Shanechi v. Canada (Minister of Citizenship and Immigration), 2004 FC 1018

                                                                                                                      Date: 20040721

                                                                                                                 Docket: T-1720-03

                                                                                                          Citation: 2004 FC 1018

Ottawa, Ontario, this 21^st day of July, 2004

PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER

BETWEEN:

                                MOHAMMAD HASSAN MODIR SHANECHI

                                                                                                                                Applicant

                                                                   - and -

                     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                            Respondent

                                      REASONS FOR ORDER AND ORDER

SNIDER J.

[1]                Mr. Mohammad Hassan Modir Shanechi, the Appellant, wishes to become a citizen of Canada. With his family, he arrived in Canada as a landed immigrant on July 19, 1999 and applied for citizenship on September 20, 2002. Since his arrival in Canada, the Appellant's absences from Canada were as follows:

[2]         Thus, the Appellant fell short of the 1095 days of residence requirement set out in section 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29 (the _Act_) by 569 days.

[3]         By decision dated July 21, 2003, a Citizenship Judge refused his application for citizenship. The Citizenship Judge concluded that the Appellant has not established and maintained his presence in Canada. He further declined to exercise his discretion under subsections 5(3) and (4) of the Act. This is an appeal of that decision.

Issues

[4]         The Appellant raises a number of issues. However, the dispositive issue is the following:

1.          Did the Citizenship Judge err by finding that the Applicant had not fulfilled the residency requirements under the Act?

Analysis

[5]         It is well-established in this Court's jurisprudence that the applicable standard of review for the residency requirement issue raised in this appeal is correctness (Lam v. Canada (Minister of Citizenship and Immigration),[1999] F.C.J. No. 410 (T.D.) (QL) at para. 15, followed in Sharma v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1763 (F.C.) (QL) at para. 31 and Linde v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1085 (T.D.) (QL)). Further, _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_ (Lam, supra at para. 15).

[6]         In determining whether the Appellant had satisfied the residence requirement set out in section 5(1)(c) of the Act, the Citizenship Judge purported to apply the criteria set out by Justice Reed in Re Koo, [1993] 1 F.C. 286.

[7]         For the reasons that follow, I have concluded that the Citizenship Judge made four significant errors that demonstrate that, in this particular case, he did not have an understanding of the test from Re Koo.

1.         Nature of employment in the United States

[8]         The fifth question of the Re Koo analysis and the conclusion of the Citizenship Judge are as follows:

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?

You have a permanent position teaching at the New Mexico Institute of Technology.

[9]         The Appellant has been working in the Unites States. However, the evidence is that the position that the Appellant commenced in August 2001 is merely temporary and not permanent. The employment has consisted of two successive contracts with the New Mexico Institute of Mining and Technology. The copy of his contract of employment indicates clearly that his position as an Associate Professor is for a nine-month term only. Thus, the Judge's conclusion that his employment in the United States was permanent is incorrect. This is not a case where I might have come to a different conclusion upon my review of the evidence; the facts are clear that the Appellant did not hold a permanent position at the New Mexico Institute.

[10]       The Respondent points out that this Court and the Federal Court of Appeal have held repeatedly that the decision to work outside of Canada, regardless of the reason for same, remains a personal choice that cannot trump the residency requirements to obtain Canadian citizenship (Chehade (Re), [1994] F.C.J. No. 1461 (T.D.) (QL); Linde, supra at para. 24). The Respondent submits that it was the Appellant's choice to seek and obtain employment outside Canada. While the decision of whether to take a position is always, to some degree, a personal choice, I am satisfied that the Appellant in this case would not have chosen to assume the tenuous position of a contract professor without any security of tenure had he been successful in obtaining an offer in his field of expertise from a Canadian University. Further, the evidence-persuasive, in my view-before the Citizenship Judge was that the Appellant was hoping that, with this position, he would gain North American experience that would lead to a position in Canada.

[11]       The evidence also is that the Appellant has continued to seek employment in Canada. Such efforts are inconsistent with a permanent position in New Mexico.

[12]       Finally, I note that the employment was neither in his country of origin (Iran) nor a position that the Appellant held prior to his arrival in Canada. Each of these factors support the conclusion that the employment in the Unites States was temporary in nature and not intended to be long-term. It appears to me that the Appellant sought out and obtained the foreign employment only with reluctance and, to a significant degree, as a temporary solution.

[13]       The cases referred to by the Respondent can be distinguished from the situation before me. Unlike in Re Chehade, supra, the Appellant in this case made considerable effort to secure employment in Canada. In Linde, supra, the Appellant's choice to follow her husband to work in Romania rather than choosing to seek work in Canada; here, there is no such evidence.

[14]       The Respondent also referred me to the decision of Justice O'Keefe in Sharma, supra. Once again, the case is readily distinguishable. In that case, the Appellant, having initially spent only 13 days in Canada and having renewed his contract for employment out of Canada _a number of times_, had never established himself in Canada. The case is distinguishable on its facts.

[15]       Thus, with respect to this factor of the Re Koo test, the Citizenship Judge erred.

2.          Pattern of Physical Presence in Canada

[16]       The third question of the Re Koo test and the Citizenship Judge's response are as follows:

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

The pattern indicates occasional (emphasis mine) visits to Canada as stated in 13b of your letter submitted with your Residence Questionnaire.

[17]       The Appellant's response to question 13(b) of the Residence Questionnaire was that:

During the first few months I would return to Canada occasionally. But after 11/9/2001, because of the security measures, every time I would leave the US, I would have to reapply for a new visa to get back. To issue me a visa, the US Consulate in Toronto had to do a security check through Washington and it usually takes between two to three months. I would [lose] my job if I would come. So I have been sort of imprisoned in the US.

[18]       In his analysis of factor 3, the Citizenship Judge makes no reference to the Appellant's explanation for his lack of physical presence in Canada after September 11, 2001. Later in the decision, the Judge makes a dismissive reference to the explanation when he states that:

I understand the comments on your situation in the United States after September 11, 2001 however, your absences started long before that.

[19]       In my view, the Citizenship Judge, contrary to his statement, did not understand the situation in which the Appellant was placed, for reasons beyond his control, after September 11. While there were absences prior to September 11, they were all explicable and did not have any bearing on the period after that date. The Citizenship Judge failed to consider the impact of the revised visa requirements on the Appellant's ability to continue his contract of employment if he had returned to Canada. This failure constitutes an error.

[20]       The purpose of the test in Re Koo is to allow citizenship judges to take into account special circumstances that apply to applicants for citizenship. In not considering the explanation of the Appellant for his lack of visits after September 11, 2001, the Citizenship Judge was not properly utilizing this aspect of the test in Re Koo.

3.          Quality of Connection with Canada

[21]       The final area of assessment in the Re Koo analysis is the question of the _quality_ of an applicant's connection with Canada. The applicable question for the analysis of this sixth factor and the Citizenship Judge's conclusion are as follows:

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

Your quality of connection to Canada is based on the fact that your wife and children are in Canada. However, due to your almost continuing absence from Canada since December 05, 2000 to date, because of your employment in the United States, you centralized your mode of living in the United States.The quality of your connection to the United States is very substantial and your relationship to Canada very tenuous and ambivalent.        

[22]       The question requires the Citizenship Judge to undertake a comparison to determine whether the connection with Canada is more substantial than that with the United States. The Judge's analysis of this factor takes into account only the Appellant's employment in the United States. Other than the statement that the Appellant's family is in Canada, the Judge refers to none of the evidence that would allow him to make a comparison.

[23]       I have reviewed the record and, other than the temporary employment in the United States and a rental apartment in New Mexico, the Appellant has no connection with the United States. On the other hand, the Appellant has a wife and children in Canada with whom he remains close in spite of the difficulties of this long-distance relationship. He holds all of the usual indicia of residence. Further, he pays Canadian income tax. Finally, he has continued to seek employment in Canada. None of this was used for the comparison required in a proper assessment of this factor.

[24]       The failure to refer to the relevant evidence in evaluating the quality of the Appellant's connection with Canada is, in my view, another error made by the Citizenship Judge.

4.          Motivation

[25]       Having completed his analysis of the Re Koo factors, the Citizenship Judge continued his decision with a number of miscellaneous comments. In one of the paragraphs, he referred to a comment made by the Appellant in his questionnaire.

Your answer to question 13 of the Residence Questionnaire and in the letter attached to it, concluding _comments_ indicate that at the present you are seeking citizenship mostly as a convenience of having a Canadian passport which would allow you to occasionally (emphasis mine) visit your family in Canada without the inconvenience of applying for a return US visa each time. Our passport is a consequence of having Canadian citizenship not a reason for it. Canadian citizenship is not awarded as a _flag of convenience_. You contracted employment in the United States on your own will, with the full knowledge that it will require your almost permanent and lengthy absence from Canada. Absences for purely personal reasons and of a voluntary nature can not be counted as periods of residence under the Act.

[26]       The comment upon which this part of the decision was based was included by the Appellant under the final _Comments_ section of the Application Questionnaire where he stated:

When I get my Canadian citizenship, I would not need to apply for a re-entry to go back to the US. This would let me occasionally visit my family, who are living in Toronto. It would also make it possible for me to come to Canada to interview for jobs, should one of the places I am applying ask me for a job interview.

[27]       I have two problems with this part of the Judge's decision. The first point is that it is a misrepresentation of the Appellant's submissions on his application. The Citizenship Judge has interpreted this concluding comment as the Appellant's primary motivation for seeking citizenship. Taken in the context of his application in its entirety, these concluding comments were entirely understandable as the Appellant's statement of the positive consequences of obtaining citizenship. They can not and should not be read as his motivation in bringing this application. Had the heading of this section of the questionnaire form been entitled _Why are you applying for citizenship?_ or _Primary reason for seeking citizenship_, the Citizenship Judge may have been correct in a conclusion that the Appellant was seeking citizenship _mostly as a convenience of having a Canadian passport_. But, it is readily apparent from the record that the Appellant was stating a consequence and not his sole motivation for gaining Canadian citizenship.

[28]       The second concern that I have is that the Re Koo test makes no reference to motivation as a factor in assessing whether an applicant has centralized his or her mode of existence in Canada. Thus, in taking into account this irrelevant consideration, the Citizenship Judge did not properly apply the law and erred.

Conclusion

[29]       For these reasons, the appeal will be allowed. In respect of the remedy in a citizenship appeal such as this, I note the comments of Justice Lemieux in Wu v. Canada (Minister of Citizenship and Immigration), 2003 FCT 435 at para. 21 where he stated that:

[21]          As a remedy, the applicant asks that I make the decision which the Citizenship Judge should have made-approve her application. I decline to do this on the reasoning of Justice Reed's decision in Ma v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 288, where she wrote at paragraph 10:

par. 10 I am not persuaded that this is my only recourse, nor that I am without authority in a case such as the present to quash the decision below and refer the application back for rehearing. Inherent in an appeal process is the authority to refer the matter back for rehearing. Indeed, even under the old de novo hearing procedure, referral back for rehearing was ordered where a citizenship judge failed to consider some matter that should have been considered: see In the Matter of Moa-Song Chang, (T-1183-97, February 5, 1998).

[22]          For the foregoing reasons, this appeal is allowed and the matter is remitted back for rehearing by a different Citizenship Judge.

[30]       The appropriate remedy in this case is the same as that used by Justice Lemieux. The appeal will be allowed and the matter remitted back to a different Citizenship Judge for rehearing.

                                                                 ORDER

THIS COURT ORDERS THAT:

1.          The appeal is allowed;

2.         The decision of the Citizenship Judge is quashed; and,

3.          The matter is remitted back for rehearing by a different citizenship judge.

      _Judith A. Snider_

            Judge

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           T-1720-03

STYLE OF CAUSE:             Mohammad Hassan Modir Shanechi

v. the Minister of Citizenship and Immigration

PLACE OF HEARING:                    Toronto, Ontario

DATE OF HEARING:                       June 30, 2004

REASONS FOR ORDER

AND ORDER:                                    July 21, 2004

APPEARANCES:

Ms. Geraldine MacDonald                                                                FOR APPLICANT

Ms. Amina Riaz                                                                               FOR RESPONDENT

SOLICITORS OF RECORD:

Ms. Geraldine MacDonald                                                                FOR APPLICANT

Barrister & Solicitor

Toronto, Ontario                                                        

Mr. Morris Rosenberg                                                               FOR RESPONDENT

Deputy Attorney General of Canada