Shrestha v. Canada (Minister of Citizenship and Immigration), 2003 FCT 594

Date: 20030514

Docket: T-1484-01

Citation: 2003 FCT 594

OTTAWA, ONTARIO, THIS 14^TH DAY OF MAY 2003

Present:           THE HONOURABLE MR. JUSTICE MARTINEAU                                 

BETWEEN:

                                                         RAMESH MAN SHRESTHA

                                                                                                                                                       Applicant

                                                                                 and

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 The applicant is appealing the decision of Suzanne Pinel, Citizenship Judge, dated June 22, 2001, wherein she decided that the applicant did not meet the residency requirements set out in paragraph 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29 (the "Act") in order to be granted Canadian citizenship. In the case at bar, the citizenship judge found that the applicant was 858 days short of the minimum 1,095 days of residence within the four years (1,460 days) immediately preceding the date of his application.

[2]                 The applicant works for the United Nations Children's Fund ("UNICEF") and has been on assignment overseas, in the Maldives and Iraq, since becoming a Canadian permanent resident. He is currently on assignment in Ghana and has renewed his contract, which will now end in 2004.

[3]                 The citizenship judge was not convinced that the applicant fulfilled the residency requirement under the Act and concluded that:

You entered Canada, December 12, 1996. After a few days short of one month in Canada, on January 10, 1998, you returned to Maldives to resume your duties with UNICEF for a prolonged absence of 77 days. This first absence was followed by ten other prolonged absences ... [i]t is difficult to establish a residence in such a short period. Moreover between your absences when you returned to Canada to visit with your family, you never remained longer than between two weeks to once, one month. After filing your application you renewed a contract for a four-year period this time in Ghana. ... you ... have been working and residing outside Canada.

In the four years preceding your citizenship application you were present in Canada 237 days, and absent 1140. You are 858 days short of the minimum 1,095 days as required in paragraph 5(1)(c) of the Act.

I do understand the importance of your assignment but I feel at this point that your application for citizenship was premature. I have no doubt that you will eventually make an excellent Canadian citizen, but regretfully at this time, I cannot approve your application for citizenship.

[4]                 The issue raised by the present appeal of the decision of the citizenship judge is to determine if she correctly concluded that the applicant did not satisfy the residency requirements under the Act.

[5]                 The applicable standard of review in matters involving revision of a citizenship judge's decision has been established as being closer to the correctness standard, with deference owed to the special knowledge and expertise of the citizenship judge (Lam v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 177 at para. 33 (F.C.T.D.) ("Lam")).

[6]                 The residency requirement is set out at subsection 5(1)(c) of the Act, which reads as follows:

[7]                 Pursuant to this provision, a person can be granted citizenship in Canada if she/he has been a permanent resident of Canada since her/his admission as a landed immigrant and has accumulated three years of residence in Canada in the four years preceding her/his application for citizenship. In short, the three conditions to be met in order to be granted citizenship are:

1.         She/he has been lawfully admitted to Canada as a permanent resident;

2.         She/he has not ceased to be a permanent resident pursuant to section 24 of the Immigration Act, R.S.C. 1985, c. I-2 since such admission; and

3.         She/he has, within the four years immediately preceding the date of her/his application, accumulated at least three years of residence (1,095 days) in Canada, as calculated under the prescribed formula set out in subsection 5(1) of the Act.

[8]                 There is no debate in the case at bar regarding the fulfillment of the first two conditions. Therefore, the following analysis will focus on the third condition.

[9]                 The word "residence" is not specifically defined in subsection 2(1) of the Act. Conflicting views have been taken by judges of this Court concerning the necessity of maintaining a physical presence in Canada during the relevant four-year period. For certain judges, the statutory allowance of one year of absence during the four-year period creates a strong inference that a citizenship applicant's physical presence is mandatory during the other three years (Re Pourghasemi (1993), 19 Imm. L.R. (2d) 259 (F.C.T.D.); Re Chou (1997), 40 Imm. L.R. (2d) 308 (F.C.T.D.); Re Chang, [1998] F.C.J. No. 148; and Canada (Minister of Citizenship and Immigration) v. Cheung (1998), 148 F.T.R. 237).

[10]            However, other judges of this Court have adopted the view that the residency requirements in paragraph 5(1)(c) of the Act entail more than a counting of days. An applicant for citizenship with an established home in Canada does not cease to be a resident there when he leaves it for a temporary purpose whether on business or vacation, or even to pursue a course of study. Accordingly, the absences may be counted toward the total required days of the citizenship judge is satisfied that the reasons for absenteeism are justifiable (In re Citizenship Act and in re Antonios E. Papadogiorgakis, [1978] 2 F.C. 208 ("Papadogiorgakis"); and Canada (Minister of Citizenship and Immigration) v. Liu, [1999] F.C.J. No. 122).

[11]            More particularly, in Re Koo, [1993] 1 F.C. 286, at 293-294, Reed J. opted for a liberal view of the residency requirement and stated that the test is whether it can be said that Canada is the place where the applicant for citizenship "regularly, normally, or customarily lives". In other words, has he or she centralized his or her mode of existence in Canada? Reed J. then enumerated a list of questions or factors which assist in such a determination:

(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 dependants (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 1095-day total, is it 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 temporary employment abroad?

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

[12]            In the case at bar, the citizenship judge applied the test set out in Re Koo, supra but did not go through each question, simply pointing out that the applicant had not established residence before leaving again to work in the Maldives and being absent from Canada for extensive and frequent periods of time. However, the applicant provided an explanation for each absence (certified record, page 24):

[13]            The applicant did not dispute the number of days he was absent from Canada calculated by the citizenship judge but merely submitted that his absences were justified and could be counted toward the residency requirements.

[14]            In my view, even if the applicant has a reasonable explanation for being absent for such extensive periods of time, it remains that he never demonstrated that he centralized his mode of living in Canada. He did demonstrate that he rented an apartment, purchased a house and a car, obtained a driver's licence and a health card from the province of Ontario, maintained an insurance policy, filed income tax reports, visited his immediate family, who live in Canada, at every opportunity and diligently renewed his returning resident permit (certified record, pages 30-95). However, he did not convince the citizenship judge that the absences were caused by a clearly temporary situation and I cannot find any evidence that during the relevant period, he made any efforts to find employment here in Canada except when he first landed here in December 1996, when he stayed and looked for employment for a little less than one month. There was also no evidence that he had established residence before leaving for the first time.

[15]            I note that in the extract from Canada (Minister of Citizenship and Immigration) v. Lam (1999), 166 F.T.R. 308, quoted by Pelletier J., as he then was, in Chan v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 376, Simpson J. comments that a liberal construction of the residency requirement in Papadogiorgakis, supra was based on the premise that prior residence in Canada had been established before Papadogiorgakis left to study abroad. In that case, the applicant had entered Canada on a student visa on September 5, 1970, and was admitted for permanent residence on May 13, 1974. Papadogiorgakis was present in Canada from September 5, 1970 to January 28, 1976, before he left to study in the United States, that is some 5½ years after having established himself in Canada. By comparison, the applicant in the case at bar was present in Canada for a little less than a month prior to departing for the Maldives. As noted by Pelletier J., as he then was, in Canada (Minister of Citizenship and Immigration) v. Ting, [2002] F.C.J. No. 1161, another "student" case, at paragraph 11:

Had he [referring to Papadogiorgakis] applied for citizenship before he began his studies in the United States, he would have met the residence requirement on the strength on [sic] his physical presence in Canada. His was truly a case of a person with a strong attachment to Canada, and a lengthy period of presence in Canada before his departure for studies abroad. Consequently, Papadogiorgakis is not authority for the blanket proposition that time spent studying abroad is ipso facto constructive residence in Canada.

[16]            I note that the applicant seems to have no significant ties with any other country. However, this is not the sole criterion for fulfilling the residency requirements of the Act. An important recent decision, the facts of which are significantly similar to this case, is Ahmed v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1415 ("Ahmed"). In that case, the appellant arrived in Canada in 1994 and applied for citizenship in 1999. He stayed in Canada for a short time and, unable to obtain employment in his area, he left in January 1995 for an interview with the United Nations in New York. As a result of the interview, he received an offer as a field officer with the World Health Organization assigned in Afghanistan commencing in October 1995.

[17]            In Ahmed, supra, Layden-Stevenson J. stressed the fact 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 [...]". Even though the applicant seemed to have resided 15 months in Canada before leaving, Layden-Stevenson J. concluded at paragraph 9 that:

... Given the paucity of evidence before the citizenship judge with respect to the fifteen month period between the appellant's arrival in and departure from Canada, I cannot conclude that she erred in failing to find that the appellant had established his residence in Canada at that time.

[18]            Layden-Stevenson J. determined that the appellant in Ahmed, supra, did not meet the residency requirements because he did not establish residence in Canada even though he was assigned abroad for his employment. This is comparable to the situation of the applicant in the case at bar who did not even stay one month upon his arrival in Canada before going abroad for his assignment with UNICEF.

[19]            I will adhere to Layden-Stevenson J.'s conclusion which shows that, even though the appellant was working for the United Nations and assigned to a foreign country, as in the case at bar, it did not allow him to count the absences toward the residency requirement. As in the present case, Ahmed's family became Canadian citizens, and he had himself accumulated all the normal passive indicia during the period immediately following his landing in Canada, which was even longer than the initial period in the present case. Furthermore, Ahmed did not have stronger ties with another country than Canada, just as in the case at bar. All these facts were still not enough in Ahmed to conclude that the applicant should be granted Canadian citizenship. Similarly, they are insufficient in the case at bar to conclude that the citizenship judge erred, even if this situation may seems unjust.

[20]            It is clear that the fact that the applicant is only able to find employment abroad to support his family constitutes an injustice insofar as it is preventing him from fulfilling the residency requirements of the Act in order to obtain his Canadian citizenship. However, it is also clear from the case law that the establishment of residency in Canada is a prerequisite to the acquisition of citizenship. As illustrated by Walsh J. in Leung, Re (1991), 42 F.T.R. 149 (F.C.T.D.):

Many Canadian citizens, whether Canadian born or naturalized, must spend a large part of their time abroad in connection with their business, and this is their choice. An applicant for citizenship, however, does not have such freedom because of the provisions of s. 5(1) of the Act.

[21]            The applicant raises Agha (Re) (1999), 166 F.T.R. 245 (F.C.T.D.) ("Agha") to demonstrate that the citizenship judge failed to consider all of the circumstances surrounding the absences from Canada before denying his application. The burden to be met according to this case is to demonstrate by objective facts the connections with Canada:

1.         That he had established a centralized mode of living in Canada before his physical absences from Canada; and

2.         Notwithstanding his physical absences from Canada, he had in fact maintained a centralized mode of living in Canada.

[22]            In Agha, one main distinction from this case can be observed. The applicant's absences were caused by his sickness, which was due to the failure of his business venture in Canada. The applicant also had been residing in Canada since September 1997 (following the appeal), which was taken into consideration to establish the temporary nature of the absences. The Court concluded that "there were exceptional and special circumstances surrounding Mr. Agha's physical absences from Canada justifying the taking into account of those absences for purposes of the residency requirement under the Citizenship Act". However, in my view Agha differs from the case at bar and my earlier conclusion stands.

[23]            As for the adequacy of the citizenship judge's reasons, this specific issue was defined in the context of citizenship applications by Lutfy J., as he then was, in Lam, supra, as an obligation to give "clear reasons which demonstrate an understanding of the case law". In Ahmed, supra, Layden-Stevenson J. enumerated criteria taken from R. v. Sheppard (2002), 284 N.R. 342, 210 D.L.R. (4^th) 608, and adapted them to the citizenship context as follows:

(a) The delivery of reasoned decisions is inherent in the judge's role.

(b) An unsuccessful applicant should not be left in doubt as to why he or she was not successful.

(c) Lawyers for parties may require reasons to assist them in considering and advising with respect to a potential appeal.

(d) Not every failure or deficiency in the reasons provides a ground of appeal.

(e) Reasons provide an important function in the appellate process. Where the functional needs are not satisfied, the appellate court may conclude there is an error of law depending on the circumstances of the case and the nature and importance of the decision being rendered.

(f) The judge is not held to some abstract standard of perfection.

(g) The judge's duty is satisfied by reasons which are sufficient to serve the purpose for which the duty is imposed, i.e., a decision which, having regard to the particular circumstances of the case, is reasonably intelligible to the parties and provides the basis for meaningful appellate review of the correctness of the judge's decision.

(h) While it is presumed that judges know the law with which they work day in and day out and deal competently with the issues of fact, the presumption is of limited relevance. Even learned judges can err in particular cases, and it is the correctness of the decision in a particular case that the parties are entitled to have reviewed by the appellate court.

(i) Where the decision is deficient in explaining the result to the parties, but the appeal court considers itself able to do so, the appeal court's explanation, in its own reasons, is sufficient. There is no need in that case for a new hearing.      

[24]            In the case at bar, the citizenship judge, in her letter dated June 22, 2001, listed all the oral and documentary evidence before her that she considered, set out the issue clearly, and analysed the facts according to the applicable law. She also mentioned clearly the choices open to the applicant, which in this case are either an appeal to the Federal Court or a new application for citizenship. I cannot conclude that the reasons were insufficient or inadequate.

[25]            Although I find the present situation most unfortunate and despite all the sympathy I have for the applicant, I do not believe that the citizenship judge's decision was wrong according to the applicable standard of review and in deciding that the present application for citizenship was premature.

ORDER

THIS COURT ORDERS that the appeal of the decision of the citizenship judge Suzanne Pinel, dated June 22, 2001, wherein the latter decided that the applicant did not meet the residency requirements under section 5(1)(c) of the Citizenship Act, be dismissed. The application for citizenship is premature, nevertheless the applicant can reapply for citizenship at a later date.

"Luc Martineau"

________________________________

Judge

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                              T-1484-01

STYLE OF CAUSE:              RAMESH MAN SHRESTHA v. MINISTER OF

CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                      OTTAWA

DATE OF HEARING:                        APRIL 23, 2003

REASONS FOR ORDER

AND ORDER :                                    THE HONOURABLE MR. JUSTICE MARTINEAU

DATED:                                                MAY 14, 2003

APPEARANCES:

KARLA UNGER                       FOR THE APPLICANT

LYNN MARCHILDON           FOR THE RESPONDENT

SOLICITORS OF RECORD:

BELL, UNGER, MORRIS        FOR THE APPLICANT

OTTAWA

MORRIS ROSENBERG          FOR THE RESPONDENT

DEPUTY ATTORNEY GENERAL

OF CANADA

FEDERAL COURT OF CANADA

                                    Date: 20030514

                               Docket: T-1847-00

BETWEEN:

RAMESH MAN SHRESTHA

                                               Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                           Respondent

REASONS FOR ORDER

AND ORDER