Docket: T-63-16
Citation:
2016 FC 974
Ottawa, Ontario, August 26, 2016
PRESENT: The
Honourable Mr. Justice Zinn
|
BETWEEN:
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Applicant
|
|
and
|
|
OLUPASEAYO ANUPO
RUNSEWE
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
The Minister appeals the decision of a
Citizenship Judge rendered on December 10, 2015, granting Mr. Runsewe Canadian
citizenship upon applying the residence test set out in Re Papadogiorgakis,
[1978] 2 FC 208, 88 DLR (3d) 243 (FCTD) [Papadogiorgakis]. For the
reasons that follow, this appeal is dismissed.
[2]
There is no dispute on the material facts. Mr.
Runsewe is a citizen of Nigeria. He made an application for Canadian
citizenship on February 22, 2012, and thus the relevant four-year period under
the Citizenship Act, RSC 1985, c C-29 is from February 22, 2008
to February 22, 2012.
[3]
He entered Canada with his family as a permanent
resident on July 8, 2007. Fifteen days later they returned to Nigeria. The
entire family returned to Canada on June 13, 2008. The information provided by
Canada Border Services Agency shows that Mr. Runsewe did enter Canada after
leaving in 2007 and prior to the relevant period; namely on November 28, 2007
and February 11, 2008.
[4]
In his application he declared 832 days of absence
from Canada. He declared 828 days of absence in his residency questionnaire. He
went to Holland for 3 days on a vacation without his family on his way back
from work. Except for a few days of vacation in the United States with his
family and Holland, all of his absences from Canada were occasions when he was
in Nigeria working on an off-shore oil rig.
[5]
The first submission of the Minister is that the
Citizenship Judge failed to reasonably determine the threshold question of
whether Mr. Runsewe had established residence in Canada at the beginning of the
four-year relevant period.
[6]
It is appropriately conceded that the Citizenship
Judge did find as a fact that Mr. Runsewe had established Canadian residence.
He writes: “It is clear that the applicant and his
family established their home in Ottawa in June 2008 and have maintained it in
all the days since, whether in an apartment in Ottawa or the family’s purchased
residence in Nepean, Ontario.” The Minister submits that even if it is
accepted that Mr. Runsewe established residence in June 2008, this is
unreasonable as it was some five months after the relevant commencement date of
the qualifying four-year period.
[7]
I am not persuaded that an applicant’s date of
establishing residence must coincide with the first day of the relevant
four-year period. The requirement in the Citizenship Act, as it read
then was merely that the applicant has three years of residence in the previous
four year period. Accordingly, it is sufficient if the applicant has
established residence at any time in the last three years of the qualifying
period. A similar conclusion was stated by Justice Phelan in Faria v Canada
(Minister of Citizenship and Immigration), 2004 FC 1385 at para 11, [2004]
FCJ No 1849 [Faria], relied on for other purposes by the Minister.
[8]
When a Citizenship Judge applies the Papadogiorgakis
test the judge is assessing whether having established the applicant’s
Canadian residence, the residence is continued notwithstanding the applicant’s additional
absences. The Papadogiorgakis test establishes a “constructive residence” in the circumstances, such
that the applicant maintains his residence notwithstanding absences.
[9]
The decision of the Citizenship Judge that Mr.
Runsewe and his family established residence in June 2008 is a reasonable
finding. The record shows that they all permanently moved from Nigeria to
Ottawa on that date, with the intention of taking up permanent residence here.
Mr. Runsewe first rented and then purchased a home for his family. His wife was
pregnant with twins when they arrived and they were born in Canada. His
expertise is in the oil industry, and he said that he attempted to find
employment in Canada, but was not able to do so. Because his wife was pregnant
and had given up her employment in Nigeria to come to Canada, he maintained his
employment there.
[10]
The Minister next submits that the Citizenship
Judge unreasonably determined that Mr. Runsewe maintained his residence in
Canada after June 2008, because he was absent for more than a year beyond the
one-year exemption provided for in the Citizenship Act. I find nothing
unreasonable in the judge’s determination.
[11]
It is clear from the record that Mr. Runsewe
leaves Canada only for work purposes. He travels to Nigeria and works as an
employee on an oil rig for approximately 28 days and then has approximately 28
days off. Each and every occasion when he is not working he returns to his
family in Canada. He has no assets in Nigeria; they are all in Canada. The
Minister notes that he pays taxes in Nigeria and pays little Canadian taxes,
suggesting that this shows his lack of residence in Canada. This is not
evidence of anything in my view. He is an employee in Nigeria and pays tax
there. His taxation falls under the Agreement Between the Government of
Canada and the Government of the Federal Republic of Nigeria For the Avoidance
of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes
on Income and on Capital Gains.
[12]
I prefer the view expressed by counsel for Mr.
Runsewe that he is not visiting Canada, he is returning home.
[13]
Lastly, the Minister submits that Mr. Runsewe has
only passive indicia of having maintained residence in Canada and is attempting
to “bootstrap” himself into residency using his
family’s circumstances. I do not share the view that he is bootstrapping himself
into residency as that term was used in Faria. As noted there at
paragraph 12, “Each individual is considered on his own
merits and on his own conduct.” I see nothing to suggest that the
Citizenship Judge did otherwise. He found on the evidence before him that “At no point since June 2008 has the Applicant ceased to
reside in Canada.” In my view, that was reasonably open to him to find
when one weighs the evidence of Mr. Runsewe’s ties in Nigeria, which were only
his work, and those in Canada.
[14]
Neither party sought costs and none are awarded.
Email this Content