling reason to reduce or
waive the strict minimum requirement of the Residency Act.
[36] The Judge did
not proceed to apply the Koo above, test as noted by the jurisprudence
and determine whether the applicant was resident in Canada even though not
physically present. In my view, the failure to apply the Koo above, test
with its factors was an error of law based on the facts of this case. Even if
it was accepted that the Judge made reference to the other tests to determine
residency, there was no analysis of the facts in relation to those tests.
[37] For these
reasons, the appeal must be allowed. The decision of the Judge is set aside and
the matter is referred to a different citizenship judge for redetermination.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The applicant’s appeal is allowed, the decision of the
citizenship judge is set aside and the matter is referred to a different citizenship judge for redetermination.
2. The
Attorney General of Canada is deleted as a respondent and The Minister of
Citizenship and Immigration shall be the respondent.
“John
A. O’Keefe”
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