Date: 20060118
Docket: T-1388-05
Citation: 2006 FC 47
Toronto, Ontario, January 18, 2006
PRESENT: THE HONOURABLE MR. JUSTICE MOSLEY
BETWEEN:
AMER NAWAZ KHAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an appeal pursuant to subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 (the Act) and section 21 of the Federal Courts Act, R.S.C. 1985, c. F-7, from the decision of a citizenship judge, dated June 6, 2005, wherein the citizenship judge denied the applicant's application for a grant of citizenship under section 14(1)(a) of the Act.
[2] Mr. Khan is a native of Pakistan and was landed in Canada on January 29, 2000. From September 2001 he has worked for a Vancouver based mining company as a warehouse manager at a site in the Republicof Guinea, West Africa. This has required him to be absent from Canada for long periods of time. The applicant first departed Canada on February 11, 2000, fourteen days after his arrival. During the relevant four-year period between April 30, 2000 and April 30, 2004, the applicant left twice to visit his family in Pakistan, and nine times to work in Guinea.
[3] The citizenship judge determined that the applicant did not meet the residence requirements of paragraph 5(1)(c) of the Act and that his connection to Canada was less than substantial. Mr. Khan seeks an Order for a Writ of Certiorari quashing that decision and an Order for a Writ of Mandamus directing that the respondent consider, process and grant him citizenship and pay the costs of this application.
RELEVANT LEGISLATION
[4] The relevant legislative provisions read as follows:
| 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;
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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;
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| 14. (1) An application for
(a) a grant of citizenship under subsection 5(1),
***
shall be considered by a citizenship judge who shall, within sixty days of the day the application was referred to the judge, determine whether or not the person who made the application meets the requirements of this Act and the regulations with respect to the application.
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14. (1) Dans les soixante jours de sa saisine, le juge de la citoyenneté statue sur la conformité -- avec les dispositions applicables en l'espèce de la présente loi et de ses règlements -- des demandes déposées en vue de :
a) l'attribution de la citoyenneté, au titre du paragraphe 5(1);
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ISSUE
[5] Did the citizenship judge commit a reviewable error in determining that the residence requirement under paragraph 5(1)(c) was not met by the applicant?
ARGUMENT & ANALYSIS
Standard of Review
[6] A consensus appears to have emerged from recent decisions of this Court that on a pragmatic and functional analysis the standard to be applied is one of reasonableness as the question of whether a person has met the residency requirement is one of mixed fact and law and citizenship judges are owed some deference by virtue of their special degree of knowledge and experience: Wang v. Canada (Minister of Citizenship and Immigration), 2005 FC 981, [2005] F.C.J. No. 1204 (QL); Morales v. Canada (Minister of Citizenship and Immigration), 2005 FC 778, [2005] F.C.J. No. 982 (QL); Rizvi v. Canada (Minister of Citizenship and Immigration), 2005 FC 1641, [2005] F.C.J. No. 2029 (QL); Huang v. Canada (Minister of Citizenship and Immigration), 2005 FC 861, 47 Imm. L.R. (3d) 259; Xu v. Canada(Minister of Citizenship and Immigration) 2005 FC 700, [2005] F.C.J. No. 868 (QL).
[7] Several tests for residency have been developed in the jurisprudence. Citizenship judges may properly apply any test, but may not blend different tests together: Hsu v. Canada (Minister of Citizenship and Immigration), 2001 FCT 579, 206 F.T.R. 10; Canada(Minister of Citizenship and Immigration) v. Wu, 2002 FCT 579, [2002] F.C.J. No. 765 (QL); Canada(Minister of Citizenship and Immigration) v. Mindich (1999), 170 F.T.R. 148, [1999] F.C.J. No. 978 (F.C.T.D.) (QL).
[8] The citizenship judge in this case opted for the "centralized mode of existence" test articulated by Madame Justice Reed in (Re) Koo, [1993] 1 F.C. 286, (1992) 59 F.T.R. 27 [Koo]. The issue in this appeal is whether the citizenship judge properly applied the test.
Did the citizenship judge err?
[9] Justice Reed proposed six questions that could be asked to assist in determining whether the applicant has made Canada the place where he "regularly, normally or customarily lives" and thus satisfies the centralized mode of existence test. These 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 dependents (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 employment abroad?
6. What is the quality of the connection with Canada: is it more substantial than that which exists with any other country?
[10] The applicant submits that relevant facts in the tribunal record were not considered in relation to the above test. While the Koo test emphasizes actual physical presence, it also recognizes that in appropriate circumstances, physical absence from Canada can still be considered residence for the purposes of the Act: Re Agha (1999), 166 F.T.R. 245, [1999] F.C.J. No. 577 (QL).
[11] According to Justice François J. Lemieux in Re Agha, above at para 45, the Koo test "compels the Citizenship Judge to carefully examine the nature, purpose, extent and all of the circumstances surrounding the physical absence from Canada in order to find out the true nature of the applicant's connection, commitment and ties with Canada."
[12] The applicant submits that in the citizenship judge's analysis there is no consideration that the applicant works for a Canadian company. Rather, he says, the judge improperly characterizes the applicant's employment as his "chosen business interests" implying that the applicant exercises control over his long absences, which he does not.
.
[13] The Canadian status of the company is relevant to the fifth Koo criterion, as the location of the company corroborates the applicant's assertion that he was dispatched temporarily to the Republic of Guinea and will return to Canada.
[14] The sixth question posed in Koo test is whether the applicant's connection to Canada is more substantial than to that of any other country. The applicant submits that the citizenship judge did not give sufficient weight to the evidence of his ties to Canada and the lack of such ties to another country. In addition to the usual indicia of residence such as a bank account, health card, driver's license, and payment of Canadian income tax, he now owns a house in Canada (since 2004 - prior to that he rented an apartment continuously).
[15] The respondent submits that the citizenship judge freely acknowledged all of these indicia and correctly applied the Koo factors. The appropriate criterion is not whether the applicant's connection with Canada is more substantial than with any other country, but whether his connection to Canada is substantial enough. It is irrelevant that he has no stronger connection with any other country. In Shrestha v. Canada(Minister of Citizenship and Immigration), 2003 FCT 594, 28 Imm. L.R. (3d) 112, the Court determined that having no significant ties with any other country is not the sole criterion for fulfilling the residency requirements of the Act.
[16] The following is a summary of the applicant's absences taken from page 1 of the citizenship judge's decision:
No. From (D/M/Y) To (D/M/Y) Destination Reason # of Days
1. 08/09/2001 07/12/2001 Guinea Work 90
2. 02/01/2002 03/04/2002 Guinea Work 91
3. 30/04/2002 27/07/2002 Guinea Work 88
4. 06/08/2002 20/08/2002 Pakistan Visit 15
5. 28/08/2002 14/10/2002 Guinea Work 47
6. 15/10/2002 01/11/2002 Pakistan Visit 17
7. 02/11/2002 25/12/2002 Guinea Work 53
8. 14/01/2003 27/03/2003 Guinea Work 72
9. 16/04/2003 03/08/2003 Guinea Work 109
10. 04/09/2003 15/12/2003 Guinea Work 102
11. 09/01/2004 19/04/2004 Guinea Work 101
[17] In her decision letter, the citizenship judge did not set out an analysis in response to each of the six Koo questions. However, I am satisfied from the reasons provided and from her notes to file that are on the certified record that the judge properly applied the test. She noted that the applicant had left Canada just fourteen days after being landed in January, 2000. The length of time he was in Canada, from April 2000 to September 2001, did not in her view demonstrate that the applicant had been in Canada for a lengthy period prior to the commencement of a series of temporary absences. She indicated in her reasons that the applicant's "physical presence is more consistent with visits to the country [Canada] rather than the place where you regularly, normally and customarily live" and concluded that he had not centralized his mode of living in Canada.
[18] By the citizenship judge's calculation, the applicant was short 419 days of the minimum requirement established under the Act, which is 1095 days. The judge was of the view that such a considerable absence was another indication that the applicant's life was not centralized in Canada.She concluded that the applicant's work history in Guinea was not consistent with temporary absences due to employment requirements but was more in the nature of a permanent situation.
[19] The judge took into consideration the fact that the applicant stated on his application form that he had no relatives in Canada, a factor relevant to the second Koo question. He has a brother and sister in Pakistan.
[20] The fact that the company the applicant worked for was based in Canada was also considered by the judge. In Liao v. Canada(Minister of Citizenship and Immigration), 2003 FC 1312, [2003] F.C.J. No. 1657 (QL), the applicant had also established a residence in Canada prior to departing for Canada-based foreign employment. Justice Paul Rouleau concluded that the fact the assignment was temporary had not been properly taken into consideration and the decision was set aside.
[21] Despite the applicant's assertion in this case that his assignment to Guinea is of a temporary nature, it was, in my view, reasonably open to the citizenship judge to conclude that it was a permanent assignment. There is nothing in the record to indicate that the company had held out an offer of employment in Canada with temporary assignments abroad or the promise of relocation back to Canada.
[22] The applicant has made a choice to work for a company that requires him to work outside Canada at their diamond mining operation in Guinea. As noted in (Re) Leung (1991), 42 F.T.R. 149 at 154, 13 Imm. L.R. (2d) 93, many Canadian citizens, whether Canadian born or naturalized, must spend a large part of their time abroad in connection with their businesses, and this is their choice. An applicant for citizenship, however, does not have such freedom because of the provisions of section 5(1) of the Act.
.
[23] In Re Agha, above, Justice Lemieux listed, at paragraph 52, the extensive number of factors which led him to conclude that the citizenship judge had erred in determining that the applicant had not established a centralized mode of living in Canada. These included evidence that the applicant had established a business here and bought a home, that his family was integrated into the life of the community including schooling and that he had taken steps to be licensed as a civil engineer qualified to practise. There were exceptional circumstances relating to his absences from Canada which the Court found to be temporary and not voluntary. None of those factors pertain to the applicant, apart from his purchase of a home in Canada.
[24] Although the applicant asserts that he no longer has significant ties with any other country, apart from his siblings in Pakistan, this is not sufficient for fulfilling the residence requirements of the Act. In Ahmed v. Canada(Minister of Citizenship and Immigration), 2002 FCT 1067, 225 F.T.R. 215, Madam Justice Carolyn Layden-Stevenson stressed at para. 6 that "[t]here exists a long line of authority from this Court wherein it has been determined that to meet the requirements of the Citizenship Act, residence must first be established and then it must be maintained..." This statement has since been endorsed by other members of this court: see Wu v. Canada(Minister of Citizenship and Immigration), 2003 FCT 435, [2003] F.C.J. No. 639 (QL); Shrestha, above.
[25] In this case, the applicant's difficulty is that while he initially established residence here, it was not maintained. As noted in Re Agha, above, having a driver's license, health card and filing taxes is not enough. The applicant must demonstrate a real and substantial connection to Canada.
[26] The citizenship judge made a mathematical error in calculating the number of days the applicant was present in Canada prior to the beginning of his lengthy and repeated absences. She calculated the length of time from April 28, 2000 (when he had returned from his initial trip to Pakistan) to September 8, 2001 to be 134 days. That calculation is, of course, short by one year. However, I am satisfied that the error is not material to the decision as the citizenship judge accepted that, at the outset, the applicant had made Canada the place where he had centralized his life prior to taking the job which required him to go to Guinea.
[27] The citizenship judge determined that following the initial period in which the applicant "regularly, normally and customarily" resided in Canada, his residence was no longer maintained here. I can find no error in that decision. Accordingly, this appeal must be dismissed.
ORDER
THIS COURT ORDERS that this appeal is dismissed. No order is made as to costs.
"Richard G. Mosley"
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