Date: 20061123
Docket: T-468-06
Citation: 2006 FC 1423
Ottawa, Ontario, November 23, 2006
PRESENT: The Honourable Barry Strayer
BETWEEN:
SHIRDI
NULLIAH
Applicant(s)
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent(s)
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1]
This
is an appeal under subsection 14(5) of the Citizenship Act, R.S., 1985,
c. C-29 (Act).
Facts
[2]
The
Applicant is a citizen of South Africa, having been born there
in 1978. He came with his family to Canada in 1983. He returned
briefly to South
Africa
and then the family has lived here since 1985. The Applicant went to school in
Edmonton between 1985
and 1996. During that time, he was involved in many student activities,
community work and sports. In 1996 he was accepted into a 5-year medical
school program at a medical college in India where he
proceeded to study. After graduation he stayed there for a further year of
internship at the same hospital and then a further year of studies for a United
States
licensing examination program. He returned to Canada in the
summer of 2003. While studying in India, he had returned
annually to see his family. Within a few weeks after his return to Canada in 2003, he
applied for citizenship. It is common ground that in the four years preceding
that application which was submitted on September 26, 2003 he had been present
in Canada for only 171
days and absent 1289 days.
[3]
Paragraph
5(1)(c) of the Act states that a permanent resident (which the Applicant was),
in order to be given citizenship, must have “within the four years immediately
preceding the date of his or her application, accumulated at least three years
of residence in Canada…”. As will be discussed below, this requirement has
been frequently interpreted by this Court as not requiring an actual physical
presence within Canada for the whole of three years out of the
preceding four years, if an Applicant can demonstrate that he has established
himself clearly as a Canadian resident notwithstanding absences from the
country from time to time.
[4]
The
citizenship judge hearing the Applicant’s application for citizenship concluded
that during the seven years of medical training in India the Applicant had not “centralized”
his mode of living in Canada and that he had therefore not met the requirements
of paragraph 5(1)(c) of the Act. The citizenship judge also declined to make a
recommendation under either subsections 5(3) or 5(4) of the Act. Those
subsections provide as follows:
|
(3)
The Minister may, in his discretion, waive on compassionate grounds,
(a)
in the case of any person, the requirements of paragraph (1)(d) or (e);
(b)
in the case of a minor, the requirement respecting age set out in paragraph
(1)(b), the requirement respecting length of residence in Canada set out in
paragraph (1)(c) or the requirement to take the oath of citizenship; and
(c)
in the case of any person who is prevented from understanding the
significance of taking the oath of citizenship by reason of a mental
disability, the requirement to take the oath.
(4)
In order to alleviate cases of special and unusual hardship or to reward
services of an exceptional value to Canada, and notwithstanding any other
provision of this Act, the Governor in Council may, in his discretion, direct
the Minister to grant citizenship to any person and, where such a direction
is made, the Minister shall forthwith grant citizenship to the person named
in the direction.
|
3)
Pour des raisons d’ordre humanitaire, le ministre a le pouvoir
discrétionnaire d’exempter :
a)
dans tous les cas, des conditions prévues aux alinéas (1)d) ou e);
b)
dans le cas d’un mineur, des conditions relatives soit à l’âge ou à la durée
de résidence au Canada respectivement énoncées aux alinéas (1)b) et c), soit
à la prestation du serment de citoyenneté;
c)
dans le cas d’une personne incapable de saisir la portée du serment de
citoyenneté en raison d’une déficience mentale, de l’exigence de prêter ce
serment.
(4)
Afin de remédier à une situation particulière et inhabituelle de détresse ou
de récompenser des services exceptionnels rendus au Canada, le gouverneur en
conseil a le pouvoir discrétionnaire, malgré les autres dispositions de la
présente loi, d’ordonner au ministre d’attribuer la citoyenneté à toute
personne qu’il désigne; le ministre procède alors sans délai à l’attribution.
|
[5]
The
Applicant appeals these decisions.
Analysis
[6]
The
parties agreed before me that the standard of review of decisions of
citizenship judges on the issue of residence is that of reasonableness. That
corresponds with the analysis of many other judges of this Court: see, for
example, Zeng v. Canada (Minister of
Citizenship), 2004 FC 1752 at paras. 9-10; Canada (Minister of
Citizenship) v. Lee, 2005 FC 785 at para. 25. I respectfully
concur in that view. What is involved essentially in such a decision is the
application of some principles of law to the particular facts of the case, a
process which normally attracts the standard of review of reasonableness.
[7]
It
has been held in this Court that there are at least two approaches which
citizenship judges can take to the application of the residence requirements of
paragraph 5(1)(c) of the Act. One involves a strict mathematical application
of the residence requirements, interpreting the word “residence” as equal to
“physical presence”. Another permissible approach is to interpret “residence”
as meaning something such as “normal residence”, which is to say that a person
need not be physically present for the whole of the three years out of four
preceding the application for citizenship, but may be absent from time to time
if he or she can establish that they have “centralized” their mode of existence
in Canada. This latter test was enunciated, not for the first time but perhaps
most clearly, in Re Koo, (1992) 59 F.T.R. 27 (D.D.) at para. 10.
It has been said in this Court that a citizenship judge may choose either one
test or the other, but having chosen one must then apply it in a coherent
fashion: see Canada (Minister of Citizenship) v. Mindich (1999), 170
F.T.R. 148 at para. 9; Liam v. Canada (Minister of
Citizenship), [1999] F.C.J. No. 410 at para. 14.
[8]
In
the present appeal, the Applicant contends that the citizenship judge had
chosen the Re Koo test but failed to apply it coherently, ignoring some
of the factors identified by Justice Barbara Reed in Re Koo, above,
as being appropriate for determining whether an Applicant had centralized
his/her mode of existence in Canada. On the other hand, the Respondent argues
that the citizenship judge here was actually applying the mathematical test and
that the use of that test clearly would prevent the Applicant from obtaining
citizenship, as he had been present in Canada for only 171 days in the previous
four years, whereas he was required to be in Canada for at least 1095 days, that
is, three years. Therefore the Respondent contends that there is no basis for
challenging the decision.
[9]
It
is true that the citizenship judge here did not express himself as clearly as
he might in indicating what test he was applying. I am satisfied, however,
from the careful reading of his decision that he was really attempting to apply
the Re Koo type of test. If he intended to apply the mechanical test of
equating “residence” to “physical presence” then he would not have needed to go
beyond the first three sentences of the operative part of his decision. These
sentences were as follows:
According to
the Citizenship Act, the four year period preceding the date of application
under consideration is September 16, 1999 to September 16, 2003. During this
period you were physically present in Canada for 171 days and were
physically absent for 1289 days or nearly 88% of the time. You are short 929
days of physical presence in Canada.
[10]
Instead
the citizenship judge went on to remark that the Applicant had spent “very
little time in Canada during the seven years of medical training”, that he had
indicated he was planning to gain clinical experience in the United States and
do further studies there, and had noted earlier that the rest of the Applicant’s
family were Canadian citizens. Perhaps more importantly he speaks of the time
when the Applicant was studying in India and returning only
occasionally to Canada and says:
During that
time your mode of living was not centralized in Canada and your connection to India appears to
be much stronger than your connection to Canada.
[11]
None
of these points would have been material to a strict application of a
requirement of 1095 days of physical presence in Canada in the four
years preceding his application for citizenship. So I can assume the citizenship
judge intended to apply the Re Koo test.
[12]
Unlike
the Applicant, however, I am satisfied that the citizenship judge adequately
applied that type of test of centralization of a mode of life in Canada.
[13]
In
determining whether the citizenship judge here did an adequate analysis of the Re
Koo factors, I should first say that in my view it is wrong to treat those
factors as enunciated by Justice Reed as some kind of code or mandatory
checklist. I do not think that she intended them as such. In the paragraph in
which she sets out six factors or questions to consider she begins by the
following:
The
conclusion I draw from the jurisprudence is that the test 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 centralised his or her mode of existence.
Questions that can be asked which assist in such a determination are:…
[14]
It
will be seen that she was basically setting out a rationale for not insisting
on physical presence as the equivalent of “residence”. She said that the
alternative test is whether an Applicant “regularly, normally or customarily
lives” in Canada and offered another formulation as to whether “he or she has
centralised his or her mode of existence” in Canada. She then
goes on to list questions “that can be asked which assist in such a
determination…” [emphasis added]. In my view the questions which follow are
simply examples of questions that might assist in establishing whether the Applicant’s
mode of existence had been centralized in Canada. She does
not say that these are the questions which must be asked, nor does she
say that they are exhaustive. I therefore believe that if a citizenship
judge’s line of reasoning appears to be rationally directed toward determining
if, in the period in question, the Applicant had centralized his life in Canada, his
conclusions should not be rejected just because he has not mechanically followed
the Re Koo list of questions.
[15]
I
believe the citizenship judge has adverted to a number of factors which would
help him determine whether the Applicant regularly, normally or customarily
resided in Canada during three
of the four years preceding his application. The citizenship judge notes that
the Applicant was not in fact present regularly in Canada since he
finished his grade 12 and went to India in June, 1996. This is
pertinent to question (1) set out in Re Koo. He notes that the
Applicant’s family members are Canadian citizens and his father is a
businessman with extensive community involvement presumably in Edmonton where he
lives. This is pertinent to question (2) in Re Koo. The citizenship
judge notes that the Applicant has spent very little time in Canada during the
seven years of medical training in India, a matter pertinent to
question (3) in Re Koo. He does note that the Applicant was short 929
days of having the requisite three years presence in Canada, a point
pertinent to answering question (4) in Re Koo. He notes that “your
connection to India appears to
be much stronger than your connection to Canada”, a point
pertinent to answering question (6) in Re Koo. Most importantly he
quotes the language used in Re Koo as the basic test to which the
enumerated questions are pertinent: namely in his conclusion “your mode of
living was not centralized in Canada”.
[16]
Counsel
for the Applicant contended that the citizenship judge wrongly applied the
evidence because he cited a letter filed with the application for citizenship
in September, 2003 in which the Applicant requested urgent processing of his
citizenship application so that he could pursue studies and an examination in
the United
States
to get medical qualifications there. In that letter he also said that he
wanted to do a post-graduate degree in the United States and a residency
program in surgery there “over the next four years”, adding “without a Canadian
citizenship I stand a very dismal chance of attaining a spot at a good
university”. In that letter he concluded by saying:
I do have
intentions of coming back to Edmonton, after finishing my higher studies in the
US. I would
like to work here and make this my home once again.
[Emphasis
added]
The citizenship judge also noted that at
the hearing the Applicant indicated that he was going to apply for a medical residency
in Canada. Counsel
for the Applicant felt that the citizenship judge erred in paying attention to
the letter at all and using it as a basis for saying in his decision “your
future in relation to where you will be residing appears unclear”.
[17]
In
my view it was quite proper for the citizenship judge to have particular regard
to the letter of September, 2003 which accompanied the application for
citizenship. In applying the residency requirements, the citizenship judge
must consider the events and expressed intentions leading up to the application
submitted on September 26, 2003, not what has transpired since the
application: see, for example, Canada (Secretary of State) v. Yu,
[1995] F.C.J. No. 919 (T.D.) at para. 8. It was not improper or irrelevant for
the citizenship judge to take note of the letter of September 3, 2006 the
thrust of which was to ask for the acceleration of a grant of citizenship to
the Applicant in order that he could leave the country and go to the United
States where he planned to spend the next four years. The phrase “I do have
intentions of coming back to Edmonton… I would like to work
here and make this my home once again.” could reasonably be interpreted by the
citizenship judge as the words of a person who did not regard himself as a
resident of Canada in 2003.
[18]
Similarly
counsel for the Applicant complains that the citizenship judge should have
taken into account the statement in a “residence questionnaire” completed by
the Applicant to the effect that he intends to practice as a doctor in Alberta. This form
was completed on December 4, 2004 some three months after the date of his
application for citizenship which for the reasons stated above is the critical
date: the citizenship judge should address his mind to events and expressions
of intent prior to and including that date.
[19]
I
am therefore satisfied that the decision of the citizenship judge was
reasonable. He had regard to the relevant factors in concluding that the
Applicant had not accumulated three years of residence in Canada during the
four years preceding his application for citizenship.
[20]
Counsel
for the Applicant also argues that the citizenship judge did not make a
determination, as he was obliged by subsection 15(1) of the Act to do, as to
whether to recommend an exercise of discretion by the Minister under subsection
5(3) or by the Governor in Council under subsection 5(4) to grant citizenship
to the Applicant notwithstanding his failure to establish residence. I believe
that this issue was raised by the Applicant to the end that I might refer this
matter back to the citizenship judge for consideration. In reply to my
question as to how subsection 5(3) could be relevant to this Applicant, counsel
conceded that only subsection 5(4) would be pertinent and that it could have
been resorted to on the basis that the Applicant would suffer special unusual
hardship if he were denied citizenship in the circumstances. I have held
elsewhere in Re Khat, 1991, 49 F.T.R. at 253 that determinations by a citizenship
judge under subsection 15(1) cannot be the subject of an appeal to
this Court. That aside, I accept the
submission by the Respondent that the citizenship judge in this case did make a
determination as to whether he could make a recommendation under subsection
5(4). He stated as follows:
There was no
evidence presented to me at the hearing of special circumstances that would
justify me in making such a recommendation under either of subsections 5(3) or
5(4).
Disposition
[21]
For
these reasons the appeal will be dismissed.
JUDGMENT
THIS COURT ADJUDGES that
the appeal be dismissed.
“ B.
L. Strayer ”
Email this Content