Date: 20040315
Docket: T-1539-03
Citation: 2004 FC 388
Toronto, Ontario, March 15th, 2004
Present: The Honourable Mr. Justice von Finckenstein
BETWEEN:
BORISSOTCHEV, ALEXANDRE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
(Delivered orally from the bench and subsequently written for precision and clarification)
[1] This is an appeal of the decision of Citizenship Judge Rochelle Burns, dated June 25th, 2003, not to approve the Applicant's application for citizenship.
[2] The Applicant is a 53 year-old citizen of Russia who came to Canada as a visitor in 1996 and obtained permanent resident status on March 10th, 1997.
[3] He applied for Canadian Citizenship in April, 2003 and his hearing before Judge Burns was held on May 7th, 2003. In Reasons dated June 25th, 2003, Judge Burns concluded that the Applicant had not established a centralized mode of living in Canada in the four years preceding his application for citizenship. Specifically, it was found that since he had obtained permanent residence status, the Applicant had been continuously absent from Canada, had maintained extensive and overwhelming connections to Russia and had failed to actively make Canada his permanent residence.
[4] Both parties agreed that the standard of review to be applied was one close to correctness as established by Lufty C.J. in Lam v. Canada (M.C.I.), [1991] F.C.J. No. 410. In the more recent decision Canada (M.C.I.) v. Chang, [2003] F.C.J. No.1871, Mackay J. stated at paragraph 7:
In my view, in light of the decision of the Supreme Court of Canada in Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] S.C.J. No. 18, 2003 SCC 19">2003 SCC 19 the appropriate standard of review in this case is reasonableness simplicitir, but without significant deference to the decision of the Citizenship Judge. That standard arises from the assessment of the circumstances including the provision in the Act for an appeal from the decision of a Citizenship Judge, the nature of the issue to be resolved in a question of mixed fact and law in which the application of the law is more important than the determination of facts, and the comparative expertise of this Court, when compared with that of the Citizenship Judge and in resolving issues where the emphasis is on the low.
[5] I find the reasoning of Mackay persuasive and will accordingly apply the reasonableness simplicitir standard.
[6] In reaching her decision, the citizenship judge applied the test set out in Re: Koo, [1993] 1 F.C. 286 and asked the 6 questions posed therein, namely:
(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 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?
[7] This test was also applied in the companion file of the Applicant's daughter, T 1538-03 (Borissotcheva v. M.C.I.). However, here a contrary result was reached. In this case, the answers reasonably support the Citizenship Judge's conclusion, namely that the centralized mode of the Applicant's existence is not in Canada but rather in Russia. After all, he conducts practically all of his business in Russia and he looks after his ailing mother there. He is 486 days short in his residency requirement. His only active involvement in Canadian life is doing some hunting and fishing here, all other indicia are passive. Some of these indicia, such as Canadian Visa cards, will facilitate his business worldwide and are no indication of any particular connection to Canada.
[8] Consequently, it was not at all unreasonable for the Citizenship Judge to find that the Applicant had not met the requirements of the Citizenship Act.
[9] Accordingly this appeal must fail.
ORDER
THIS COURT ORDERS that this appeal be dismissed.
"K. von Finckenstein"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1539-03
STYLE OF CAUSE: BORISSOTCHEV, ALEXANDRE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MARCH 15, 2004
REASONS FOR ORDER
AND ORDER BY : von FINCKENSTEIN J.
DATED: MARCH 15, 2004
APPEARANCES:
Mr. Stephen W. Green
FOR THE APPLICANT
Ms. Mary Matthews
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Green & Spiegel
Barristers & Solicitors
Toronto, Ontario FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT
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