Date: 20080414
Docket: T-1223-07
Citation: 2008 FC 477
Vancouver, British Columbia, April 14, 2008
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
MUHAMMAD
ISHFAQ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr. Huhammad Ishfaq applied for Canadian citizenship in 2007. He
appeared before a citizenship judge who concluded that he had failed to meet
the residency requirement set out in the Citizenship Act, R.S.C. 1985,
c. C-29, s. 5(1)(c) (see Annex “A” attached). The judge dismissed his
application.
[2]
Mr. Ishfaq argues that the judge’s decision was unreasonable in light of
the evidence. He asks me to quash the decision and order his application
to be re-assessed. However, I cannot find a basis for overturning the judge’s
decision and must, therefore, dismiss this appeal.
I.
Issue
[3]
Was the judge’s conclusion that Mr. Ishfaq failed to meet the residency
requirement of the Citizenship Act reasonable?
II. Analysis
[4]
I can overturn the judge’s decision only if I find it was unreasonable,
in the sense that it falls outside the “range of possible, acceptable outcomes
which are defensible in respect of the facts and law”: Dunsmuir v. New
Brunswick, 2008 SCC 9, at para. 47.
(a) The
Residency Requirement
[5]
Applicants for Canadian citizenship must show that they were resident in
Canada for three out of the four years preceding their applications (Citizenship
Act, s. 5(1)(c)). They can meet this requirement by proving physical
presence in Canada for at least three years or by showing that they have
established and maintained such strong ties to Canada that their absences can
still be counted in their favour, even though they have not been physically
present in Canada for the required three years: Canada (Minister of
Citizenship and Immigration) v. Nandre, 2003 FCT 650.
(b) Factual
Background
[6]
Mr. Ishfaq left his native Pakistan in 1996. He traveled to Switzerland
where he lived until coming to Canada in April 2001. His family remains in Pakistan.
In 2003, he accepted a job with the International Committee of the Red Cross
(ICRC). This position requires him to travel extensively.
[7]
Mr. Ishfaq applied for Canadian citizenship on August 27, 2004. Therefore,
to meet the residency requirement, Mr. Ishfaq had to establish that he was physically
present in Canada for three years between the time of his arrival in 2001 and
the date of his application in 2004, or that he should be credited for his
absences because he had established and maintained a strong connection with Canada.
In fact, Mr. Ishfaq was present in Canada for a total of 811 days during that
time period, leaving him 284 days short of the required three years (being 1095
days).
[8]
To show that he was an established resident of Canada, and to support
his position that he should be credited for time spent outside of Canada, Mr.
Ishfaq presented numerous documents, including his contract with the ICRC,
identity cards, and his current and previous passports.
(c) The
Decision under Appeal
[9]
In a detailed, seven-page decision, the citizenship judge reviewed the
documentation Mr. Ishfaq had supplied, as well as his statements during the
interview, and noted that:
• Mr. Ishfaq had failed to provide details about his living
arrangements in Canada between the time of his arrival in April 2001 and his
departure in February 2003;
• he had purchased land in Pakistan;
• he had no proof of any banking transactions or investments in
Canada;
• he had no evidence of any employment in Canada or income tax
assessments; and
• there were many unexplained discrepancies between his
declared absences from Canada and date stamps in his passports.
[10]
The judge went on to consider the factors set out in the case of Re
Koo, [1992] F.C.J. No. 1107 (QL) to determine whether Mr. Ishfaq had
centralized his mode of existence in Canada and found that:
• Mr. Ishfaq had spent one year and 303 days in Canada after
his arrival in April 2001. Since then, he had been absent from Canada on many
occasions, for as long as 309 days at a time;
• his family lives in Pakistan;
• his documentary evidence did not establish that Canada was
his principal place of residence;
• he had “visited” Canada a number of times while on leave;
• he was considerably short (284 days) of the three-year
residency requirement;
• his absences did not appear to be temporary, given that his
employment with the ICRC was ongoing, at least until 2008; and
• he had not established a substantial connection with Canada;
he has a more substantial connection with Pakistan.
[11]
Based on these considerations, the judge concluded that Mr. Ishfaq had
failed to meet the residency requirement.
(d) Discussion
and Conclusion
[12]
Mr. Ishfaq argues that the citizenship judge failed to appreciate the
evidence supporting his application. First, the judge failed to consider whether
Mr. Ishfaq had established his residence in Canada during the one-year and
309-day period after his arrival in Canada in 2001. Second, the judge made
factual errors in the analysis of the factors set out in Re Koo, above.
[13]
Regarding the first alleged error, the judge clearly took account of the
period of time that Mr. Ishfaq had spent in Canada before he left to work for
the ICRC. However, there was little evidence before him showing that Mr. Ishfaq
had established himself in any significant way during that period. In
particular, he provided little information about his living arrangements,
financial history, income, or community involvement, if any, and there remained
the unexplained absences recorded in his passports.
[14]
Regarding the other relevant factors, the judge was entitled to consider
that Mr. Ishfaq’s family remained in Pakistan, that he made short visits to
Canada while on leave from his job, that his position with the ICRC was
ongoing, and that, overall, his connection with Pakistan was stronger than his
connection with Canada. On the latter point, Mr. Ishfaq contested the judge’s
finding that he possessed a passport issued in Pakistan when, in fact, it had
been issued in Myanmar. The judge did state that Mr. Ishfaq possessed a
passport issued in Pakistan when, in fact, it had been issued by the Pakistani
embassy in Myanmar. However, nothing appears to have turned on this minor
factual error. The judge did not find, as Mr. Ishfaq alleges, that he had lived
in Pakistan at any time after 1996. His finding that Mr. Ishfaq’s connection to
Pakistan was greater than his attachment to Canada was based on his having
property and family there. While this connection was not particularly strong, I
cannot find the judge’s conclusion that it exceeded his ties to Canada was
unfounded.
[15]
In short, Mr. Ishfaq argues that the judge failed unreasonably to
recognize that he had no real connection with any other country. Therefore, the
judge should have found that he had such a substantial connection with Canada
that he should have been considered a resident even while he worked abroad.
However, I cannot find any basis for overturning the judge’s decision. The
absence of any significant connection with other countries does not, in my
view, constitute proof of a substantial attachment to Canada. I cannot find,
therefore, that the judge’s conclusion was unreasonable.
[16]
Accordingly, this appeal must be dismissed.
JUDGMENT
THIS COURT’S JUDGMENT is
that
1. The appeal is dismissed.
“James
W. O’Reilly”
Annex “A”
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Citizenship Act, R.S.C. 1985, c. C-29
Grant of citizenship
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;
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Loi sur la citoyenneté, L.R., 1985, ch.
C-29
Attribution de la citoyenneté
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;
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