Date: 20130703
Docket: T-1772-12
Citation:
2013 FC 739
Ottawa, Ontario,
July 3, 2013
PRESENT: The
Honourable Mr. Justice Mosley
BETWEEN:
|
|
YVONNE EDIRI IDAHOSA
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an appeal pursuant to subsection 14(5) of the Citizenship Act, RSC
1985, c C-29, of a decision refusing an application for Canadian citizenship.
The applicant, Ms. Idahosa, ably represented herself at the hearing of the
appeal. The name of the respondent, initially identified as the Attorney
General of Canada in the style of cause, was corrected at the hearing to read
as the Minister of Citizenship and Immigration.
BACKGROUND:
[2]
Ms.
Idahosa is a Nigerian citizen. She moved to the United States in the mid-1990s.
On November 11, 1999, she had a son, born in California. She married an
American citizen on January 27, 2002. Three months later, on April 25,
2002, Ms. Idahosa, then aged 29, came to Canada as a permanent resident, a
skilled worker in the Computer Programmer occupation. Two days after securing
permanent residence, she returned to the U.S. In November 2002 she set up a
Canadian company but due to medical problems, never used it as a viable business.
She had a daughter in the U.S. in 2005.
[3]
In
early 2005, the house in the U.S. was sold and Ms. Idahosa shipped furniture to
Canada. She filed for divorce in September 2005. In 2006, she bought a house
in Port Moody. Her children have been attending schools in Coquitlam since the
autumn of 2005 for the boy and the autumn of 2008 for the girl. The ex-husband
is not the father of either child. Their father apparently lives with the
family in British Columbia.
[4]
On
August 21, 2006, Ms. Idahosa applied for Canadian citizenship but the
citizenship judge, following the Re Pourghasemi
(1993), 19 Imm LR (2d) 259, [1993] FCJ No 232 (QL) (TD), line of cases (strict count of days), decided that she had not
spent the
required 1,095 days in Canada and denied the application.
[5]
On
June 30, 2009, Ms. Idahosa applied for Canadian citizenship again, basing her
application on residence in Canada between June 2005 and June 2009. On August
2, 2012, citizenship judge Anne-Marie Kains, applying the Re Koo, [1992] 59 FTR 27, [1992] FCJ No 1107 (QL) (TD) [Re Koo]
line of authority (“regularly, normally, or customarily lives”), also denied
the application.
IMPUGNED
DECISION:
[6]
The
citizenship judge reviewed all of the evidence and noted that Ms. Idahosa
claimed to have accumulated 1,361 days of residence during the relevant
material period, June 30, 2005 to June 30, 2009. However, she found that Ms.
Idahosa’s evidence was problematic for a number of reasons; she had difficulty
remembering facts and there were contradictions, and omissions. There were no
stamps in her passport for claimed travel to and from Canada and elsewhere. The citizenship judge therefore adopted the Re
Koo analytical approach, which did not require physical presence in Canada for the whole 1,095 days.
[7]
In
considering the six questions required by the Re Koo analysis, the
citizenship judge found that Ms. Idahosa had not been physically present in
Canada for a long time prior to recent absences which occurred immediately
before the application for citizenship; that her immediate family (other than
her children) lived in California and Nigeria; that her failure to provide
requested U.S. travel records prevented determining whether her pattern of
physical presence in Canada indicated returning home or merely visiting the
country; that due to problems with the evidence it was impossible to determine
the extent of her absences from the country; that the reasons for Ms. Idahosa’s
travel could not be determined as she had not been forthcoming; and that the
quality of her connection with Canada did not reflect more substantial ties
that those existing with any other country.
ISSUE:
[8]
The
issue is whether the
citizenship judge erred when she determined that Ms. Idahosa did not meet the
residency requirement under the Citizenship Act.
STANDARD
OF REVIEW:
[9]
The
standard of review has been satisfactorily determined by the jurisprudence to
be reasonableness (Imran v Canada (MCI), 2012 FC 756 at paras 18-29).
APPLICABLE LEGISLATION:
[10]
The
relevant provisions of the Citizenship Act are as follows:
|
Citizenship Act
R.S.C., 1985, c. C-29
|
Loi sur la citoyenneté
L.R.C. (1985), ch. C-29
|
|
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.
|
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.
|
|
2. (1) In
this Act,
.
. .
“Court”
« Cour »
“Court” means the Federal Court;
|
2. (1) Les définitions qui suivent
s’appliquent à la présente loi.
. . .
« Cour »
“Court”
« Cour » La Cour fédérale.
|
|
14. (5) The Minister or the applicant may
appeal to the Court from the decision of the citizenship judge under
subsection (2) by filing a notice of appeal in the Registry of the Court
within sixty days after the day on which
(a) the
citizenship judge approved the application under subsection (2); or
(b) notice was
mailed or otherwise given under subsection (3) with respect to the
application.
|
14. (5) Le
ministre et le demandeur peuvent interjeter appel de la décision du juge de
la citoyenneté en déposant un avis d’appel au greffe de la Cour dans les
soixante jours suivant la date, selon le cas :
a) de l’approbation de la demande;
b) de la communication, par courrier ou tout autre moyen, de la
décision de rejet.
|
ARGUMENTS:
[11]
Ms.
Idahosa argued that she met all of the conditions in s 5(1) of the Citizenship
Act.
She submitted that only the material period of 4 years can be counted for
determining residence in Canada, that the material period was June 30, 2005 to
June 29, 2009, and that she spent 1,361 days in Canada between those dates. She
says that this can be verified from her Nigerian passport and other
documentation beyond a reasonable doubt.
[12]
In
her oral submissions, supplemented by written talking points which were
received by the Court at the hearing, Ms. Idahosa contended that the
citizenship judge misinterpreted her evidence and erred in calculating periods
when she was alleged to be absent from Canada travelling on other documents,
either a US passport resulting from her marriage to the US citizen or a
Nigerian passport other than the one presented on her application.
[13]
The
respondent submits
that the
citizenship judge was entitled to choose the Re Koo test of centralized
mode of existence. The six factors considered are not exhaustive and it is the
role of the citizenship judge to weigh them. In the present case, the
citizenship judge thoroughly reviewed the evidence and properly considered all
six factors. Ms. Idahosa had the burden of providing sufficient evidence to
establish her substantial connection to Canada and did not discharge it. Moreover, the
citizenship judge questioned Ms. Idahosa’s credibility. This Court has stated
that a credibility finding may have an impact on all relevant evidence. In this
case, it affected the weight given to the evidence and raised concern about
possible additional undisclosed absences. It was evident in the reasons that
the citizenship judge was alert to the relevant period and examined previous
travel for the purposes of establishing the credibility of the claimed absences
and clarifying the evidence concerning the use of only the Nigerian passport to
travel.
ANALYSIS:
[14]
As
noted by the respondent, “residence” is not defined in the Act, nor is a test
for assessing it prescribed. In addition, a citizenship judge does not have to
justify her choice of test. As Justice Harrington stated in Imran, above,
at paras 30-32, as long as a citizenship judge applies the chosen test
consistently, the Court should not overturn the decision on the basis of choice
of test:
30 To bring this matter to an end,
notwithstanding his decision in Martinez-Caro, Mr. Justice Rennie had
earlier held in Murphy v Canada (Minister of Citizenship and Immigration),
2011 FC 482, [2011] FCJ No 596 (QL),
at paragraph 8:
Simply put, it is not an error for a Citizenship judge to assess
residency by applying only the physical presence test. The jurisprudence as it
currently stands provides Citizenship judges with the discretion to choose any
of the three tests. Clearly, some Federal Court judges prefer one test to
another, but Citizenship judges retain the ability to choose and apply any of
the three tests.
He remained of that view in Martinez-Caro as he said that
"Chief Justice Lutfy's caution about the deleterious impact of conflicting
interpretations on the administration of justice remains valid and accurate to
this day" (para. 21) and went on to say at paragraph 26:
I conclude therefore, that the Citizenship Judge adopted and
correctly applied a legally accepted test to the facts as found. Consistent
with Lam this is sufficient to dispose of this appeal. It is however,
also my view that the test of physical presence is the correct interpretation
of the residency provision, and that decisions by Citizenship Court judges on
this issue should be reviewed on the standard of correctness.
31 In Canada (Minister of Citizenship and
Immigration) v Saad, 2011 FC 1508, [2011] FCJ No 1801 (QL),
Madam Justice Bédard stated at paragraph 14:
[...] Even though I consider it unfortunate that the fate of some
applications for citizenship may depend, in part, upon the identity of the
citizenship judge who processes the application and the interpretation of the
concept of residence that that judge endorses, I believe that the three interpretations
that have been traditionally accepted as reasonable are still reasonable and
will continue to be so in the absence of legislative action...
32 Although judicial comity, which encourages
predictability, has certainly taken a beating in citizenship matters, I think
it preferable to continue to follow Lam, as did Justices Rennie and
Bédard, and many others, including myself, notwithstanding different opinions
as to how the residency requirement should be interpreted. It is bad enough
that there is a high level of uncertainty at the citizenship judge level,
without adding further uncertainty at the Federal Court level. If I, as a
follower of Koo, were to grant this appeal and send it back with
directions, the next judge, a follower of Pourghasemi, might set aside a
decision based on Koo and send it back with different directions. As
this Court has said time and time again, the answer lies with Parliament.
[15]
In
the present case, having chosen the Re Koo test, the citizenship judge
considered the totality of the evidence and the six
specific questions which assist a decision-maker in coming to a conclusion.
[16]
Justice Francis Muldoon's comments in Re Hui (1994), 75
F.T.R. 81, [1994] F.C.J. No. 238 (QL) (F.C.T.D.) are instructive. He stated,
among other things, at paragraph 15, that the Parliamentary intent of
conferring citizenship upon applicants who have “Canadianized” themselves by
residing among Canadians in Canada cannot be accomplished by “…by depositing
bank-accounts, rental payment, furniture, clothing goods, and more importantly,
spouses and children - in a word, all except oneself - in Canada, while
remaining personally outside Canada.”
[17]
Ms. Idahosa argued that her home ownership in British Columbia,
her children’s school reports, her provincial drivers’ license and care card,
and her bank statements, tax documents, and permanent resident card indicated
ties to Canada. She did not rely upon the presence of the children’s father in Canada, stressing her independence from him.
[18]
The citizenship judge accepted that Ms. Idahosa had bought a house
in Port Moody in 2006 but found that few, if any, other factors pointed to ties
with Canada. She provided no evidence of employment, volunteer work, or
community involvement which supported an everyday presence in Canada during the relevant period. On the other hand, a number of factors pointed to substantial
ties with the U.S.; the birth of both of her children, correspondence graduate
degrees from two U.S. universities, continuing reliance on US medical services
and a California divorce.
[19]
Notwithstanding the steps taken to establish a presence in this
country, the citizenship judge did not believe that Ms. Idahosa had centralized
her existence in Canada. Particularly telling was her decision not to provide
the relevant US travel records as this made the calculation of her absences
inconclusive. She was also unable to explain how she was able to travel to and
from the US without a travel document that would allow entry in the absence of
a legal status in that country.
[20]
In
a very thorough decision, the citizenship judge clearly explained which test
was chosen and how she had applied it. Her factual findings, having reviewed
the six factors of the chosen test and the evidence with which she was provided
as the basis for an assessment, were reasonable. Although I might have come to
different conclusions on some points, the overall decision displayed
justification, transparency, and intelligibility and fell within the range of
possible, acceptable outcomes defensible in respect of the facts and law (Dunsmuir
v New Brunswick, 2008 SCC 9, at para 47). There are no grounds for this
Court to intervene.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application is denied.
“Richard G. Mosley”
Email this Content