Date: 20080820
Docket: T-43-08
Citation: 2008 FC 961
Ottawa, Ontario, August 20,
2008
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
ULLA
MUELLER
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an appeal by Ulla Mueller brought under subsection 14(5)
of the Citizenship Act, R.S.C. 1985, c. C-29 (Act) from a decision of
the Citizenship Court refusing her application for citizenship. The Citizenship
Court concluded that Ms. Mueller had failed to establish Canadian residency as
required by paragraph 5(1)(c) of the Act. It was undisputed that
she was 783 days short of the statutory requirement of 1,095 days of actual
residency within the four years preceding her application. The issue presented
on this appeal is whether the Citizenship Court erred in its assessment of her
asserted claim to constructive residency.
I. Background
[2]
In 1975 Ms. Mueller came to Canada as a dependent of her parents.
She was then nine years old. After that time she completed all of her
remaining formal education in Canada. She became a landed immigrant in 1989.
Her husband is a Canadian and served in the Canadian Air Force for 28 years. In
a written submission to the Citizenship Court, Ms. Mueller described her
history of Canadian residency as follows:
I believe my circumstances
warrant a review on compassionate grounds on the following basis. I have lived
in Canada since 1975, as a dependent on my Father’s work permits from 1975
until I became a Landed Immigrant in 1989. I completed primary and High School
in Mississauga, completed College in Toronto and worked in the Greater Toronto
area. The only time I have been outside of Canada in the 32 years since moving
here, other than for holidays, was when my husband took employment in the United
Arab Emirates from 1990-1993 as the airline industry in Canada was
particularly tough during that time, and again since 1999 which is also due to
my husband’s work. Although we have stayed in Sri Lanka longer than
anticipated, we have maintained our ties to Canada throughout. We did not want
to sell our house in Collingwood, nor did we rent it out while we have been
away. Both my husband and I have made frequent and lengthy trips back to Canada
since going to Sri Lanka and have maintained a car here since 2001. We bought a
second car in December 2006 in preparation for our return.
In the 13 months since my date of
application, I have spent over 7 months in Collingwood. I will be
returning to Colombo mid October at which time my husband and I will be
starting the packing-up process in preparation for our permanent return to
Collingwood.
Based on the above information,
together with my continuing association with the Canadian High Commission in
Sri Lanka, I believe that my ties to Canada for over 30 years are evident and
hope that they will be considered in my over-all assessment.
[3]
Ms. Mueller and her husband lived primarily in Sri Lanka between
1999 and March 2008, but during the four years immediately preceding her
application for citizenship, she frequently returned to Canada and was present
here for a total of 311 days. The record also indicates that Ms. Mueller was
employed on a contract basis by the Canadian High Commission in Sri Lanka for
lengthy periods between July 2000 and July 2007. Throughout the relevant period
she also paid Canadian income tax, maintained a Canadian household and kept up
her Canadian club memberships and social contacts.
[4]
When Ms. Mueller applied for Canadian citizenship, she was aware
that she did not meet the minimum requirement for physical presence in Canada
but asked that the Citizenship Court take into account that her absences were
temporary in nature and that her ongoing ties to Canada were sufficient to
overcome the numerical shortfall.
II. The Decision under Review
[5]
The reasons of the Citizenship Court for dismissing Ms. Mueller's
application for citizenship are set out below:
Before approving an application
for a grant of citizenship made under subsection 5(1) of the Act, I must
determine whether you meet the requirements of this Act and the regulations,
including the requirements set out in paragraph 5(1)(c) to have accumulated at
least three years (1,095 days) of residence within the four years (1,460
days) immediately preceding the date of your application. At least three years
does not mean less time; it means not fewer than 3 years.
There is Federal Court
jurisprudence which does not require physical presence of the applicant for
citizenship for the entire 1,095 days, when there are special or exceptional
circumstances. However, in my view, too long an absence from Canada, albeit
temporary, during the minimum period of time set out in the Act, as in the
present case, in contrary to the purpose of the residency requirements of the
Act. Indeed, the Act already allows a person who has been lawfully admitted to Canada
for permanent residence not to reside in Canada during one of the four years
preceding the date of that person’s application for citizenship.
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.
I have reviewed the information on
file and that you shared with me at the Hearing and I have found no compelling
reason to waive the requirements of Residency under the Act.
III. Analysis
[6]
It appears that the Citizenship Court was attempting to apply one
of the tests for constructive residency when it referred to “special or
exceptional circumstances” and to “no compelling reason to waive the
requirements of residency”. Because this language does not conform with that
found in Re Koo, [1993] 1 F.C. 286, 19 Imm. L.R. (2d) 1, and in Re
Papadogiorgakis, [1978] 2 F.C. 208, 88 D.L.R. (3d) 243, it is impossible to
identify the precise legal standard that was being applied.
[7]
This case closely resembles that of Chatoo v. Canada (Minister
of Citizenship and Immigration), [1999] F.C.J. No. 1027, where Justice Paul
Rouleau set aside a Citizenship Court decision for its failure to adequately
explain how the issue of residency was determined. Justice Rouleau described
the problem as follows:
18 In light of the facts in this
case, it would be difficult to conclude that physical presence is the
determining factor. Although the applicant has not been physically present for
the required three year period within the four years preceding his application,
he seems to have settled into, and centralized his ordinary mode of living in Canada.
19 Though the Citizenship Judge
found the absences to vitiate the applicant’s ability to obtain citizenship,
she offered no reasons, explanations or facts upon which she relied to make
this determination. If she is to disagree with the prevailing jurisprudence,
she should at least offer a more substantial analysis in order to justify her
finding of fact. The decision is completely devoid of any reasonable
explanation to make a finding that this applicant should not have his absences
count as residency and therefore comply with the statutory requirement.
Also see Canada (MCI) v. Zhou, 2008
FC 939 for a recent and thorough analysis of the law on this point.
[8]
The above reasoning applies equally to the circumstances of this
case. Here I cannot tell which test for residency was applied but, suffice it
to say, the test is not defined by the language employed by the Citizenship
Court. If the Citizenship Court was attempting to apply the centralized mode
of living test, it should have said so. Indeed, the Citizenship Court should,
in its reasons, cite the specific authority that it is applying to avoid any
confusion or doubt about how it is assessing the residency requirement. If it
is applying a test other than the strict numerical standard, it also has an
obligation to identify the material evidence before it and, where residency is
not established, to explain why that evidence was insufficient.
[9]
Ms. Mueller placed a significant amount of evidence before the Citizenship
Court in her attempt to prove her constructive residency in Canada. She was
entitled to know why that evidence was found lacking. While there was a
considerable shortfall in days present in Canada, her attachments to Canada
since the age of nine are also considerable. Certainly with her history of
Canadian residency, the Citizenship Court could not have had any reservations
about her understanding of Canada and Canadian traditions and values.
[10]
For the above reasons, I allow this appeal and direct that this
matter be re-determined by a different Judge of the Citizenship Court.
JUDGMENT
THIS COURT
ADJUDGES that this appeal is allowed
and that this matter is to be re‑determined by a different judge of the Citizenship
Court.
“ R. L. Barnes ”
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