Date: 20080218
Docket: T-1098-07
Citation: 2008 FC 204
Ottawa,
Ontario, February 18, 2008
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
MARIO
HERNANDO PAEZ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an appeal by the applicant pursuant to
s. 14(5) of the Citizenship Act, 1974-75-76, c. 108 (the “Act”) and s. 21 of the Federal
Courts Act, R.S.C. 1985, c. F-7, as amended, respecting a decision rendered
by a citizenship court judge, dated 20 April 2007, wherein he concluded that
the applicant had not met the residence requirement of s. 5(1)(c) of the Act.
BACKGROUND
[2]
The applicant and his family, all citizens of Colombia, were landed immigrants on August
24, 2000.
[3]
Since being landed, the applicant has been
absent from Canada on multiple
occasions, returning almost exclusively to Colombia where he had, until 2002, a medical clinic office and, at the time
of his citizenship application, continued to own a store which sells
eyeglasses.
[4]
On June 23, 2004, the applicant submitted an
application for Canadian citizenship.
[5]
Subsequently, the applicant and his wife sold
their house and returned with their children to Colombia, remaining there in 2006.
[6]
At a February 7, 2006 meeting with a citizenship
officer, the applicant’s passport was examined and several undeclared trips
were noted.
[7]
In a Residence Questionnaire, completed on
February 23, 2006, the applicant admitted that despite having indicated in his
application that he had been absent from Canada for 295 days, he had in fact
been abroad for approximately 542 days, mostly for business reasons in
Colombia.
[8]
On January 17, 2007, the applicant appeared
before a citizenship judge for a hearing of his application for Canadian
citizenship.
[9]
In a decision dated April 20, 2007, the Judge
found that the applicant had not fulfilled the residency requirement of s.
5(1)(c) of the Act and therefore denied the applicant’s citizenship
application. In the letter of decision, the Judge indicated that at the time
when the applicant submitted his citizenship application, June 23, 2004, his
absences totalled 551 days over the course of the 4 preceding years and that in
those circumstances, the applicant must demonstrate, in intention and in fact,
that he has centralised his mode of existence in Canada.
[10]
Further, in the notes accompanying the decision
letter, the Judge applied the six factors enunciated by Madam Justice Reed in
the decision Koo (Re), [1993] 1 F.C. 286 (T.D.). It is trite law that
these notes form part of the reasons underlying the decision. Contrary to the
applicant’s submissions, there is no evidence in the Tribunal record indicating
that the applicant did not receive these accompanying notes.
ANALYSIS
The standard
of review
[11]
With respect to the analysis of the residence
requirement of the Act, the Court’s jurisprudence reveals that the appropriate
standard of review is that of reasonableness simpliciter (Chen v.
Canada (Minister of Citizenship and Immigration), 2004 FC 1693, [2004]
F.C.J. No. 2069 (QL), at para. 5; Rasaei v. Canada (Minister of Citizenship
and Immigration), 2004 FC 1688, [2004] F.C.J. No. 2051 (QL), at para. 4; Gunnarson
v. Canada (Minister of Citizenship and Immigration), 2004 FC 1592, [2004]
F.C.J. No. 1913 (QL), at para. 22; Canada (Minister of Citizenship and
Immigration) v. Chen, 2004 FC 848, [2004] F.C.J. No. 1040 (QL), at para. 6;
Canada (Minister of Citizenship and Immigration) v. Fu, 2004 FC 60,
[2004] F.C.J. No. 88 (QL), at para. 7; Canada (Minister of Citizenship and
Immigration) v. Chang, 2003 FC 1472, [2003] F.C.J. No. 1871 (QL), at para.
7).
[12]
As the question is one of mixed fact and law of
which citizenship judges possess a degree of knowledge and experience, determinations
of whether an applicant has met the residence requirement of the Act are owed a
measure of deference. Thus, a Judge’s conclusion will be reasonable “if it is
supported by a tenable explanation even if this explanation is not one that the
reviewing court finds compelling” (Law Society of New Brunswick v. Ryan,
[2003] 1 S.C.R. 247 (QL), at para. 55).
Was the
Citizenship Judge’s decision Reasonable?
[13]
As has been indicated on numerous occasions, the
Court’s interpretation of “residence” has resulted in three different tests (Mizani
v. Canada (Minister of Citizenship and Immigration), 2007 FC 698, [2007]
F.C.J. No. 947 (QL), at para. 10; Farrokhyar v. Canada (Minister of Citizenship and
Immigration), 2007 FC 697, [2007] F.C.J. No. 946
(QL), at para. 9). The first test involves a strict counting of days of
actual physical presence in Canada which must total 1095 days in the 4 years
preceding the application (Pourghasemi (Re), [1993] F.C.J. No. 232
(QL). The second is a less stringent test which recognizes that a person can
be resident in Canada, even
while temporarily absent, if there remains a strong attachment to Canada (Antonios E. Papadogiorgakis (Re),
[1978] 2 F.C. 208 (T.C.)). Finally, the third test builds upon the second by
defining residence as the place where one “regularly, normally or customarily
lives” or has “centralized his or her mode of existence” and includes 6
non-exhaustive factors involved in the evaluation (Koo (Re), supra,
at para. 10).
[14]
As a general principle, in examining the six
factors, the analysis must be contextualized (Zhao v. Canada (Minister of Citizenship and
Immigration), 2006 FC 1536, [2006] F.C.J. No. 1923
(QL), at para. 59). In Zhao, supra, at para. 60, Russell J.
indicated that the entire context of an applicant’s situation must be
considered.
[15]
Further, with respect to the second Koo (Re) factor,
residence of family members, while the citizenship judge is to examine where an
applicant’s immediate family is resident, an applicant cannot “bootstrap” his
qualification as a resident based on the conduct of his family (Sleiman v.
Canada (Minister of Citizenship and Immigration), 2007 FC 230, [2007]
F.C.J. No. 296 (QL), at para. 25; Eltom v. Canada (Minister of Citizenship and Immigration), 2005 FC 1555, [2005] F.C.J. No. 1979 (QL), at para. 22; Faria
c. Canada (Minister of Citizenship and Immigration), 2004 FC 1385, [2004]
F.C.J. No. 1849 (QL), at para. 12); Canada (Minister of Citizenship and Immigration) v. Chang, 2003 FC 1472, [2003] F.C.J. No. 1871 (QL), at para. 9).
[16]
Moreover, while an applicant’s physical presence
is not the primary consideration, in remains an important factor in the Koo
(Re) analysis and the Judge is free and indeed required to examine physical
absences and the reasons for those absences (See Canada (Secretary of State
v. Nakhjavani, [1988] 1 F.C. 84, [1987] F.C.J. No. 721 (QL), at para. 15; Agha
(Re), [1999] F.C.J. No. 577 (QL), at para. 45). More particularly, as
Martineau J. has held in Canada (Minister of Citizenship and Immigration v. Chen, 2004 FC 848, [2004] F.C.J. No. 1040 (QL), at para. 10:
When absences
are a regular pattern of life rather than a temporary phenomenon, they will
indicate a life split between two countries, rather than a centralized mode of
existence in Canada, as is
contemplated by the Act […]
(See e.g. Sleiman,
supra, at para. 28)
[17]
I agree with my colleague. While the Koo (Re)
test is inherently flexible, taking into account the personal circumstances of
an applicant, that flexibility can extend only so far. At some point if an applicant
wishes to become a Canadian citizen, he must centralize his mode of existence in
Canada.
[18]
Finally, with respect to the quality of
connection to Canada, the existence of “passive” indicia such as the
possession of homes, cars, credit cards, driver’s licenses, bank accounts,
health insurance, income tax returns, library cards, etc., the Court has been
reluctant to find that on their own, these are sufficient to demonstrate a
substantial connection (Sleiman, supra, at para. 26; Eltom, supra,
at para. 25; Canada
(Minister of Citizenship and Immigration) v. Xia,
2002 FCT 453, [2002] F.C.J. No. 613 (QL), at para. 25). When it comes to
establishing a connection, there must be some evidence that would demonstrate a
reaching out to the Canadian community or a rationale explanation for the lack
such evidence, not merely passive indicia (Xia, supra, at para.
26).
[19]
In the present case, I find that the citizenship
judge’s decision was reasonable. He examined the applicant’s situation in light
of the six Koo (Re) factors, highlighting the applicant’s numerous trips
abroad to Colombia, his home country, the fact that he retained his medical
practice and glasses outlet in that country and also that the applicant is an
investor and administrator of two Canadian construction companies. Based on
these factors it was reasonable for the Judge to conclude that the applicant’s
absences were not temporary but rather a structural pattern of life.
[20]
It is true that, with the exception of the
applicant’s failure to remit tax to Canadian authorities, the Judge did not
refer to any of the passive indicia of residency; however, as stated above,
passive indicia on their own do not suggest that the applicant has centralized
his mode of existence in Canada.
[21]
Further, while the Judge stated that the
presence of the applicant’s family in Canada was a “huge factor” it was not determinative. The applicant’s
willingness to travel abroad in order to provide for his family is commendable;
however, based on the totality of factors; I find that the Judge reasonably
concluded that the applicant has a stronger connection to Colombia than to Canada.
[22]
I would add that while the citizenship judge did
refer to the time spent by the applicant in Colombia after submitting his
citizenship application and thus outside of the relevant time period, it is
clear that this is similar to the recent case of Chen v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1140, at para. 15, wherein
Layden-Stevenson J. stated that “[i]n referring to absences outside the
relevant period, the judge was merely placing [the] application in its context.
There was nothing within that overall context that pointed to a result
different than the one arrived at with respect to the relevant period.” I
believe the same reasoning holds true in this case.
Were the
reasons provided adequate?
[23]
The provision of reasons is statutorily
mandated. Section 14(3) of the Act, requires that the citizenship judge “shall
notify the applicant of his [negative] decision, of the reasons therefore and
of the right to appeal.”
[24]
In VIA Rail Canada Inc. v. National
Transportation Agency, [2001] 2 F.C. 25, [2000] F.C.J. No. 1685 (QL),
at paras. 21-22, the Federal Court of Appeal asserted that the duty to give
reasons will be fulfilled if the reasons provided are adequate. Further the
Court held that:
The obligation
to provide adequate reasons is not satisfied by merely reciting the submissions
and evidence of the parties and stating a conclusion. Rather, the decision
maker must set out its findings of fact and the principal evidence upon which
those findings were based. The reasons must address the major points in issue.
The reasoning process followed by the decision maker must be set out and must
reflect consideration of the main relevant factors.
[25]
Moreover, in Tulupnikov v. Canada (Minister of Citizenship and Immigration), 2006 FC 1439, [2006] F.C.J. No. 1807 (QL), at paras. 19-20,
Gibson J., relying on Layden-Stevenson J.’s analysis in Ahmed
v. Canada
(Minister of Citizenship and Immigration), 2002 FCT
1067, [2002] F.C.J. No. 1415 (QL), at para.13, highlighted the fact that
in assessing the adequacy of the reasons provided, the citizenship judge is not
held to some abstract standard of perfection.
[26]
In my opinion, the reasons were adequate
for the purpose of providing the applicant with an understanding of why his
application was denied. They contained an analysis of the Koo (Re) factors
and an application of those factors to the particular circumstances of the
applicant’s case as well as the conclusions regarding where the applicant has
centralized his mode of existence.
[27]
For these reasons, the appeal of the
citizenship judge’s decision is dismissed without costs.
JUDGMENT
[28]
THIS
COURT ORDERS that the appeal of the citizenship judge’s decision is dismissed without
costs.
“Danièle Tremblay-Lamer”
Email this Content