Date: 20050407
Docket: T-1210-04
Citation: 2005 FC 462
BETWEEN:
NADINE LAMA
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
De MONTIGNY J.
[1] The applicant is appealing a decision by Citizenship Judge Gilbert Decoste, dated January 26, 2004, denying her citizenship application on the basis that she did not meet the residency requirements provided in paragraph 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29 (the Act). Specifically, the Citizenship Judge found that the applicant had failed to demonstrate that she had established her residence in Canada either before or after being absent from Canada a number of times.
[2] It should be mentioned that citizenship applications were also made by her father (docket T-1207-04), her mother (docket T-1208-04) and her brother (docket T-1211-04); their applications were dismissed by the same Citizenship Judge, and each of those decisions was appealed to this Court and heard on February 7 and 8, 2005. However, the applicant's mother withdrew her appeal at the hearing.
Context
[3] The applicant stated that she arrived in Canada on August 18, 1998, with a student visa. She obtained permanent resident status on November 27, 1999, and applied for Canadian citizenship on October 15, 2002.
[4] It was very hard to determine precisely how many days the applicant was actually present in Canada in the four years preceding her citizenship application. In her citizenship application, the applicant stated that she had been absent from Canada for 317 days and present for 1,008 days, for a total of 1,325 days during the reference period defined by the Act. In the residence questionnaire, she reported absences that she had not reported in her application. Furthermore, there is no evidence that she was present in Canada between October 12, 2001, and October 15, 2002. The applicant explained that these discrepancies were due to her reluctance to talk about her trips to a London hospital for the purposes of artificial insemination.
Decision
[5] After noting the discrepancies between the applicant's citizenship application and the residence questionnaire, the Citizenship Judge's first finding was that the applicant had been present in Canada for only 646 days during the reference period set out in the Act. He then proceeded to analyze the record, applying the criteria developed by Reed J. in Re Koo, [1993] 1 F.C. 286 (T.D.), to determine whether she had centralized her mode of existence in Canada.
[6] For greater ease of reference, the Citizenship Judge's analysis is reproduced below:
[TRANSLATION]
ANALYSIS:
In order to determine whether the applicant had shown that Canada is the country where she centralized her mode of living, I referred to the questions asked by Reed J. in her decision in Re Koo, (1992) 19 Imm. L.R. (2d) 1, 59 F.T.R. 27, [1993] 1 F.C. 286 (T.D.).
Here is how I addressed each of those questions:
1- Was the applicant in Canada for a long time before her first absence? Were her absences recent and did they occur immediately before the application for citizenship?
The applicant states that she left Canada four months after her arrival for a 23-day visit to Jordan. The applicant was then absent from Canada 19 times for varying periods of time. She applied for citizenship two and a half months after returning from a stay in London, according to the declared absences but there has been no return stamp in her passport since March 2000.
2- Where do the applicant's immediate family members and dependants (members of the extended family) reside?
The applicant declares that she lives with her parents and her brother in Montréal, while her husband lives in Toronto. She has been married since June 2000. Her extended family lives in the Middle East.
3- Does the pattern of her physical presence in Canada indicate that the applicant was returning home to Canada or that she was merely visiting?
The applicant declares that she was absent from Canada on 20 occasions between October 16, 1998, and October 15, 2002. She went to Jordan (10 times), to the U.S.A. (5 times), to England (4 times) and to Cuba (1 time). The longest period of time that she remained in Canada was four months. We can determine that the applicant came to Canada as a visitor given that she was absent between each session of her university studies.
4- What is the extent of the applicant's absences, if she is only a few days short of residence to satisfy the required 1095 days, it is easier to find deemed residence than if those absences are extensive?
For the qualifying period, the applicant is missing 449 days to satisfy the minimum of 1095 days. That is a very significant difference.
5- Were these absences caused by a situation that was clearly temporary, such as missionary work abroad, studies abroad, temporary employment abroad, accompanying a spouse who accepted temporary work abroad.
The applicant's absences are not due to a situation that was clearly temporary, as defined in the question. She was absent for vacations, for family visits, her marriage and her honeymoon (141 days) for a total of 679 days.
6- What is the quality of the connection with Canada: is it more substantial than that which exists with any other country?
The quality of the applicant's connection that the applicant maintained with Canada is less substantial than the one she maintained outside Canada. In fact, she spent 51% of her time outside Canada for different reasons but never for employment because she does not have a job. You must be present more than half the time in order to integrate into a new country.
[7] Based on this analysis, the Citizenship Judge found that the applicant did not meet the requirements of paragraph 5(1)(c) of the Act. He also felt it worth mentioning that the applicant had not declared all of her absences in her application, that she had two Jordanian passports that she had used simultaneously and that there was nothing establishing where she had lived between October 15, 2002, and July 25, 2003.
Applicant's arguments
[8] The applicant argued that the Citizenship Judge erred in fact and in law for the following reasons:
• He should have concentrated on the period from which the applicant has been lawfully admitted to Canada for permanent residence, since she was only able to stay in Canada as a tourist prior to November 22, 1999;
• He should have taken into consideration the fact that the reasons for her absences were very personal (i.e. artificial insemination);
• He did not take into account the fact that the authorities do not always stamp the passports of permanent residents returning to Canada;
• He did not consider that all of the applicant's family lives in Canada and that she even sponsored her husband so that he could come to reside in Canada;
• He assigned no importance to the many documents filed into evidence to establish her residence in Canada, and did not ask her for any other type of documents.
[9] Finally, the applicant argued that the Citizenship Judge erred in wrongly imposing a burden of proof beyond reasonable doubt, rather than on the balance of probabilities.
Respondent's arguments
[10] First, the respondent claims that the Citizenship Judge could opt for any one of the three interpretations traditionally accepted by this Court if the applicant satisfied the requirements of paragraph 5(1)(c) of the Act, on condition that it was applied correctly. According to the flexible approach accepted in Re Koo, it is possible to reside in Canada within the meaning of the Act without being physically present; according to the respondent, physical presence nonetheless remains the most important factor. Regardless of which version of the facts that we accept, the applicant is very far from satisfying the minimum number of days required to satisfy the requirement of paragraph 5(1)(c).
[11] Second, the respondent argues that the Citizenship Judge considered the evidence as a whole and properly determined that the applicant had not centralized his mode of living in Canada after reviewing the tests set out in Re Koo. First, the applicant had not resided in Canada for a long period before her numerous absences. She also made many trips abroad, to Great Britain as well as to the Middle East. The applicant's returns to Canada were brief and the number of days short was significant. The applicant came to Canada to study and returned to her home abroad as soon as the term had ended. Her absences were not only attributable to her marriage and to her artificial insemination, but also to her personal trips, including visits and vacations in Jordan and in other countries. Finally, the evidence reveals that the connection that the applicant kept with Canada was less substantial than the one that she had with other countries and the evidence filed (bank statements, telephone and electricity bills) was evidence with little probative value for establishing the applicant's residence for the purposes of her citizenship application.
[12] Finally, the respondent alleges that the applicable standard of review in the context of citizenship appeals is that of reasonableness, and concludes that the Citizenship Judge could reasonably make the decision that he made, considering the evidence before him.
Applicable legislation
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5. (1) The Minister shall grant citizenship to any person who
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5.(1) Le ministre attribue la citoyenneté à toute personne qui, à la fois :
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| (c) has been lawfully admitted to Canada for permanent residence, has not ceased since such admission to be a permanent resident pursuant to section 24 of the Immigration Act, and has, within the four years immediately preceding the date of his application, accumulated at least three years of residence in Canada calculated in the following manner:
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c) a été légalement admise au Canada à titre de résident permanent, n'a pas depuis perdu ce titre en application de l'article 24 de la Loi sur l'immigration, 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 :
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| (iii) 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
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(I) un demi-jour pour chaque jour de résidence au Canada avant son admission à titre de résident permanent;
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| (iv) 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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(ii) un jour pour chaque jour de résidence au Canada après son admission à titre de résident permanent.
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Analysis
[13] The only question raised by this appeal is whether the Citizenship Judge erred in determining that the applicant did not meet the residence requirements provided under the Act. More specifically, we must determine whether the Citizenship Judge correctly interpreted the requirement of "residence", taking into account the facts brought to his attention.
[14] To answer that question, the applicable standard of review must first be determined. In the past, certain judges relied on the decision by Lutfy J. (as he then was) in Lam v. Canada (M.C.I.) ([1999] F.C.J. No. 410) to determine that the appropriate standard of review for an appeal of a decision by a Citizenship Judge was that of correctness.
[15] More recently, there appears to have been a consensus on the standard of reasonableness simpliciter (see inter alia the following cases: Chen v. Canada (Minister of Citizenship and Immigration) 2004 FC 1693, [2004] F.C.J. No. 2069; Rasaei v. Canada (Minister of Citizenship and Immigration) 2004 FC 1688, [2004] F.C.J. No. 2051; Gunnarson v. Canada (Minister of Citizenship and Immigration) 2004 FC 1592, [2004] F.C.J. No. 1913; Canada (Minister of Citizenship and Immigration) v. Chen 2004 FC 848, [2004] F.C.J. No. 1040; Canada (Minister of Citizenship and Immigration) v. Fu 2004 FC 60, [2004] F.C.J. No. 88; Canada (Minister of Citizenship and Immigration) v. Chang 2003 FC 1472, [2003] F.C.J. No. 1871; Canada (M.C.I.) v. Mueller, [2005] F.C. 227.
[16] My colleague Tremblay-Lamer J. justified this approach as follows:
In the case at bar, where the court must verify that the Citizenship Judge has applied one of the accepted residency tests to the facts it raises, in my view, a question of mixed fact and law (Director of Investigation and Research v. Southam Inc., [1997] 1 S.C.R. 748). Taking into account that some degree of deference is owed to the specialized knowledge and experience of the Citizenship Judge, I would conclude that the applicable standard of review is that of reasonableness simpliciter.
(Canada (M.C.I.) v. Fu, [2004] F.C.J. No. 88, at paragraph 7).
[17] Considering the pragmatic and functional approach developed by the Supreme Court of Canada, inter alia in Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 and Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, it is my opinion that this standard of review is in fact the most appropriate in the circumstances. Accordingly, it would be appropriate to show deference to the extent that it is established that the judge understood the case law and that he weighed the facts and applied them to the test provided under the Act.
[18] A careful review of this Court's case law indicates that different interpretations have been accepted regarding the interpretation that must be given to the residency requirement found under paragraph 5(1)(c) of the Act. A Citizenship Judge can adopt any of these different interpretations to determine whether the applicant meets the requirements of the Act; insofar as the judge has not made any unreasonable error in applying this interpretation to the evidence that was submitted to him, this Court will not intervene.
[19] Given that the applicant clearly had not resided in Canada for at least three of the four years preceding her application, the Citizenship Judge opted for the more flexible approach developed by Mr. Justice Thurlow in In re Citizenship Act and in re Antonios E. Papadogiorgakis, [1978] 2 F.C. 208. This approach consists in essence in determining whether the applicant had centralized her mode of living in Canada. To answer that question, Madam Justice Reed in Re Koo set out six factors that could be taken into consideration:
(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?
[20] After carefully considering the reasons of the Citizenship Judge, there is no basis for me to believe that he erred in fact or in law in applying the approach that he accepted. Contrary to what the applicant submits, he did not impose too onerous a burden of proof and his findings were entirely supported by the evidence submitted to him.
[21] The applicant cannot fault Decoste J. for considering the period from October 15, 1998, to November 27, 1999, for the purposes of determining the number of days that she was present in Canada. To the extent that the applicant chose to submit her application for citizenship on October 15, 2002, he had no choice but to consider the four preceding years to establish whether she satisfied the minimum period of residence. If the applicant could not legally establish her residence in Canada before November 27, 1999, she need only have deferred the submission of her application for citizenship.
[22] Regardless of the number of days that the applicant in fact resided in Canada during the qualifying period (and on that point, the many discrepancies between the different statements by the applicant could only undermine her credibility), the fact that she was absent from the country for long periods on a regular basis certainly entitled the Citizenship Judge to determine that she had not centralized her mode of living in Canada. There was a considerable difference between the presence required in Canada (three years) and her actual presence.
[23] Furthermore, the Judge observed that between January 8, 1999, and October 15, 2002, the applicant had been absent from Canada nineteen times. Moreover, the applicant's stays between her many absences were brief. Such a situation could certainly lead him to find that she was returning to Canada to visit.
[24] Several of these absences were for vacations, family visits, her marriage and her honeymoon. The case law of this Court clearly indicates that it was a personal choice that would not exempt the applicant from the requirements provided under the Act. As Walsh J. pointed out in Re Leung, [1991] F.C.J. No. 160:
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.
Se also: Alibhal v. Canada (M.C.I.), [2003] F.C.J. No. 248; Sharma v. Canada (M.C.I.), [2003] F.C.J. No. 1763; Shreshta v. Canada (M.C.I.), [2003] F.C.J. No. 778.
[25] Finally, the Citizenship Judge was correct to assign little probative value to the evidence filed by the applicant in support of her application, including the bank statements, telephone bills, medical record and transcripts from the University. This Court had held many times that such evidence is not sufficient to establish that the applicant has centralized her mode of living in Canada : see Re Hui, [1994] F.C.J. No. 238.
[26] Taking into account all of these factors and the applicant's credibility problems regarding the number of days that she was actually present in Canada, the Citizenship Judge was certainly entitled to find that the applicant had not centralized her mode of living in Canada and therefore did not satisfy the requirements provided under paragraph 5(1)(c) of the Act.
[27] I do not doubt that the applicant truly wants to obtain Canadian citizenship. I am however of the opinion that her application was premature and that the Citizenship Judge did not err in denying her application, considering the evidence that was before him. She is however entitled to submit a new application in due course.
"Yves de Montigny"
Judge
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1210-04
STYLE OF CAUSE: NADINE LAMA v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 8, 2005
REASONS FOR ORDER: de Montigny J.
DATE OF ORDER: April 7, 2005
APPEARANCES:
Annie Kenane FOR THE APPLICANT
Alexandre Tavadian FOR THE RESPONDENT
SOLICITORS OF RECORD:
Étude Kenane
Montréal, Quebec FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT
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