Date: 20080128
Docket: T-1119-07
Citation: 2008 FC 106
Ottawa, Ontario, January 28, 2008
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
BASHIR
AHMED ABDEL GAYOUM ALI
Applicant
and
CITIZENSHIP
AND IMMIGRATION CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
applicant is appealing the decision of Citizenship Judge George Springate (the
Citizenship Judge), dated March 7, 2007 and communicated to the applicant by
letter dated April 20, 2007 (the Decision), wherein it was decided that the
applicant did not meet the residency requirements set out in paragraph 5(1)(c)
of the Citizenship Act, R.S.C. 1985, c. C-29 (the Act) in order to be
granted Canadian citizenship.
[2]
The
residency requirement is set out at paragraph 5(1)(c) of the Act, which
reads as follows:
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5.
(1) The Minister shall grant citizenship to any person who
(a)
makes application for citizenship;
(b)
is eighteen years of age or over;
(c)
is a permanent resident within the meaning of subsection 2(1) of the
Immigration and Refugee Protection Act, and has, within the four years
immediately preceding the date of his or her application, accumulated at
least three years of residence in Canada calculated in the following manner:
(i)
for every day during which the person was resident in Canada before his
lawful admission to Canada for permanent residence the person shall be deemed
to have accumulated one-half of a day of residence, and
(ii)
for every day during which the person was resident in Canada after his lawful
admission to Canada for permanent residence the person shall be deemed to
have accumulated one day of residence;
|
5. (1) Le ministre attribue la
citoyenneté à toute personne qui, à la fois :
a) en fait la demande;
b) est âgée d’au moins dix-huit ans;
c) est un résident permanent au sens du
paragraphe 2(1) de la Loi sur l’immigration et la protection des réfugiés et
a, dans les quatre ans qui ont précédé la date de sa demande, résidé au
Canada pendant au moins trois ans en tout, la durée de sa résidence étant
calculée de la manière suivante :
(i) un demi-jour pour chaque jour de
résidence au Canada avant son admission à titre de résident permanent,
(ii) un jour pour chaque jour de
résidence au Canada après son admission à titre de résident permanent;
|
[3]
The applicant,
a citizen of Sudan, obtained his permanent
residence status when he landed in Canada
with his family on June 7, 2000. The applicant works for Alternatives,
an international development non-governmental organization and has been on assignments
overseas, in Sudan, the Netherlands, Egypt and
the United Kingdom, since becoming a Canadian
permanent resident. Alternatives is a not-for-profit registered charity with
Revenue Canada that is partially funded by the Canadian
International Development Agency, Foreign Affairs and International Trade
Canada and Industry Canada. Alternatives’ head office is
in Montreal, Quebec.
[4]
The Citizenship
Judge, not convinced that the applicant fulfilled the residency requirement
under the Act, rendered his Decision on March 7, 2007. The Citizenship Judge
found that the applicant was 305 days short of the minimum 1,095 days of
residence within the four years immediately preceding the date of his
application. The applicant was informed of this by letter dated April 20, 2007 which
summarizes the Decision, in part, as follows:
In these circumstances, you had to
convince me, in order to meet the residence requirements, that your absences
from Canada [which totalled 398 days] could be considered as a period of
residence in Canada.
Federal Court precedents require that, to
establish residence, an individual must show, in mind and in fact, a
centralization of his or her mode of living in Canada. If such residence is established,
absences from Canada do not affect this residence,
as long as it is demonstrated that the individual left for a temporary purpose
only and maintained in Canada some real and tangible form
of residence.
I carefully examined your case to
determine if you established residence in Canada before your absences so that these
absences could be considered as a period of residence; and if during your
absences you maintained sufficient links with Canada. The facts lead me to the conclusion
that you have not established nor maintained residence in Canada and therefore you do not meet
the residence requirements.
[5]
The issue
on appeal is whether the Citizenship Judge erred in concluding that the
applicant failed to meet the requirements for Canadian citizenship set out in
paragraph 5(1)(c) of the Act. The question of whether a person has met the
residency requirement under the Act is a question of mixed law and fact. Citizenship
judges are owed some deference by virtue of their special degree of knowledge
and experience.
[6]
Applying
a pragmatic and functional analysis to the review of the decisions of
citizenship judges respecting the residency requirement of the Act, several
judges of this court have concluded that the appropriate standard is reasonableness
simpliciter: Gunnarson v. Canada (Minister of Citizenship and Immigration),
[2004] F.C.J. No. 1913 (QL), 2004 FC 1592; Rasaei v. Canada (Minister of
Citizenship and Immigration), [2004] F.C.J. No. 2051 (QL), 2004 FC 1688; Chen
v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No.
2069 (QL), 2004 FC 1693 (Chen); and Zeng v. Canada (Minister of
Citizenship and Immigration), [2004] F.C.J. No. 2134 (QL), 2004 FC 1752. I
accept that this is the appropriate standard of review.
[7]
Likewise,
I adopt the reasoning of Justice Mosley in Huang v. Canada (Minister of Citizenship
and Immigration.),
[2005] F.C.J. No. 1078 (QL), 2005 FC 861, where at para. 12, he found that, "for
pure questions of fact greater deference should be shown to the Citizenship
Judge's findings resulting in a standard of patent unreasonableness." Accordingly,
I conclude that the appropriate standard of review applicable to the principal
issue in this appeal is one of reasonableness simpliciter, and that the
purely factual findings of the Citizenship Judge are reviewable on a standard
of patent unreasonableness.
[8]
The
term "residence" is not defined by statute but rather by case law. The
Federal Court's jurisprudence has yielded three distinct approaches to
residence. A citizenship judge may adopt and apply whichever one she or he chooses
as long as it is applied properly: Lam v. Canada (Minister of Citizenship
and Immigration), [1999] F.C.J. No. 410 (QL), 164 F.T.R. 177 (Lam). These
different approaches were summarized in Zhao v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 1923 (QL), 2006 FC 1536, at
paras. 50 and 51, as follows :
Under
the first test, a person cannot reside in a place where the person is not
physically present. Thus, it is necessary for a potential citizen to establish
that he or she has been physically present in Canada
for the requisite period of time. This flows from the decision in Pourghasemi
(Re) (F.C.T.D.) (1993), 62 F.T.R.122, 19 Imm. L.R. (2d) 259 at paragraph 3
(F.C.T.D.), where Justice Muldoon emphasized how important it is for a
potential new citizen to be immersed in Canadian society. Two other contrary
tests represent a more flexible approach to residency. First, Thurlow A.C.J. in
Papadogiorgakis, [1978] 2 F.C. 208, 88 D.L.R. (3d) 243 (F.C.T.D.) held
that residency entails more than a mere counting of days. He held that
residency is a matter of the degree to which a person, in mind or fact, settles
into or maintains or centralizes his or her ordinary mode of living, including
social relations, interests and conveniences. The question becomes whether an
applicant's linkages suggest that Canada is his or her home, regardless of any
absences from the country.
Justice
Reed has outlined the third approach, which is really just an extension of
Justice Thurlow's test. In Re: Koo, [1993] 1 F.C. 286 59 F.T.R. 27
(F.C.T.D.), Justice Reed held that the question before the Court is whether Canada is the country in which an applicant has centralized his or
her mode of existence. This involves consideration of several factors:
1.
Was the individual
physically present in Canada for a long period prior to recent
absences which occurred immediately before the application for citizenship?
2.
Where are the
applicant's immediate family and dependents (and extended family) resident?
3.
Does the pattern of
physical presence in Canada indicate a returning home or merely
visiting the country?
4.
What is the extent of
the physical absences - if an applicant is only a few days short of the 1095
day total it is easier to find deemed residence than if those absences are
extensive?
5.
Is the physical
absence caused by a clearly temporary situation such as employment as a
missionary abroad, following a course of study abroad as a student, accepting
temporary employment abroad, accompanying a spouse who has accepted temporary
employment abroad?
6.
What is the quality
of the connection with Canada: is it more substantial than that which
exists with any other country?
The
general principle is that the quality of residence in Canada must be more substantial than elsewhere. See also Lin v.
Canada (Minister of Citizenship and
Immigration) (2002), 21
Imm. L.R. (3d) 104, 2002 FCT 346.
[9]
In
the case at bar, the Citizenship Judge in his Decision dated March 7, 2007, applied
the test set out in Re: Koo, above, to determine whether Canada was the
place where the applicant "regularly, normally or customarily lives"
based on his assessment of the six factors identified by Justice Reed, above.
Factor 1: Was the individual physically present
in Canada for a long period prior
to recent absences which occurred immediately before the application for
citizenship?
[10]
The
applicant arrived in Canada on June 7, 2000. The
Citizenship Judge found that he remained in Canada for approximately three and a half months
before he returned to Sudan on behalf of Alternatives.
He was out of Canada for 83 days on what the
applicant termed an “official visit to development [sic].” The Citizenship
Judge stated in his Decision that seven other absences from Canada followed,
six of which saw the applicant travel to Sudan. All of the absences were for Alternatives and
they ranged in days absent from 22 to 74. The applicant traveled to Sudan for 21 days in May 2003
and 20 days in June and July of that same year. He applied for Canadian citizenship
on September 8, 2003. A few days later he and his family left Canada for Egypt as he had signed a
four-year contract to work with Alternatives in that country.
Factor 2: Where are the applicant's immediate
family and dependents (and extended family) resident?
[11]
According
to the Citizenship Judge’s Decision, the applicant’s wife and two school-aged
children were in Canada during his material
time period. They all left Canada a few days after the applicant had applied for Canadian
citizenship. As of the time the Citizenship Judge was reviewing the applicant’s
file (approximately 42 months later), the entire family had not regained
residence in Canada. The applicant has a
brother and sister who reside in Sudan.
Factor 3: Does the pattern of physical presence
in Canada indicate a returning
home or merely visiting the country?
[12]
With
respect to the third factor, the Citizenship Judge stated in his Decision that the
applicant’s wife and two children were in Canada with him and the children attended school
here. However, a separate Canadian citizenship file was found to show the
applicant’s wife was out of Canada on 505 days over her material time period. Further, the
applicant informed the Citizenship Judge that his children have attended school
in Egypt ever since the family left Canada in September 2003. The Citizenship Judge
noted, “since the applicant entered Canada on June 7, 2000 to today, the applicant has
been physically present in Canada for some 800 days – over a 2,460 day period.” The
Citizenship Judge also considered the applicant’s employment history with
Alternatives.
4. What is the extent of the physical absences -
if an applicant is only a few days short of the 1095 day total it is easier to
find deemed residence than if those absences are extensive?
[13]
The
fourth factor identified in Re: Koo, above, recognizes that it is easier
to deem an individual to be resident if her/his absences place her/him only a
few days short of the 1,095 day total. Nevertheless, in this case, the
Citizenship Judge emphasized that the applicant was absent 398 days and physically
present in Canada for only 790 days.
Faced with a shortfall of 305 days, the Citizenship Judge concluded in his
Decision: “Obviously the applicant is not merely a ‘few days short of the 1095 day
total.’ ”
5. Is the physical absence caused by a clearly
temporary situation such as employment as a missionary abroad, following a
course of study abroad as a student, accepting temporary employment abroad,
accompanying a spouse who has accepted temporary employment abroad?
[14]
With
respect to this fifth factor, the Citizenship Judge’s Decision reads:
There
is nothing temporary about what the applicant did. He, of his own free will,
decided to work for Alternatives – outside of Canada.
Immediately following his material time period, he signed a four-year contract
to work for Alternatives in Egypt. Note that his entire family left with
him at that time.
6. What is the quality of the connection with Canada: is it more substantial
than that which exists with any other country?
[15]
In
the Decision, the Citizenship Judge re-iterated that the applicant has a
substantial shortfall of 305 days. He noted that the applicant traveled out of
Canada on eight occasions during his material time period and that seven of
those absences were trips to Sudan.
He further noted that a few days after applying for citizenship the applicant
and his family left Canada on a four year contract
to work in Egypt; his children are enrolled in school in Egypt; and, they “have not
returned to live in Canada since they left 42
months ago.” The Citizenship Judge acknowledged the applicant purchased a
revenue-producing residence in Canada two weeks prior to his application. Although the applicant
had written in his residence questionnaire that he held no property outside of
Canada, at the hearing the Citizenship Judge was informed by the applicant that
he owns property in Sudan. Indeed, the applicant
admitted he was the owner of this property prior to, during and following the
material time.
[16]
According
to the Citizenship Judge’s Decision:
I
have thought the case over many times. And, I always come back to what the
applicant said to me at the end of his hearing. He said he needed a Canadian
passport. That would make his travel between countries much easier than
traveling with a passport from Sudan.
His
statement dovetails with what attorney Richard Sheitoyan - Adjucorp
International of Canada and the applicant’s advisors in the matter – wrote in a
December 12, 2006 letter to Citizenship and Immigration Canada. In part the
lawyer wrote:
We call your attention to the fact that
Mr. Ali needs to travel from one country to another to carry out “government
missions.” On average he spends two to three weeks in every country and every
time he has to travel he is required an entry visa for each of these country
(sic). This adds additional delay and jeopardizes his work. In order to
alleviate these difficulties, a Canadian passport would greatly facilitate his
work.
[17]
On
the basis of this evidence, the Citizenship Judge noted that Canadian citizenship
was not the vital issue. Rather, a Canadian passport as a “flag of
convenience” was found to be the pressing need. He also reiterated that if the
applicant worked for the Canadian government, his days working outside of Canada would have counted as
‘physical presence days’. However, in this instance, it was concluded: “No
matter how charitable and heart warming his work, his days out of Canada do not count – they are
considered absences.” Further, his pattern of work with Alternatives was
found to clearly show that work outside of Canada is permanent and not temporary.
[18]
Having
assessed the six factors identified in Re: Koo, above, the Citizenship
Judge stated that the applicant’s connection to Sudan is much higher than his connection to Canada. He concluded that the
applicant had not satisfied the residence requirement under the Act.
[19]
The
Citizenship Judge also considered whether to make a recommendation for an
exercise of discretion under subsections 5(3) and (4) of the Act (as is required
under subsection 15(1) of the Act). These exceptional provisions allow for a
favourable recommendation in cases of special and undue hardship or where an
applicant has provided services of an exceptional value to Canada. On appeal, the applicant
does not contest the Citizenship Judge's decision not to apply his discretion
in a manner
favourable
to the applicant.
[20]
In
his memorandum of fact and law, the applicant contests the Decision of the
Citizenship Judge arguing that he failed to specify which test he relied on to
determine whether the applicant had fulfilled his residency requirements.
Further, it is argued he failed to give adequate reasons, but this latter
argument was not pressed at the hearing by counsel. However, at the hearing before
this Court, counsel for the applicant submitted that there was a breach of
procedural fairness because the Citizenship Judge failed to ask the applicant
to produce relevant documentation. Since this is an entirely new argument, not
raised in the memorandum of fact and law, I will not consider it at this late
date.
[21]
The
applicant also submits the Decision of the Citizenship Judge was unreasonable
and failed to take into consideration the specific facts of the case. The
applicant refers the Court to several factors which, in his submission,
indicate that he established a residence in Canada. The following is a summary of these
factors. From the time of his arrival in 2000 until he applied for citizenship
in 2003, the applicant and his family resided in Canada, and called no other country home. He
bought a house in Canada; had a social insurance card; health card; bank
accounts; and, his children attended school in Canada. Even though the applicant was sent on
foreign assignments for Alternatives, he received a salary in Canadian dollars;
filed income tax returns in Canada; and, always returned home to his family in Canada between missions. The
applicant argues that his connection to Canada is more substantial than it is
to Sudan or Egypt. Rather than
characterizing the periods of his stay in Canada as visits, the applicant submits that during
these periods he was "returning home" after temporary business or
employment situations required him to travel abroad.
[22]
The
applicant further submits that the Citizenship Judge based his Decision on irrelevant considerations such as where the applicant
resided following his application. It is submitted in this regard that the
language of paragraph 5(1)(c) is “backwards-looking” in orientation.
Therefore, where an applicant resides following her or his application is not a
relevant consideration. Indeed, applicant’s counsel argued that in the analysis
supporting the Decision, the Citizenship Judge noted that a few days after the applicant
filed his citizenship application, he and his family left Canada for Egypt as
he had signed a four-year contract to work with Alternatives in that country.
The Citizenship Judge emphasized that the applicant’s children have attended
school in Egypt ever since the family left Canada in September 2003. He also stated that
at the time he reviewed the applicant’s file (approximately 42 months after the
applicant’s application date), the entire family had not regained residence in Canada.
[23]
All
these arguments made by the applicant must fail.
[24]
First,
the Citizenship Judge did not misunderstand the nature of the Koo test. As
I have already noted above, the vast majority of the Decision involves the
Citizenship Judge’s application of the six questions as enunciated by Justice
Reed to the particular circumstances of the applicant’s application.
[25]
Second,
with respect to the adequacy of the Citizenship Judge's reasons, this specific
issue was defined in the context of citizenship applications by Justice Lutfy
in Lam, above, at para. 33, as an obligation to give "clear reasons
which demonstrate an understanding of the case law". This obligation is
clearly met in this case.
[26]
Third,
based on the evidence he had before him, and which has been reproduced in the
tribunal’s certified record, the Citizenship Judge was allowed to make the
findings of fact he did and the applicant has failed to convince me that these
findings are capricious or arbitrary. The applicant has in his possession
documentation that is not part of the certified tribunal record which counsel
has asked this Court to consider. As this is not an appeal de novo, I
cannot and I have not examined this additional documentation.
[27]
Fourth,
having read the Decision as a whole, the Citizenship Judge’s finding that the
applicant did not establish a residence in Canada before his absences – so that these
absences could be considered temporary and counted as a period of residence –
is clearly supported by the evidence on record.
[28]
Fifth,
the Citizenship Judge did not take into account irrelevant factors in applying
all six criteria of the Koo test. As noted above, the standard of
review applicable to this appeal is one based on reasonableness. Accordingly, "as
long as there is a demonstrated understanding of the case law and appreciation
of the facts and their application to the statutory test, deference should be
shown." (Chen, above, at para. 5). Overall, I find the Citizenship
Judge’s conclusion reasonable in the circumstances.
[29]
A citizenship
judge does not discharge a mechanical or perfunctory function but rather must
make a very important decision – the grant of Canadian citizenship – which has
profound implications. As a first step, the applicant had to demonstrate the
establishment of Canadian residency. This first step, establishment in Canada, is
essential because, unless an applicant can satisfy it, absences from Canada
will not be counted: Jreige v. Canada (Minister of
Citizenship and Immigration), [1999] F.C.J. No. 1469 (QL) at para. 25.
An issue may arise as to whether or not an applicant has established a
centralized mode of living in Canada. The issue whether the applicant had
established and maintained a residence in Canada is essentially a factual
determination involving the appreciation of the degree to which a person in
mind and fact settles into or maintains or centralizes his ordinary mode of
living with its accessories in social relations, interests and conveniences at
or in the place in question (Re Papadogiorgakis, above, at para. 14; Seiffert
v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1326
(QL), 2005 FC 1072 at para. 7; Huang (Re), [1997] F.C.J. No. 112 (QL) at
para. 2).
[30]
In
my opinion, the facts noted by the Citizenship Judge in his analysis are all
relevant as they demonstrate an appreciation of the overall quality of
connections with Canada and the degree of establishment of the
applicant. The applicant had the onus of demonstrating that he had a
centralized mode of life in Canada, and that he had satisfied the 1,095 day
requirement. The substantive shortfall of 305 days was an objective fact
indicating that the applicant has not met the residency requirements during the
relevant time period. He simply failed to satisfy the Citizenship Judge that
his numerous absences from Canada should be counted towards his period of
residence.
[31]
Accordingly,
this appeal should be dismissed. However, this does not prevent the applicant
from making an application for citizenship at a later date when the residency
requirement has been fulfilled.
ORDER
THIS COURT ORDERS that this
appeal be dismissed.
“Luc
Martineau”
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