Canada (Minister of citizenship and immigration) v. Vericherla, 2003 FCT 267

Date: 20030303

Docket: T-1671-01

Neutral citation: 2003 FCT 267

Vancouver, British Columbia, this 3^rd day of March, 2003

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                  MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                       Applicant

                                                                              - and -

                                                           NEELIMA VERICHERLA

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                 This is an appeal of the decision of the Citizenship Judge, dated July 20, 2001, wherein the respondent's application for Canadian citizenship was approved.

[2]                 The applicant seeks an order setting aside the decision of the Citizenship Judge and refusing the respondent's citizenship application.

Background

[3]                 The respondent, Neelima Vericherla was born in India on October 2, 1977. She is a citizen of India.

[4]                 On September 15, 1995, the respondent arrived in Canada, with her parents and her brother, and became a permanent resident. On December 28, 1998 the respondent submitted an application for Canadian citizenship.

[5]                 The respondent was physically present in Canada for 120 days during the 4 years preceding her application for citizenship. This is 975 days short of the 1,095 days (3 years), as required by paragraph 5.(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29.

[6]                 The respondent's absences from Canada were for the purposes of completing her medical studies at university in India. On her residence questionnaire at section 16, the respondent states:

I was already studying in the university in India before taking residence in Canada. I could not later shift to Canadian universities because of admission restrictions to medical studies, I also paid US $75,000 as tuition fees for the medical education in India which could not have been refunded if I discontinued my studies.

[7]                 The respondent's history of absence from Canada since arriving is as follows:

[8]                 The respondent's history of time spent in Canada since arriving is as follows:

[9]                 The respondent re-entered Canada as a returning resident. While in Canada, the respondent stayed with her mother, father and brother, who are all Canadian citizens. The respondent has an Alberta health card, a Newfoundland and Labrador driver's licence, and a social insurance number.

[10]            The Citizenship Judge approved the respondent's application for citizenship.

[11]            The Citizenship Judge provided the following reasons:

Father - professional engineer, brother enrolled at U of Calgary. Mother homemaker. All Canadian citizens. She is the only member of her family not a citizen. Will write her qualifying medical exam in 6 months and hopes to intern here and then go to University for post grad work in Canada. Client seems Canadianized in 117 days she has lived here. I recommend her for citizenship. (Because of the difficulty of medical school and the problem of a refund could not take education here, but did return at every opportunity)

[12]            This is the appeal of the decision of the Citizenship Judge, dated July 20, 2001, wherein the respondent's application for Canadian citizenship was approved.

Applicant's Submission

[13]            The applicant, Minister of Citizenship and Immigration, submits that the Citizenship Judge either misunderstood or misapplied the test set out in Re Koo, [1993] 1 F.C. 286 (T.D.).

[14]            The applicant submits that of all the factors in Re Koo, supra, the Citizenship Judge seemed to concentrate on the fact that the respondent's immediate family resides in Canada and that she could not get a refund for the fees paid in India. The applicant submits that the Citizenship Judge did not properly consider the other factors Reed J. found in Re Koo, supra to be determinative of the quality of the connection to Canada.

[15]            The applicant submits that the respondent was physically present in Canada for only 117 days during the qualifying period and that during this time she did not have an established residence of her own, but rather resided with her parents. The applicant submits that the evidence the respondent used to establish her residency here in Canada is made up of passive indicia and that there is no evidence that she has a bank account in Canada or that she belongs to any community groups or associations. The applicant submits there is no evidence in the record that indicates that she ever established herself as a resident of Canada prior to her initial return to India or that she centralized her mode of living here during the relevant time period. The applicant submits that it does not appear that any evidence was submitted to show effort by the respondent to integrate into Canadian society. The applicant submits that no mention was made of any educational, social or religious activities the respondent may be involved with in Canada.

[16]            The applicant submits that this is not a "close case" which justifies departure from the strict requirements of paragraph 5.(1)(c) of the Citizenship Act, supra.

Respondent's Submissions

[17]            The respondent submits that applying the "reason test" for determining residency for the purposes of citizenship, summarized by Cullen J. in Re Ng, [1996] F.C.J. No. 1357 (QL) (T.D.), attending school abroad is usually considered sufficient reason to grant citizenship. The respondent submits that in this case, she had commenced studies at considerable family expense, before arriving in Canada, and could not attain a similar educational status here, due to different educational standards and intake procedures.

[18]            Under the intention test, also summarized in Re Ng, supra, the respondent submits that she has demonstrated intent by obtaining returning resident permits, returning to Canada to live with her family during every annual vacation, as well as obtaining a Canadian social insurance number, a driver's licence and health care coverage. As a university student emotionally and financially dependent on her family, the respondent submits no further indicia of attachment to Canada could be expected.

[19]            The respondent submits that according to Re Papadogiorgakis, [1978] 2 F.C. 208 (T.D.), "residence" under paragraph 5.(1)(c) is not limited to physical residence. By pursuing studies abroad, the respondent submits that she does not break the continuity of maintaining or centralizing her ordinary mode of living in Canada.

[20]            Following Re Chan, [1988] F.C.J. No. 323 (QL) (T.D.), the respondent submits that the maintenance of rooms at the home of her parents is sufficient to satisfy the physical requirements of a pied-à-terre. The respondent submits the fact she did not maintain memberships in professional or other associations while she was abroad is not significant.

[21]            The respondent submits that her situation bears no resemblance to Re Koo, supra as the holidays she spent in Canada were consistent with a return to a place where one "regularly, normally and customarily lives". The respondent submits that not only did she have the intention of returning to Canada on completion of her degree, but she has in fact done so.

[22]            The respondent submits that the Citizenship Judge correctly applied the test set out in Re Papadogiorgakis, supra as by spending all her holidays in Canada, the respondent clearly sought to centralize her mode of living here. The respondent submits the fact she applied for returning resident permits before leaving Canada and while she was studying in India also demonstrates that she intended to maintain a residence in Canada while she was abroad. The respondent submits she has close family links in Canada and has made regular trips to Canada.

[23]            Lastly, the respondent submits that the technical requirements of the Citizenship Act, supra should be interpreted liberally.

[24]            Issue

Did the Citizenship Judge err in approving the respondent's application for citizenship in

light of the residency requirements under paragraph 5.(1)(c) of the Citizenship Act, supra?

Relevant Statutory Provisions and Regulations

[25]            The relevant section of the Citizenship Act, supra states:

Analysis and Decision

[26]            Issue

Did the Citizenship Judge err in approving the respondent's application for citizenship in light of the residency requirements under paragraph 5.(1)(c) of the Citizenship Act, supra?

In Lam v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 410 at paragraph 33, Lutfy J. (as he then was) stated the standard of review to be applied in a review of a Citizenship Judge's decision:

Justice and fairness, both for the citizenship applicants and the Minister, require some continuity with respect to the standard of review while the current [Citizenship] Act is still in force and despite the end of the de novo trials. The appropriate standard, in these circumstances, is one close to the correctness end of the spectrum. However, where citizenship judges, in clear reasons which demonstrate an understanding of the case law, properly decide that the facts satisfy their view of the statutory test in paragraph 5(1)(c), the reviewing judges ought not to substitute arbitrarily their different opinion of the residency requirement. It is to this extent that some deference is owed to the special knowledge and experience of the citizenship judge during this period of transition.

I will adopt that standard in this case.

[27]            In Re Koo, supra, Reed J. stated at 293 to 294:

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 centralized his or her mode of existence. Questions that can be asked which assist in such a determination 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?

[28]            An analysis of these factors, used to determine whether a person meets the residence requirements of paragraph 5.(1)(c) of the Citizenship Act, supra, is discussed below.

(1) Was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship?

The respondent arrived in Canada on September 15, 1995, with her parents and her brother, and became a permanent resident. She first left Canada 13 days later, on September 28, 1995.

(2) Where are the applicant's immediate family and dependents (and extended family) resident?

The respondent's mother, father and brother are resident of Canada. They are all Canadian citizens and live in Alberta.

(3) Does the pattern of physical presence in Canada indicate a returning home or merely visiting the country?

The respondent's absences from Canada were for the purposes of completing her medical studies at university in India. She submits that she returned to Canada during her vacation, during which time she resided with her family. Her pattern of physical presence in Canada could therefore indicate a returning home.

(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?

The respondent was physically present in Canada for 120 days (approximately 4 months) during the 4 years preceding her application for citizenship. This is 975 days (approximately 2 years, 8 months) short of the 1,095 day total required by paragraph 5.(1)(c) of the Citizenship Act, supra.

(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?

The absences of the respondent could be classified as temporary in nature for the purpose of "following a course of study abroad as a student". She attended university in India to study medicine.

As noted on her Residence Questionnaire at section 16, the respondent states:

I was already studying in the university in India before taking residence in Canada. I could not later shift to Canadian universities because of admission restrictions to medical studies, I also paid US $75,000 as tuition fees for the medical education in India which could not have been refunded if I discontinued my studies.

(6) What is the quality of the connection with Canada: is it more substantial than that which exists with any other country?

Although the respondent only resided in Canada for 13 days prior to her first departure to return to university in India, she returns to Canada for each vacation. She obtained returning resident permits before leaving. When she returns on vacation, she resides with her mother, father and brother. The respondent submits that she intended to return to Canada on completion of her degree and has in fact done so. The respondent planned to write her qualifying medical exams and wishes to pursue post-graduate work in Canada.

The respondent maintains a current Alberta health card, a social insurance number, and a Newfoundland and Labrador driver's licence. On her "Residence Questionnaire" at section 14, the respondent indicated she does not pay Canadian income tax or maintain a Canadian bank account.

[29]            Under Factor 1, the respondent spent only 13 days in Canada prior to her first departure from Canada. In my view, the respondent in this case did not establish a centralized mode of living in Canada in those 13 days. In order to have her absences from Canada counted towards the 1,095 day requirement of the Act, she must have first established a centralized mode of living in Canada prior to her absences.

[30]            Dubé J. of this Court stated in Canada (Minister of Citizenship) v. Lo, [1999] F.C.J. No. 130 (QL) (T.D.) at paragraphs 3 to 6:

. . .

Physical presence in Canada throughout the period is less essential where a person has in mind and fact settled into or maintained or centralized his or her own ordinary mode of living in this country. That was the case of the student in the Papadogorgakis case (supra), who had established a mode of living in Nova Scotia before going to study in the United States.

Unfortunately such is not the case of the respondent here who, obviously, cannot have established a mode of living in Canada in only 7 days.

Consequently her application was premature. Now that she has completed her studies and has settled in Vancouver, she may in due course make a fresh application for Canadian citizenship and undoubtedly will be successful.

Thus the appeal of the Minister is allowed.

[31]            The respondent does not satisfy Factor 1 in the Koo, supra test.

[32]            In summary, it is my view that the respondent did not establish a centralized mode of living in Canada in the 13 days she was present in Canada before her first departure. As a result, I am not prepared to count her periods of absence from Canada towards the 1,095 day residence requirement. I find that the Citizenship Judge was not correct in approving the respondent's application for Canadian citizenship.

[33]            I would note that even considering the respondent's proposed amendments to paragraphs 1 and 3 of her memorandum of fact and law, I would still come to the same decision.

[34]            Simply put, the respondent's application for citizenship was premature.

[35]            The application (appeal) of the Minister of Citizenship and Immigration is allowed.

ORDER

[36]            IT IS ORDERED that the application (appeal) is allowed.

(Sgd.) "John A. O'Keefe"

J.F.C.C.

Vancouver, B.C.

March 3, 2003

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   T-1671-01

STYLE OF CAUSE: MINISTER OF CITIZENSHIP

AND IMMIGRATION

- and -

NEELIMA VERICHERLA

PLACE OF HEARING:                                   Calgary, Alberta

DATE OF HEARING:                                     Tuesday, October 8, 2002

REASONS FOR ORDER AND ORDER OF O'KEEFE J.

DATED:                      Monday, March 3, 2003

APPEARANCES:

Tracy King

FOR APPLICANT

Gary E. Hansen

FOR RESPONDENT

SOLICITORS OF RECORD:

Morris Rosenberg, Q.C.

Deputy Attorney General of Canada

FOR APPLICANT

Hansen & Company

FOR RESPONDENT