Date:
20130613
Docket:
T-1763-12
Citation:
2013 FC 647
Halifax, Nova Scotia,
June 13, 2013
PRESENT: The
Honourable Mr. Justice Harrington
BETWEEN:
|
|
MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Applicant
|
|
and
|
|
|
OSAMA ABUSHENAF
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
ORDER AND ORDER
[1]
The
Citizenship Judge recommended to the Minister that Mr. Abushenaf be granted
citizenship, notwithstanding that he was not physically present in Canada for
at least 1,095 days (three years) of the four years immediately preceding his
application. She applied one of the three tests this Court has given to the
meaning of “residence” within the context of s. 5(1)(c) of the Citizenship
Act; Koo (Re), [1993] 1 FC 286 (TD), which defines residence as the
place where one “regularly, normally or customarily lives” or has “centralized
his or her mode of existence.”
[2]
The
Minister appeals that decision, not on the grounds that it was unreasonable for
the Citizenship Judge to apply Koo (Re), but rather on the grounds that
Mr. Abushenaf had originally misrepresented his residency situation which
required the Citizenship Judge to make a credibility finding. The Minister
submits that she did not, so that, therefore, the decision should be set aside.
[3]
In
his residence calculation submitted in June 2010, Mr. Abushenaf stated his date
of arrival in Canada as being 13 January 2000, his date of permanent residence
15 June 2008 and his application for citizenship date as being 20 June 2010. He
stated the number of days in issue was 1,103, and that he was physically
present for all those days. The form specifically warns that if an applicant
submits misleading or fraudulent information, he may be charged with a criminal
offence and his citizenship application may be refused.
[4]
The
form also required him to list his work and education history in the past four
years. He stated that from May 2007 through to March 2009 he worked for
Schlumberger Oil Fields Services of Dartmouth. There is a handwritten notation
that he was working shifts on a rig. It is not clear who made the handwritten
notation.
[5]
In
any event, his application was vetted by a Citizenship official prior to
submission to the Citizenship Judge. The Citizenship official reported that in
her interview with Mr. Abushenaf it became clear that he had been absent from Canada for some of the relevant period. He “had not declared these absences as they were
employment related and he did not know that this was required.” He was asked to
redo a residence calculation. It turns out that he was absent 585 days, which
left him short of 1,095 days of actual physical presence. Apart from a vacation
which he had omitted, the absences are accounted for by his work. He basically
worked two weeks or more on oil rigs outside Canada and then returned to his
wife and children in Nova Scotia, where his life was clearly centralized.
[6]
Mr.
Abushenaf produced a letter from Canada Revenue Agency, International Tax
Service Office, dated 18 August 2009. The letter indicates that they were
writing to him with respect to his request for a determination of residency
status. It states:
In our opinion, you have maintained significant
residential ties with Canada. As a result, we consider you to be a factual
resident while you are living outside Canada. The term “factual resident” means
that even if you leave Canada, you are still considered a resident of Canada for income tax purposes.
[7]
Note
the term “factual resident” rather than “deemed resident”.
[8]
All
of this was sent to the Citizenship Judge who met with Mr. Abushenaf and his
wife. His position, which has not been contested, is that he had explained his
work on offshore oil rigs as a drilling engineer, and that he was mislead by
the advice given by Canada Revenue Agency, which was why he had not listed his
absences from Canada for work purposes as absences. The Citizenship Judge had
also noted that he had arrived in Canada in 2000.
[9]
In
her notes accompanying her recommendation, the Citizenship Judge remarked that
he had originally declared that he had not been absent from Canada at all, and
that he worked on rotation on oil rigs.
[10]
She
did not specifically refer to the letter from the Canada Revenue Agency, which
was in the file, but, apart from interviewing his wife, also verified his
employment.
[11]
The
Minister’s complaint is that there was no specific finding that Mr. Abushenaf
was credible. However, it is implicit in the Citizenship Judge’s reasoning, and
indeed, in the circumstances, she could not have done an in Koo (Re) analysis
at all had she not believed Mr. Abushenaf.
[12]
Misrepresentations
may be innocent, negligent or fraudulent. This error on the part of
Mr. Abushenaf is easily explained, and indeed he did explain it to both
the Citizenship Officer and to the Citizenship Judge.
[13]
If
the reasons are not as fulsome as the Minister would like, in the sense there
was not a specific statement along the lines that “I accept Mr. Abushenaf’s
explanation and find that he was not in any way intending to misrepresent his
situation”, one can have recourse to Newfoundland and Labrador Nurses’ Union
v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR
708. The record confirms that the Citizenship Judge’s conclusion was
reasonable.
ORDER
FOR
REASONS GIVEN;
THIS
COURT ORDERS that:
1. The appeal
from the decision of the Citizenship Judge, dated 25 July 2012, approving the
application for citizenship of Osama Abushenaf, is dismissed.
2. There
shall be no order as to costs.
“Sean Harrington”
Email this Content