Date:
20130605
Dockets: T-1327-12
T-1328-12
Citation: 2013
FC 603
Ottawa, Ontario, this 5th day
of June 2013
Present: The Honourable Mr.
Justice Roy
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
FOLUKE OLAFIMIHAN AND
AKINWANDE OLAOYE OLAFIMIHAN
Respondents
REASONS
FOR JUDGMENT AND JUDGMENT
[1]
Seldom
do we have the Crown seek a remedy in matters of citizenship and immigration.
Such is the case here.
[2]
By
Order dated September 7, 2012, Madam Prothonotary Mireille Tabib ordered that
the applications concerning Foluke Olafimihan (Court File T-1327-12) and
Akinwande Olaoye Olafimihan (Court File T-1328-12) be consolidated and
determined on the same record. Accordingly these Reasons will apply equally to
both. Mrs. Olafimihan and her spouse, Mr. Olaoye Olafimihan will be
referred to as “the respondents”.
[3]
On
July 4, 2012, the Minister of Citizenship and Immigration (the “applicant”)
filed the present appeal, under subsection 14(5) of the Citizenship Act,
RSC 1985, c C-29 (the “Act”), from the decisions of Judge Brian Coburn, the
Citizenship Judge. He approved the application of Mr. Olaoye Olafimihan on
April 30, 2012 and the application of Mrs. Olafimihan on May 8, 2012 for a
grant of Canadian citizenship under subsection 5(1) of the Act.
Facts
[4]
The
respondents are a husband and wife. They are Nigerian citizens who obtained
permanent resident status in Canada in 2002.
[5]
Their
applications for Canadian citizenship were rejected in 2006. It appears that
their earlier applications did not meet the residency requirements.
[6]
The
respondents applied a second time for Canadian citizenship on December 9, 2010.
It is this second attempt that gives rise to the current proceedings.
[7]
Although
not essential to the disposition of this case, it should be noted for the sake
of completeness that the respondents have been married since 1981 and that they
are the parents of three adult children who are all Canadian citizens. The
respondents are both trained as architects; however, it has not been easy for
them to find employment in that field since their arrival in Canada. It would appear that their lack of experience in Canada as architects has been a
significant barrier to obtaining work in this country.
[8]
In
view of those difficulties encountered when they arrived in Canada, the respondents established a company, Canadian Studies Limited, which arranges for
international students to attend school in Canada. The success of the business
venture seems to have been a significant consideration in the decision made by
the Citizenship Judge.
[9]
It
is not disputed that the respondents have filed their personal taxes in this
country since their arrival in 2002 and that they declare the province of Ontario as being where they reside. They have a number of assets in this country.
When they travel abroad for their business purposes, it appears that the
respondents use hotel accommodations, although at times it is for extended
periods of time. They have an office for their company in Nigeria, but it appears that they also travel to other African countries on occasion.
The Issue
[10]
The
case turns on the application of paragraph 5(1)(c) of the Act. It reads:
|
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
(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 :
…
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;
|
[11]
The
question for the Citizenship Judge was to determine whether or not the
respondents met the residency requirements for the purpose of acquiring the
Canadian citizenship. In so doing, the Citizenship Judge sought to apply the
criteria developed in the decision of this Court in Re Koo, [1993] 1 FC
286, [Koo] a decision rendered by Justice Barbara Reed. The applicant
disputes the application made by the Citizenship Judge of the Koo criteria.
The Crown does not seek to reverse the decision on the basis that the
respondents did not meet the basic requirement of, within the four years
immediately preceding their application of December 9, 2010 “accumulated
at least three years of residence in Canada …”. Rather, the applicant
challenges the findings made by the Citizenship Judge on the basis of Koo.
The Framework
for the Analysis
[12]
In
Martinez-Caro v The Minister of Citizenship and Immigration, 2011 FC
640, Justice Donald J. Rennie of this Court examined carefully the so-called
three lines of reasoning (some would contend that there are only two, with the
third one being a variation on one of the two) concerning the residency
requirements of paragraph 5(1)(c) of the Act. Like him, I am not
convinced that the test devised in Koo is one that is justified by an
appropriate reading of section 5 of the Act. I reckon that Justice Allan
Lutfy, in Lam v The Minister of Citizenship and Immigration
(March 26, 1999), T-1310-98, opened the door to Citizenship judges
adopting either one of the tests devised by different judges of this Court. It
is on that basis that the Citizenship Judge, in this case, chose the Koo
test.
[13]
Given
that the Crown has chosen to challenge the Citizenship Judge’s decision on the
basis of the Koo test (also referred to as the qualitative test), it
would not be appropriate to seek to examine the matter on the basis of the more
quantitative test, one that would require physical presence in this country for
the three out of four years referred to in paragraph 5(1)(c) of the Act.
However, I would have thought that the more a Citizenship Judge is departing
from the standard of a 1,095 days out of 1,460 days, the more it would be expected
that the departure from the norm would be justified in order to meet even the
qualitative test. The connections with the country are essential to become a
citizen, and satisfying the criteria would tend to show that connection, that Canada is effectively home. I share the view of Justice James O’Reilly who held, at
paragraph 21 of his decision in Minister of Citizenship and Immigration v
Nandre, 2003 FCT 650:
I find that the
qualitative test set out in Papadogiorgakis and elaborated upon in Koo
should be applied where an applicant has not met the physical test. I should
add that I do not regard the qualitative test as one that is easy to meet. A
person’s connection to Canada would have to be quite strong in order for his or
her absences to be considered periods of continuous residency in Canada.
[14]
In
this case, the calculations made about the number of days spent outside of Canada within the preceding four years of the application for citizenship show a
significant shortfall. In the case of Mrs. Olafimihan, the Citizenship
Judge found absences totalling 838 days out of 1,460 (about 57.4% of the time).
Given that presence for 1,095 days would be required, that leaves
Mrs. Olafimihan with merely 622 days of physical presence (56.8% of
the norm), which results in a shortfall of 473 days. As for Mr. Olaoye
Olafimihan, the numbers are very much similar. The Citizenship Judge found his
absences to be for a total of 809 days (absent 55.4% of the time), which
left a residency in Canada of 651 days. The shortfall out of the requirement of
1,095 days would be 444 days. The Minister had a slightly different
calculation, suggesting that his absences were in the order of 827 days,
instead of 809 which would have left a shortfall of 462 days. Either way, the
respondents were physically present in Canada for less than fifty percent of
the time over a period of four years. Interestingly, the numbers show that Mrs.
Olafimihan spent more days abroad on a smaller number of absences (19) than her
husband (24).
[15]
Clearly
the respondents fall well short of what some consider to be the minimal
requirement under paragraph 5(1)(c). As Justice Muldoon said
emphatically in Re Pourghasemi, [1993] FCJ No 232 (QL):
So those who would throw in their lot with Canadians
by becoming citizens must first throw in their lot with Canadians by residing
among Canadians, in Canada, during three of the preceding four years, in order
to Canadianize themselves. It is not something one can do while abroad, for
Canadian life and society exist only in Canada and nowhere else.
[16]
Actually,
the test devised in Koo, which this Citizenship Judge has chosen to
follow, appears to be an attempt to find criteria, the purpose of which would
be to see if there is that strong connection with Canada through continuous
residency in Canada short of having spent 1,095 days in the four years
preceding their application.
The Test
[17]
The
issue before this Court is whether or not the Citizenship Judge’s decisions are
reasonable in the circumstances. This Court’s case-law has been consistent that
this is the applicable standard of review in appeals pursuant to subsection
14(5) of the Act. The issue was recently canvassed in Korolove v The
Minister of Citizenship and Immigration, 2013 FC 370:
[12] In this instance,
the jurisprudence has established that a Citizenship Judge’s determination of
whether a citizenship applicant meets the residency requirements is a question
of mixed fact and law reviewable on the reasonableness standard. …
Application of the Koo
criteria
[18]
Justice
Reed, in Koo, rejected the view expressed by some that for an applicant
“who would very obviously make an excellent citizen the provisions of the Act
should be given a liberal interpretation so as to make the granting of
citizenship to him possible” (see page 293). She rejected such view in strong
terms:
I have difficulty with
that admonition. If it means that the requirements of the Act are to be
interpreted differently for a person about whom the judge has formed a good
opinion (as a potential citizen) from that which applies to a person about whom
the judge has not formed this opinion, then, I find I have to reject the rule
of interpretation. The same criteria are required to be met by all applicants
regardless of the judge’s opinion on the individual’s qualities as a potential
citizen. The law should be applied equally to all.
[19]
It
appears to me that this is the conclusion that was reached implicitly by the
Citizenship Judge in this case. He finds that the business success the
respondents have worked hard to achieve makes them deserving of the Canadian
citizenship. However, such is not the test. I will examine more carefully his
application of the six Koo criteria in order to explain the conclusion I
have reached.
[20]
Turning
now to the decision under review, the Citizenship Judge sought to apply the six
questions of Koo in order to answer the test, which is:
Whether it can be said that Canada is the place where the applicant “regularly, normally or customarily lives”. Another
formulation of the same test is whether Canada is the country in which he or
she has centralized his or her mode of existence. (at page 293)
[21]
The
six questions are:
(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?
[22]
While
acknowledging that the Koo factors are neither exhaustive nor mandatory,
the applicant takes issue with three of the six factors applied by the
Citizenship Judge. The applicant contends that the cumulative effect of those
mistakes, together with the evident answer to question 4, makes the decision unreasonable.
I agree. They show that there was no continuous residency in Canada, which is at the heart of the Koo test.
[23]
Considering
the analysis done with respect to questions 1, 3 and 5, one is struck by the
importance put by the Citizenship Judge on the reasons for those absences, as
if that could constitute an adequate justification or proxy for actually continuous
residency and living in Canada before one can apply to become a citizen of this
country.
[24]
Question
one suggests that being present in Canada for a long period prior to recent
absences is an indicia that someone has taken in elements of Canadian culture
and has strong connections with the country. The person “regularly, normally or
customarily lives” in Canada. The Citizenship Judge answers the question by
emphasizing that business reasons had taken the respondents out of the country.
He concludes his answer to the question by saying that “(A)s a result of their
work related absences, the applicant is short in the order of 473 days of the
1095 days required under the Act”. This cannot mask the evidence before him that
the respondents were never even close to satisfying the first factor. As the
evidence showed, there was not a long presence in Canada followed by recent
absences. Ever since the respondents established their business venture, they
have been frequently out of the country. Indeed, the numbers speak for
themselves.
[25]
The
third question is, arguably, at the heart of the Koo test. It boils down
to looking for evidence that Canada is home, as opposed to a place one visits.
The Citizenship Judge rightly pointed out that the respondents have established
their business in this country. Furthermore they pay income and property taxes
in this country and own assets. Indeed, their three children are Canadian
citizens and are established here. The difficulty remains that in the four
years preceding their application for citizenship, the respondents have spent
less than fifty percent of their time in Canada. Mrs. Olafimihan had 19
absences in the period under consideration. Mr. Olaoye Olafimihan had 24
such absences. Indeed, four and six of these absences respectively are said to
be family-related.
[26]
It
is difficult to escape the conclusion that one merely visits when not even
spending 50% of their time in that place. In the case of Mrs. Olafimihan,
57.4% of the four years, during 19 absences was spent abroad. As for
Mr. Olaoye Olafimihan, his absences were even more frequent. That they
would have considered Canada as a base of operation for their business
endeavours is arguable. It is less so as to whether Canada is their home, at
least sufficiently to claim for citizenship in this country. What makes this particularly
troublesome is the fact that the pattern of their return to Canada showed that they did not come back for an extended period of time. It is one thing
to be out of the country for a long period of time, such that an applicant
would end up having been out for more than a year out of four because of that
one long stay outside of the country. It is quite another to be literally in
and out of Canada without residing in this country for extended periods of time
to experience living in Canada. It is in that sense that it can be said that
one is merely visiting. Which takes me to an examination of the fifth factor.
[27]
The
fifth question seeks to elicit if the absences are a “clearly temporary
situation”. Presumably one ought not to be penalized for having been a student
abroad or accepting temporary employment during the four years preceding the
application. Conversely, someone who has not spent extensive periods of time in
Canada is less likely to have the Canadian experience that comes with rubbing
elbows with Canadians which presumably is why the legislation has a residency
requirement of 1,095 days over four years. The purpose of the residency
requirement cannot be ignored. The response given by the Citizenship Judge is
particularly puzzling. He concludes that the respondents are in a “perpetual
temporary situation”. Again, he tries to justify the state of affairs by the
business imperatives facing the respondents. It would appear that the Citizenship
Judge was of the view that the respondents’ absences are always temporary
because they always come back to Canada. As can be plainly seen, that does not
address the question. The respondents are well short of 1,095 days not because
they have been out of the country for a long but temporary period of time;
rather they have been out of the country for more than fifty percent of the
time because they have been in and out of the country, a situation that is not
about to change.
[28]
Finally,
the applicant does not take issue with question four, but that is because the
answer does not favour the respondents. This is not an insignificant factor as
I have pointed out earlier. It is in fact the recognition that someone who
falls short of the 1,095 days required under the legislation will have a
tougher time establishing sufficient residency to be granted citizenship in Canada. Establishing residency for the purpose of citizenship requires showing attachment
that comes with physical presence during the preceding four years. According to
Koo, it is not impossible to show that attachment if less than 1,095
days have been spent in the country, but that demonstration is made more
difficult as the number of days falls way short of the standard set in
legislation.
[29]
The
picture that emerges from the examination of the six factors in this case is
one where the Citizenship Judge substituted the requirements for physical
attachment, as per paragraph 5(1)(c) of the Act, for a justification of
absences on the basis of business needs. By not properly addressing criteria
devised in Koo, the Citizenship Judge creates in effect a different
test. No weight is given to criterion 4 and criteria 1, 3 and 5 are in effect
ignored. That is hardly satisfying the test. The decision under review reads as
if the respondents should be made citizens of Canada because they deserve to be,
given that they have built a successful business, which justifies absences
beyond the norm. As pointed out in Koo, such is not the purpose of the
Act. No doubt that the respondents are deserving individuals whose success
ought to be applauded and it is understandable that the Citizenship Judge would
have been sympathetic in the circumstances. However, such is not the issue.
Conclusion
[30]
With
great respect, the conclusions of the Citizenship Judge can only be seen as
failing the test of reasonableness. His reasons for judgment do not satisfy the
Koo test, the test which allows some flexibility from the so-called
quantitative test which requires physical presence in Canada for at least 1,095
days out of the preceding 1,460 days. When four of the six criteria do not
favour the respondents, and the respondents have spent less than fifty percent
of their time in Canada, the conclusion can hardly be any other than they have
failed the Koo test. That would appear to be the only rational outcome. At
the end of the day, departing as significantly only because of business
requirements does not meet the residency test devised in Koo, which is
itself a departure, or a measure of flexibility, from the apparent requirements
of the legislation. Indeed, Justice Reed acknowledged that reality in Koo
at page 292:
In some decisions it has
been suggested that the changes in the Citizenship Act which were made
in 1978 [S.C. 19776-77, c. 52, s. 128] lead to the conclusion that Parliament
intended that physical presence for the whole three-year period was not
required. This is said to be related to the removal from the Act of
qualifications based on domicile. I have read the Parliamentary debates and
committee proceedings of that period and can find nothing to substantiate that
conclusion. Indeed, quite the contrary seems to be the case. The requirement of
three-year residence within a four-year period seems to have been designed to
allow for one year’s physical absence during the four-year period. Certainly,
the debates of the period suggest that physical presence in Canada for 1,095 days was contemplated as a minimum. In any event, as has been noted above,
the jurisprudence which is now firmly entrenched does not require physical
presence for the whole 1,095 days.
[31]
As
a result, the appeal is granted and the decisions of the Citizenship Judge are
quashed. The matter will be referred back to a different Citizenship Judge for
re-determination.
JUDGMENT
The within appeal is
granted. The decisions of Citizenship Judge Brian Coburn, approving the
application for citizenship of Mr. Akinwande Olaoye Olafimihan on April
30, 2012 and of Mrs. Foluke Olafimihan on May 8, 2012 under paragraph
5(1)(c) of the Citizenship Act, RSC 1985, c C-29, are
quashed. The matter is hereby referred back to a different Citizenship Judge
for re-determination.
“Yvan Roy”
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