Date: 20080926
Docket: T-421-08
Citation: 2008 FC 1081
Ottawa, Ontario, September 26,
2008
PRESENT:
The Honourable Mr. Justice Martineau
BETWEEN:
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
AUGUSTIN NTILIVAMUNDA
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an appeal brought by the Minister of Citizenship and
Immigration (the Minister) pursuant to subsection 14(5) of the Citizenship
Act, R.S.C. 1985, c. C-29 (the Act), in regard to a decision of Alain
Gariépy, a citizenship judge (the citizenship judge), dated
January 17, 2008, allowing the citizenship application filed by the
respondent.
[2]
On
July 4, 2001, the respondent, Augustin Ntilivamunda, arrived in Canada from Djibouti with his
family as a refugee from Rwanda. On July 26,
2001,
twenty-two (22) days after his arrival, the respondent left Canada to resume
his work abroad as a physician for the World Health Organization (the WHO), a
position that he has held since August 21, 1991. On August 6,
2004,
the respondent filed an application for Canadian citizenship. To date, the
respondent still travels for the WHO, and is currently the coordinator for the
AIDS project in Swaziland. All of the members of the respondent’s
immediate family settled in Canada and have now lived here for six years. All
are Canadian citizens.
[3]
The
conditions regarding the period of residence are set out at paragraph 5(1)(c)
of the Act, which provides:
|
5.
(1) The Minister shall grant citizenship to any person who
…
(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
|
5.
(1) Le ministre attribue la citoyenneté à toute personne qui, à la fois: […]
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) 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; …
|
(ii) un jour pour chaque jour de
résidence au Canada après son admission à titre de résident permanent; […]
|
[4]
The
citizenship judge determined that the days that the respondent spent abroad
could be counted as days that he was physically present in Canada, and therefore
that he satisfied the requirements provided under paragraph 5(1)(c)
of the Act:
[translation]
…
Based on the information provided by the applicant
at the hearing as well as the analysis of the documentary evidence in the
record, pursuant to the rule of the balance of probabilities, I find that the
applicant centralized his mode of existence in Canada beginning in July 2001
and that he then maintained very close ties with his adopted country when he
was forced to stay abroad. The 961 days of work that he performed in Africa in
the course of temporary postings by the World Health Organization during trips
after July 2001 are therefore accepted as days of residence in Canada.
The applicant therefore meets the
residence requirements stipulated under paragraph 5(1)(c) of the
Act.
[5]
The
appropriate standard of review for the citizenship judge’s decision on the
issue of whether or not a permanent resident satisfies the residence
obligation, which is a question of mixed fact and law, is that of
reasonableness (Pourzand v. Canada (Minister of Citizenship and Immigration),
[2008] F.C.J. No. 485 (QL) paragraph 19, 2008 FC 395).
[6]
The
term “residence” is not expressly defined at subsection 2(1) of the Act. Therefore,
the judges of our Court have expressed different opinions regarding whether or
not it is necessary to maintain a physical presence in Canada during the
relevant four-year period. The decision in Zhao v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1536, [2006] F.C.J. No. 1923
(QL), properly summarizes the state of the case law:
[50] There
are three general tests that have been developed by the Federal Court, and a
citizenship judge may adopt and apply whichever one he or she chooses as long
as it is applied properly: So v. Canada (Minister of Citizenship and
Immigration), 2001 FCT 733 (CanLII), 2001 FCT 733 at
paragraph 29. 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), 60 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.
[51] Justice
Reed has outlined the third approach, which is really just an extension of
Justice Thurlow’s test. In Re: Koo, 1992 CanLII 2417 (F.C.), [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. . . .
[7]
In
this case, the citizenship judge chose to apply the requirements established in
Koo (Re) (F.C.T.D.), [1992] F.C.J. No. 1107 (QL) paragraph 10,
[1993] 1 F.C. 286 (Koo). In Koo, Madam Justice Reed
stated that the issue before the Court was whether Canada was the
country where an applicant had “centralized his mode of existence.” To do so,
the following factors must be weighed:
. . .
(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 dependants (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 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?
[8]
In
this case, the applicant argues that the citizenship judge erred in his analysis
on four of the six requirements established by Koo, namely the first, the
third, the fourth and the fifth criteria. The applicant argues that in doing so
it was unreasonable according to the evidence to find that the respondent had
centralized his mode of living in Canada since he did not fulfil
the majority of the factors set out in Koo.
[9]
In
response to the first requirement set out in Koo, the citizenship judge states
the following:
[translation]
. . .
He settled in Québec with his entire
family: his wife, his five children and his young sister who is in his care. During
his first stay in Québec, he spent 22 days here – from July 04 to July 26, 2006 [sic] – the period
during which he permanently settled himself and his family in Québec.
During this period he, with his wife, did
the following:
-
took out
private insurance for himself and his family pending receipt of health
insurance coverage from the Government of Quebec;
-
took steps
to obtain health insurance for the entire family;
-
took steps
to obtain his social insurance number;
-
registered
all of the children in educational institutions (universities and secondary
school);
-
purchased
a home to house the family;
-
purchased
furniture and all the material necessary for the household;
-
took steps
in Hull to obtain the “travel
document” which would enable him to return to work for the WHO. …
Given the information provided at the
hearing and the abundance of documentary evidence filed at my request, I find
that the applicant centralized his existence and the existence of his
dependants in Canada when he arrived here on July
4, 2001, even if this first stay was only for 22 days. None of these dependants
(7) left Canada afterwards and indeed they
have already obtained Canadian citizenship without difficulty. The applicant had
been obliged to leave Canada to resume his posting (Djibouti) since he had exhausted his
leave.
[10]
In
response to the third requirement set out in Koo, supra,
regarding the state of the respondent’s physical presence in Canada, namely
whether it indicated that the respondent was returning home to his country or merely
visiting, the citizenship judge states:
[translation]
Since his arrival in Canada, the applicant has systematically
spent all of his vacations here. He did not travel abroad except for the trips
for his employer, the World Health Organization.
As he could not be here as he wanted to
be, he contacted his family every day by e-mail and every week by telephone.
The applicant has 36 days of annual
leave, all of which he spends with his family in Canada. Therefore, in 2007, he came three
times: in February, in May and in November.
[11]
With
regard to the fourth requirement set out in Koo, namely regarding the period
the respondent was absent from Canada, the citizenship judge states:
[translation]
During the period being considered, the applicant
had been absent from Canada for 961 of 1128 days, leaving 167 days of physical
presence in Canada, for six stays of 28 days on average during the three years
covering the period being examined.
[12]
In
regard to the fifth requirement set out in Koo, the citizenship judge determined
that the respondent’s physical absences were due to a patently temporary situation
since [translation] “World
Health Organization assignments are temporary indeterminate postings” and that [translation] “it was not the [respondent’s]
first choice to continuously work abroad.”
[13]
The
case law indicates that the establishment of residence in Canada is a
condition precedent to obtaining citizenship: Ahmed v. Canada (Minister of
Citizenship and Immigration), [2002] F.C.J. No. 1415 (QL),
2002 FCT 1067. Therefore, in what is now a well-established trend in the case
law, the Court decided that to fulfil the conditions required by the Act,
residence had first to be established and, second, be maintained. Where the requirement
of preliminary establishment in Canada is not established, the
absences from Canada are not
relevant and the assessment stops there. While the respondent shows the usual
passive signs of residing in Canada, the evidence in the record in regard to
determining whether he was established in Canada are not persuasive.
[14]
In
my opinion, the respondent’s twenty-two (22) day stay in Canada before leaving
again for abroad was clearly insufficient to amount to genuine establishment
within the meaning of the case law (Cheng v. Canada (Minister of Citizenship
and Immigration), [2000] F.C.J. No. 614 (QL); Canada (Minister
of Citizenship and Immigration) v. Vericherla, 2003 FCT 267, [2003] F.C.J. No. 360
(QL). Accordingly, it appears that the citizenship judge made an unreasonable
error in determining that the respondent had centralized his mode of existence
in Canada, given the minimal number of days the respondent spent in Canada (Abderrahim
v. Canada (Minister of Citizenship and Immigration), 2004 FC 1486,
[2002] F.C.J. No. 1867 (QL); Zeng v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1752, [2004] F.C.J. No. 2134
(QL); Shrestha v. Canada (Minister of Citizenship and Immigration),
2003 FCT 594, [2003] F.C.J. No. 778 (QL); Canada (Minister of
Citizenship and Immigration) v. Chen, 2004 FC 848, [2004] F.C.J. No. 1040
(QL) and Canada (Minister of Citizenship and Immigration) v. Zhou,
2008 FC 939, [2008] F.C.J. No. 1170 (QL)).
[15]
On
the other hand, given the very considerable number of days that the respondent
was absent, it cannot reasonably be argued that the respondent “centralized his
mode of living in Canada.” According to the evidence, it is clear that
the respondent does not “regularly, normally
or customarily” live in Canada.
[16]
The
respondent’s counsel assigns great importance to the fact that the respondent’s
wife and children all live in Canada. It is reasonably one of the reasons why
the family members, who were not born in Canada, were
awarded Canadian citizenship. Yet, the fact that the respondent’s family
members were established in Canada, that they had obtained citizenship and had
not left Canada after their arrival is not determinative in this case. Bear in
mind that it is important to distinguish the respondent’s personal situation from
that of his family (Paez v. Canada (Minister of Citizenship and Immigration),
[2008] F.C.J. No. 292 (QL) paragraph 15, 2008 FC 204; Eltom
v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1979
(QL) paragraph 22, 2005 FC 1555; Faria v. Canada (Minister of
Citizenship and Immigration), [2004] F.C.J. No. 1849 (QL) paragraph 12,
2004 FC 1385; Canada (Minister of Citizenship and Immigration) v. Chang,
[2003] F.C.J. No. 1871 (QL) paragraph 9, 2003 FC 1472).
[17]
On
the other hand, the respondent’s physical absences from Canada over the
period in question were not entirely due to a purely temporary situation. To
the contrary, according to the evidence in the record, it is clear that it is a
permanent situation. While the respondent’s future intentions are not relevant
in assessing the nature of the absences over the period in question (Khan v.
Canada (Minister of Citizenship and Immigration), 2006 FC 47, [2006] F.C.J. No. 73
(QL); Paez v. Canada (Minister of Citizenship and Immigration), [2008] F.C.J. No. 292
(QL), 2008 FC 204), the respondent indeed indicated that he intended
to retire from the WHO only in eight (8) years. At this rate, while he spent
all of his leave in Canada (36 days per annum, according to the record), the
respondent did not, even over eight years, accumulate the number of days
required to genuinely centralize his existence in Canada.
[18]
It
is deplorable that for one reason or another, the respondent cannot now work as
a physician in the province of Quebec. Unfortunately, the
respondent does not satisfy the residence requirement of the Act and his
application for citizenship is clearly premature. In this case, the respondent is
currently at an impasse similar to a number of permanent residents who want to
obtain Canadian citizenship, but whose professional or other obligations abroad
are an obstacle for establishing residence within the meaning of the Act.
[19]
For
the reasons stated, the appeal must be allowed and the decision of the
citizenship judge dated January 17, 2008, must be set aside.
ORDER
THE COURT ORDERS that the appeal be allowed and sets
aside the decision of the citizenship judge dated January 17, 2008.
“Luc Martineau”
Certified
true translation
Kelley
Harvey, BA, BCL, LLB
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