Date: 20080618
Docket: T-1892-07
Citation: 2008 FC 757
Ottawa, Ontario, June 18th 2008
PRESENT: The Honourable Orville Frenette
BETWEEN:
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
HANI
HUSSEIN
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Minister of Citizenship and Immigration (the “Minister”) seeks to set aside the
decision of a Citizenship Judge on September 13, 2007 to grant Mr. Hussein (the
“Applicant”) citizenship despite his falling short of the residency
requirements set out in paragraph 5(1)(c) of the Citizenship Act, R.S.C.
1985, c.C-29 (the “Act”).
[2]
Mr.
Hussein was born in Jordan and became a permanent resident of Canada on June 28,
2003. Before coming to Canada, he had worked as an accountant at the University
of Jordan. At the time
of his application for Canadian citizenship on October 7, 2006, he had been
physically present in Canada for 984 days and absent for 212. The
absences were a trip to Jordan from June 10 to September 17, 2005 to look after
his ailing mother and from May 29 to September 19, 2006 to visit family and to
work in Oman. On June 4,
2006 Mr. Hussein accepted a job offer to work in Muscat, Oman for a 2-year
contract, terminating on June 28, 2008. These absences left him a total of 111
days short of the 1095 days of physical presence required and 212 days absent
from the country in the 1460 days preceding his application.
[3]
Mr.
Hussein’s wife and two young children arrived with him in 2003 and also applied
for (and were granted) citizenship. They did not accompany him on his earlier travels,
but after their application for citizenship (around November 2006) they joined
him in Oman, where they since
have all resided in a rented house.
I. The decision
[4]
The
Citizenship Judge, in a ¾ page hand-written decision, without analysis of the
evidence, decided to grant citizenship by crediting the days Mr. Hussein was physically
out of Canada toward his residency requirement; he accepted that he had to
leave to obtain adequate employment and was saving money to open a business Canada. He also
noted the relative total numbers of absence and presence (i.e. 212 vs. 984).
II. The issues
[5]
The
Applicant urges the Court to decide on four issues, but there is really only
one issue in this case: “Did the Citizenship Judge err in granting citizenship
to Mr. Hussein, when he was 111 days short of the requirement?”
III. The applicable
legislation
[6]
The
provisions of section 5 of the Act are as follows:
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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;
(d) has an adequate knowledge of one of
the official languages of Canada;
(e) has an adequate knowledge of Canada and of the responsibilities
and privileges of citizenship; and
(f) is not under a removal order and is
not the subject of a declaration by the Governor in Council made pursuant to
section 20.
Residence
(1.1)
Any day during which an applicant for citizenship resided with the
applicant’s spouse who at the time was a Canadian citizen and was employed
outside of Canada in or with the Canadian armed forces or the federal public
administration or the public service of a province, otherwise than as a
locally engaged person, shall be treated as equivalent to one day of
residence in Canada for the purposes of paragraph (1)(c) and subsection
11(1).
Idem
(2)
The Minister shall grant citizenship to any person who
(a) is a permanent resident within the
meaning of subsection 2(1) of the Immigration and Refugee Protection Act, and
is the minor child of a citizen if an application for citizenship is made to
the Minister by a person authorized by regulation to make the application on
behalf of the minor child; or
(b) was born outside Canada, before
February 15, 1977, of a mother who was a citizen at the time of his birth,
and was not entitled, immediately before February 15, 1977, to become a
citizen under subparagraph 5(1)(b)(i) of the former Act, if, before February
15, 1979, or within such extended period as the Minister may authorize, an
application for citizenship is made to the Minister by a person authorized by
regulation to make the application.
Waiver
by Minister on compassionate grounds
(3)
The Minister may, in his discretion, waive on compassionate grounds,
(a) in the case of any person, the
requirements of paragraph (1)(d) or (e);
(b) in the case of a minor, the
requirement respecting age set out in paragraph (1)(b), the requirement
respecting length of residence in Canada set out in paragraph (1)(c) or the
requirement to take the oath of citizenship; and
(c) in the case of any person who is
prevented from understanding the significance of taking the oath of
citizenship by reason of a mental disability, the requirement to take the
oath.
Special
cases
(4)
In order to alleviate cases of special and unusual hardship or to reward
services of an exceptional value to Canada, and notwithstanding any other
provision of this Act, the Governor in Council may, in his discretion, direct
the Minister to grant citizenship to any person and, where such a direction
is made, the Minister shall forthwith grant citizenship to the person named
in the direction.
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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;
d) a une connaissance suffisante de
l’une des langues officielles du Canada;
e) a une connaissance suffisante du
Canada et des responsabilités et avantages conférés par la citoyenneté;
f) n’est pas sous le coup d’une mesure
de renvoi et n’est pas visée par une déclaration du gouverneur en conseil
faite en application de l’article 20.
Période
de résidence
(1.1)
Est assimilé à un jour de résidence au Canada pour l’application de l’alinéa
(1) c) et du paragraphe 11(1) tout jour pendant lequel l’auteur d’une demande
de citoyenneté a résidé avec son époux ou conjoint de fait alors que celui-ci
était citoyen et était, sans avoir été engagé sur place, au service, à
l’étranger, des forces armées canadiennes ou de l’administration publique
fédérale ou de celle d’une province.
Idem
(2) Le
ministre attribue en outre la citoyenneté :
a) sur demande qui lui est présentée
par la personne autorisée par règlement à représenter celui-ci, à l’enfant
mineur d’un citoyen qui est résident permanent au sens du paragraphe 2(1) de
la Loi sur l’immigration et la protection des réfugiés;
b) sur demande qui lui est présentée
par la personne qui y est autorisée par règlement et avant le 15 février 1979
ou dans le délai ultérieur qu’il autorise, à la personne qui, née à l’étranger
avant le 15 février 1977 d’une mère ayant à ce moment-là qualité de citoyen,
n’était pas admissible à la citoyenneté aux termes du sous-alinéa 5(1)b)(i)
de l’ancienne loi.
Dispenses
(3)
Pour des raisons d’ordre humanitaire, le ministre a le pouvoir
discrétionnaire d’exempter :
a) dans tous les cas, des conditions
prévues aux alinéas (1)d) ou e);
b) dans le cas d’un mineur, des
conditions relatives soit à l’âge ou à la durée de résidence au Canada
respectivement énoncées aux alinéas (1)b) et c), soit à la prestation du
serment de citoyenneté;
c) dans le cas d’une personne incapable
de saisir la portée du serment de citoyenneté en raison d’une déficience
mentale, de l’exigence de prêter ce serment.
Cas
particuliers
(4)
Afin de remédier à une situation particulière et inhabituelle de détresse ou
de récompenser des services exceptionnels rendus au Canada, le gouverneur en
conseil a le pouvoir discrétionnaire, malgré les autres dispositions de la
présente loi, d’ordonner au ministre d’attribuer la citoyenneté à toute
personne qu’il désigne; le ministre procède alors sans délai à
l’attribution.
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IV. The nature of the
recourse from a Citizenship Judge
[7]
Before
discussing the standard of review, one must consider that citizenship “appeals”
are not ordinary appeals nor trials de novo; they are governed by s.
18(1)(4) of the Federal Courts Act (R.S., 1985, c. F-7 ).
[8]
Therefore,
to set aside a decision of the Citizenship Court, the Federal Court must
find a reviewable error (Canada (MCI) v. Tovbin (2000), 190 F.T.R.
102, 10 Imm. L.R. (3d) 306 (FCTD). As for the standard of review, relating to
the period of time required, the interpretation of s. 5 gave rise to various
interpretations of the word “residing” which was not defined in the Citizenship
Act (Canada (MCI) v. Chen, 2003 FCT 192, 228 F.T.R. 111; Goudimenko
v. Canada (MCI), 2002 FCT 447, 113 A.C.W.S. (3d) 766 (Goudimenko)).
[9]
Case
law reveals that the Federal Court has interpreted the word “residency” by
invoking tests such as “the centralised mode of existence test” or the “quality
of attachment test” but the law stipulates that the basic test is the physical
presence in Canada at the appropriate time (Canada (MCI) v. Adler, 2002
FCT 227, 23 Imm. L.R. (3d) 241).
[10]
The
Act is very specific in that the basic test is the physical presence in Canada and it is
only when this test fails, that the secondary tests created by the
jurisprudence can be invoked.
V. The Standard of
review
[11]
It
has been decided that the standard of review on an appeal of this nature
invoked here is correctness insofar as it relates to the applications of the
residency statutory test set out in para. 5(1)(c) of the Act, i.e. was
there residency in Canada? (Lam v. Canada (MCI) (1999), 164
F.T.R. 177, 87 A.C.W.S. (3d) 432; Zhang v. Canada (MCI), 2001 FCT 501, 105
A.C.W.S. (3d) 1017 (T.D.) at para. 7.
[12]
In
Goudimenko, above, Justice Layden-Stevenson suggested the existence of
two stages required with respect to the residency requirements and the
relationship between these stages. At the first stage, the Court determines if
residency in Canada was
established. If not, the matter ends there. If it is established there was
residency, the required numbers of years or days and the various tests to apply
as whether absences can be deemed residence must be decided.
[13]
The
question as to whether the residency requirement has been met involves a mixed
question of law and fact; it is to be decided according to the standard of reasonableness
(Farshchi v. Canada (MCI), 2007 FC 487, 157 A.C.W.S. (3d) 701).
[14]
However,
it is recognized that some deference is granted to citizenship decisions by
nature of the special degree of knowledge and experience of citizenship judges
(Chen v. Canada (MCI), 2004 FC 1693 at para. 5, 135 A.C.W.S. (3d) 773;
Morales v. Canada (MCI), 2005 FC 778, 45 Imm. L.R. (3d) 284).
[15]
My
colleague Justice Edmond P. Blanchard recently noted the effect of the Supreme
Court’s decision in Dunsmuir v. New Brunswick, 2008 SCC 9,
164 A.C.W.S. (3d) 727, on the review of the decision of a citizenship judge. He
came to the conclusion that the appropriate standard is reasonableness and I
concur in that finding: Zhang v. Canada (Minister of
Citizenship and Immigration), 2008 FC 483, [2008] F.C.J. No. 603 (QL).
[16]
That
means that, as noted by Justice James O’Reilly in Ishfaq v. Canada (MCI),
2008 FC 477, [2008] F.C.J. No. 598:
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] S.C.J. No. 9, 2008
SCC 9, at para. 47.
VI. Analysis
[17]
The
Applicant wishes me to find that the Citizenship Judge erred either in applying
the wrong test or by erroneously crediting the respondent with establishment in
Canada throughout
his absences. For the former allegation, he states that it is unclear which
approach the Citizenship Judge took and that if he invoked the centralized mode
of living test set out in Koo Re, [1993] 1 F.C. 286, [1992] F.C.J. No.
1107 (QL) (Koo), it was misinterpreted.
[18]
The
respondent asserts that there was sufficient evidence before the Judge to
support his finding based on the “centralized mode of living” assessment, given
the continuous residence of his wife and sons and that the decision to credit
him with residence was reasonable. The respondent also notes that his wife and
children are being deprived of their status, despite having qualified on the
basis of the strict physical presence test. He claims their presence or absence
from Canada after their
application for citizenship is immaterial.
[19]
The
Applicant relies upon the decision in Xu v. Canada (MCI), 2005 FC 700, 139
A.C.W.S. (3d) 433, where Justice de Montigny set aside a decision refusing
citizenship in favour of an Applicant who had been in Canada for 571 days out
of 1095. However, the evidence showed she travelled to China with her
husband who was CEO of a company in Canada which had a joint
venture with a Chinese company. They maintained a residence in Canada and has
fixed roots here.
[20]
The
first test, as has been noted many times by this Court, is quantitative: the
numeric assessment of days the person was physically resident in Canada. The second
is qualitative: the deemed residence on the basis of a centralized mode of
living. The factors which may be assessed under the second test to determine
whether to deem residence despite physical absence, as set out in Koo,
are as follows:
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 1,095-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 employment
abroad?
6)
What is
the quality of the connection with Canada:
is it more substantial than that which exists with any other country?
[21]
For
the instant case, it is unfortunate that the Citizenship Judge failed to
individually analyse each of the Koo factors. He did not refer to any
test. There is no analysis of the evidence and the reasons given are
insufficient to constitute a thorough appreciation of the law and the facts.
[22]
The
Citizenship Judge failed to explain adequate reasons for failure to respect the
requirement of the s. 5(1) c) of the Act by the Respondent. He did not
analyse or comment upon the lengthy time the Respondent spent outside Canada between 2003
and 2006. Since June 4, 2006, he accepted employment for a period of two years
in Oman. His wife
and children joined him in November 2006 and they have no residence in Canada since then.
[23]
I
realise that the judge could take into account, as one of the Koo factors,
the employment and residence outside the country and explain why it was not
necessarily a negative factor.
[24]
In
the Leung case, the Court rejected an appeal by a citizenship Applicant
who had a shortfall of physical residence because of the employment outside
Canada and the Court explained why working outside Canada can not always be a
valid reason for deemed residence. An Applicant for citizenship does not have
the same freedom as a Canadian citizen because of the provisions of s. 5(1) of
the Act (see Leung (Re) (1991), 42 F.T.R 149 (FCTD), 13
Imm. L.R. (2d) 93).
[25]
In
another case where the facts resemble the ones in the present one, Justice Kelen
decided that employment in the U.S., limiting Mr. Barker to a physical presence
in Canada of 892 out of 1095 days during a four-year period, notwithstanding a
long desire to return to Canada, did not satisfy the residency requirement of
the Act (Canada (MCI) v. Barker, 2003 FCT 226, 229 F.T.R. 154).
[26]
Justice
Kelen reasoned that Mr. Barker had not centralized his mode of existence in
Canada after his move to the U.S. Justice Kelen also decided that the Applicant’s
intention to return to Canada after 2004 should not have been considered
by the Citizenship Judge (para.19)
[27]
Therefore,
considering the above analysis, I must conclude that the Citizenship Judge committed
a reviewable error which compels me to annul the decision he rendered in the
present case.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1.
The
appeal be granted; and
2.
The
decision of the Citizenship Judge be quashed.
"Orville
Frenette"
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