Benjamin v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1301

Date: 20011128

Docket: T-2092-00

OTTAWA, Ontario, November 28, 2001

BEFORE: Rouleau J.

BETWEEN:

                                                                Benjamin BADJECK

                                                                                                                                                          Plaintiff

AND:

                                                  THE MINISTER OF CITIZENSHIP

                                                              AND IMMIGRATION

                                                                                   

                                                                                                                                                      Defendant

                                                                            ORDER

[1]        The application for judicial review is allowed.

Certified true translation

Suzanne M. Gauthier, LL.L. Trad. a.

Date: 20011128

Docket: T-2092-00

Neutral citation: 2001 FCT 1301

BETWEEN:

                                                                Benjamin BADJECK

                                                                                                                                                          Plaintiff

AND:

                                                  THE MINISTER OF CITIZENSHIP

                                                              AND IMMIGRATION

                                                                                   

                                                                                                                                                      Defendant

                                                              REASONS FOR ODER

ROULEAU J.

[1]                 This is an appeal brought pursuant to s. 14(5) of the Citizenship Act (R.S.C. 1985, c. C-29 - "the Act") and its regulations from a decision by the citizenship judge Jeanine C. Beaubien on September 12, 2000, denying the plaintiff's application for Canadian citizenship on the ground that he did not meet the residence requirements laid down in s. 5(1)(c) of the Act, in particular that the plaintiff had not established and maintained a residence in Canada because he had failed to show he had both in intention and in fact centralized his mode of living in Canada.

[2]                 The plaintiff was born at Ekoum in Cameroon on November 1, 1945. Since June 25, 1977 he has been married to Francine Décarie, a Canadian citizen by birth. Two children were born of their marriage, Louis Gervais, born in Yaoundé on September 21, 1979, and Marie Caroline, born in Yaoundé on January 27, 1981, both Canadian citizens by birth.

[3]                 From 1970 to 1976 the plaintiff was a student at the University of Montréal, pursuing studies for a doctorate in economics, after obtaining a Master's degree in agriculture in 1970 from the University of Cornell in New York State, in the U.S. From September 1976 to September 1977 the plaintiff worked for the Canadian Economic Council in Ottawa.

[4]                 In 1973 the plaintiff for the first time obtained permanent resident status in Canada and lost it for living permanently abroad with his wife from 1979 to 1993. Thus, from January 1979 to June 30, 1993 the plaintiff lived with his wife and the children of their marriage in Africa and Italy, performing various duties as a counsellor in organizations belonging to or associated with the United Nations.

[5]                 In 1990 the plaintiff and his wife decided to settle in Canada with the children. In order to do this the plaintiff filed an application with the Canadian Embassy in Rome for landing as an independent immigrant, and obtained an immigrant visa after clearly indicating to the Immigration Canada authorities the nature of his work and the occupation in which he was engaged, and in which he was continuing to work for various United Nations bodies around the world, which required him to be absent from Canada for long periods.

[6]                 On or about June 30, 1993 the plaintiff and his family settled in Canada in his capacity as a permanent resident of Canada.

[7]                 Since moving to Canada the plaintiff has continued his work as a counsellor for United Nations organizations beginning in December 1994, when he worked for three years as a counsellor in Abuja, Nigeria for the United Nations Food and Agriculture Organization.

[8]                 From January 1998 to January 16, 1999 the plaintiff worked for the FAO in Tanzania and since the end of his contract with the FAO in Tanzania he has continued to act for the FAO and various other agencies associated with the United Nations as a consultant.

[9]                 Throughout this period from 1993 to February 1999 the plaintiff acted as a genuine Canadian resident, filing his tax returns in Canada and paying taxes here, and having all his ties here: his spouse, children, property, banking institutions, friends and relations.

[10]            Throughout the same period the plaintiff obtained returning permits from Immigration Canada when he had to be absent for a period of over six months in the course of his work, the Immigration Canada authorities being satisfied about the permanent ties which he had with Canada.

[11]            Since 1993 the plaintiff's children have studied in educational institutions located in Montréal. Marie Caroline has attended McGill University and is currently in the third year in the Department of the Environment, having completed her B.A. at the Collège Marie de France in Montréal. Louis Gervais is in the first year of political science at Concordia University, after completing college studies at the Collège Vanier and secondary studies at the Louis Riel secondary school.

[12]            In 1993, the plaintiff supported his wife in her efforts with the Quebec Bar for re-admission to the Ordre du Barreau, and from 1994 to 1997 the plaintiff financially supported his wife in her graduate training at the École des Hautes Études Commerciales (HEC) for a post-graduate diploma in management.

[13]            In June 2000 the plaintiff's wife opened an office in private practice and the plaintiff was approved as surety by her financial institution for her credit line which she obtained to conduct the operations of her office.

[14]            From 1993 to date, all the fees and income from professional activities which the plaintiff has carried on for organizations associated with the United Nations have been deposited in his bank account in Montréal.

[15]            All the plaintiff's property and assets are in Canada: since 1985, the plaintiff has been co-owner with his wife of a duplex located in Chambly and on March 30, 1994 the plaintiff purchased a duplex which they renovated and where they have been living since April 1994.

[16]            In the plaintiff's work environment and in the various international agencies where he has worked he is regarded and viewed as a Canadian, in particular because of his university training acquired in Canada, his marriage to Francine Décarie, his Canadian children attending Canadian universities and all his other ties with life in Canada.

[17]            On or about February 16, 1999 the plaintiff filed his application for Canadian citizenship with the Citizenship Court, Citizenship and Immigration Canada.

[18]            On or about September 12, 2000 the citizenship judge, after reviewing the plaintiff's application and meeting with him in an interview, denied his application on the ground that he had not established and maintained a residence in Canada and had failed to show that he had both in intention and in fact centralized his mode of existence in Canada.

[19]            All the above facts were drawn to the attention of the citizenship judge, as appears more fully from the imposing documentary evidence requested by the citizenship judge and included in the plaintiff's record, and nothing in all this appears to be in dispute.

[20]            In her decision of September 12, 2000 the citizenship judge concluded that the plaintiff had not met the conditions regarding his residence in Canada as he had failed to comply with s. 5(1)(c) of the Act, in that as the plaintiff had been absent from Canada for a period totalling 1,419 days during the period from June 30, 1993 to February 16, 1999, he had not established that he had resided in Canada for at least three years of the four years immediately preceding his citizenship application. She denied the application as follows:

[TRANSLATION]

ACCORDING TO THE DOCUMENTATION CONTAINED IN YOUR FILE, YOU ARRIVED IN CANADA ON JUNE 30, 1993. YOU OBTAINED LANDING ON JUNE 30, 1993. AT THE TIME YOUR APPLICATION WAS FILED, NAMELY FEBRUARY 16, 1999, YOUR ABSENCES TOTALLED 1,419 DAYS. IN THESE CIRCUMSTANCES, IN ORDER TO MEET THE RESIDENCE REQUIREMENT YOU HAD TO PERSUADE ME THAT YOUR ABSENCES FROM CANADA COULD BE REGARDED AS PERIODS OF RESIDENCE IN CANADA.

THE FEDERAL COURT PRECEDENTS REQUIRE THAT, IN ORDER TO ESTABLISH RESIDENCE, THE INDIVIDUAL MUST SHOW IN INTENTION AND IN FACT THAT HE HAS CENTRALIZED HIS MODE OF EXISTENCE IN CANADA. IF RESIDENCE IS ESTABLISHED IT IS NOT AFFECTED BY ABSENCES FROM CANADA SO LONG AS IT IS SHOWN THAT THE INDIVIDUAL HAS LEFT CANADA FOR A PURELY TEMPORARY PURPOSE AND HAS ALWAYS RETAINED SOME FORM OF ACTUAL AND TANGIBLE RESIDENCE.

I HAVE ACCORDINGLY EXAMINED YOUR CASE CAREFULLY TO DETERMINE WHETHER YOU HAD ESTABLISHED RESIDENCE IN CANADA BEFORE YOUR ABSENCES SO THAT THE LATTER COULD BE REGARDED AS A PERIOD OF RESIDENCE, AND WHETHER DURING THOSE ABSENCES YOU MAINTAINED SUFFICIENT TIES WITH CANADA. THE FACTS OBTAINED HAVE LED ME TO CONCLUDE THAT YOU HAVE NOT ESTABLISHED OR MAINTAINED RESIDENCE IN CANADA AND CONSEQUENTLY I CONSIDER THAT YOU DO NOT MEET THE RESIDENCE REQUIREMENT.

[21]            That is the decision at issue in the case at bar.

[22]            Further, at p. 30 of the plaintiff's record, consisting of handwritten notes by the citizenship judge following the May 9, 2000 interview with the plaintiff, we find the following notations of fact and law made by the citizenship judge, namely that:

(A) the plaintiff came to Canada in 1970 to study for a doctorate in economics;

(B) during the plaintiff's 1,460 days of absence his family remained in Canada and his visits to his family were, according to the plaintiff, made for approximately 15 days a year; on two occasions, his wife and two children visited him in Nigeria and Tanzania;

(C) the plaintiff is well qualified in food and agriculture economics and undoubtedly rendered great services in the course of the assignments he was given by the United Nations in developing countries such as Nigeria and Tanzania;

(D) the plaintiff has extensive knowledge of the history of Canada;

(E) he speaks the two official languages of Canada;

(F) he meets nearly all the conditions required for approval of his citizenship application;

(G) in the questionnaire the plaintiff said that on his return to Canada he created his own business specializing in international agricultural development, economics and management;

(H) the plaintiff apparently sought to justify his absences from Canada by arguing that the United Nations organization is a body which receives large subsidies from Canada, and by [TRANSLATION] "deduction", that he was working for an organization recognized by Canada: according to the citizenship judge, [TRANSLATION] "Unfortunately for this argument, the business is not a Canadian one";

(I) [TRANSLATION] "Without wishing to dispute the value of the plaintiff's work and his many investments", the citizenship judge noted that she could not reconcile and justify the plaintiff's absences of 1,460 days from Canada;

(J) for the citizenship judge, [TRANSLATION] "the test of physical presence in Canada is the fundamental test for determining whether a plaintiff meets the requirements of s. 5(1)(c) of the Act".

[23]            The main question raised by the appeal at bar is whether, based on the facts and evidence before the citizenship judge supporting the plaintiff's citizenship application, she made an error of law when she concluded that the plaintiff did not meet the residence requirements laid down in s. 5(1)(c) of the Act, in particular that he had not established or maintained a residence in Canada and had not centralized his mode of existence in Canada. The case at bar also raises the question of whether the citizenship judge made a reviewable error by failing or neglecting to consider and to indicate the nature of the ties existing between the plaintiff and Canada and the factual ties binding him to life in Canada.

[24]            To begin with, the plaintiff submitted that the citizenship judge did not apply the right test when she said that the test of physical presence in Canada is the basic test in determining whether the requirements of s. 5(1)(c) of the Act have been met. In the plaintiff's submission, the citizenship judge adopted a limiting interpretation of the provision which is contrary to the present state of Canadian law in this area.

[25]            The plaintiff argued that the fundamental test recognized by the decisions of this Court in assessing and applying s. 5(1)(c) of the Act is to determine whether, for the citizenship candidate, Canada is the country where he has centralized his mode of existence: Koo v. Minister of Citizenship and Immigration, [1993] 1 F.C. 286 (F.C.). That case held that in assessing and applying this test used by the courts, the citizenship judge must inter alia seek to determine the five following points: (a) the place where the candidate's immediate and extended family reside; (b) whether the time spent in Canada indicated returning home, as opposed to a mere visit; (c) the reason for the candidate's physical absences; (d) the quality of the candidate's connection with Canada, especially if it is greater than that existing with another country; (e) whether the candidate's ties to Canada indicate that his or her residence in Canada takes priority over other countries associated with the candidate.

[26]            The plaintiff submitted that the citizenship judge erred in fact and in law by failing or neglecting to consider the aforementioned points of law and making the following findings of fact:

(A) on June 30, 1993 the plaintiff and his family settled in Canada;

(B) since the plaintiff's family settled in Canada, that is since June 30, 1993, the plaintiff's immediate family has continuously and permanently resided in Canada;

(C) the plaintiff has no assets or residence anywhere but in Canada;

(D) when he is absent from Canada for purposes of his work for the United Nations or affiliated bodies, the plaintiff does not have and retains no connection to the countries where he is working for the United Nations;

(E) when the plaintiff returns to Canada, he returns to his home country in which he has a house that he shares with his family, his assets, his bank accounts, where he pays taxes, where his wife works and his children study, and where the income from his employment is invested and spent for his family's well-being;

(F) the plaintiff has no ties abroad like those mentioned above which he has in Canada, and continues to have: the fact that his residence takes priority as compared to other countries where he has lived solely for purposes of his work;

(G) his physical absences are due only to carrying on his work for the United Nations which he has done since 1979.

[27]            The plaintiff submitted that the foregoing points omitted by the citizenship judge establish that he has settled in Canada both mentally and physically by centralizing his lifestyle here and by keeping the most important aspects of his life here. He added that his physical absences from Canada were entirely due to engaging in his occupation with the United Nations on account of the expertise which both the United Nations and Canada recognize that he has.

[28]            The plaintiff also relied on the comments made by Dubé J. in Yen v. Minister of Citizenship and Immigration, [1997] F.C.J. No. 1340 (QL) (F.C.), which he submitted were extremely important in assessing the relevant facts of the case at bar. In that case Dubé J. adopted the rule laid down by the courts that full-time physical presence in Canada is not an essential condition of residence: Re Papadogiorgakis, [1978] 2 F.C. 208 (F.C.). He noted that a citizenship candidate who clearly and finally elects domicile in Canada with the clear intention of putting down permanent roots here should not be deprived of citizenship simply because he has to earn his living abroad.

[29]            The plaintiff further submitted that, contrary to what was found by the citizenship judge, the residence condition mentioned in s. 5(1)(c) of the Act involves questions more fundamental than simply counting the days spent in Canada. Thus, the nature of the plaintiff's attachment and loyalty to Canada demonstrate and establish a real attachment to Canada: Lam v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 410 (QL) (F.C.). There is no attachment similar to that which he has with Canada to any other country or any significant link to any country other than Canada: Canada (Minister of Citizenship and Immigration) v. Yang, [1999] F.C.J. No. 423 (QL) (F.C.).

[30]            The plaintiff respectfully submitted that, for the foregoing reasons, the citizenship judge made an error when she concluded that the plaintiff did not meet the "residence" requirements of s. 5(1)(c) of the Act.

[31]            In the defendant's submission, s. 5(1)(c) of the Act provides that persons wishing to obtain Canadian citizenship must reside in Canada at least 1,095 days during the four years preceding their citizenship application. The defendant noted that over the last 20 years four schools of judicial opinion have emerged in this Court regarding interpretation of the "residence" concept used in s. 5(1)(c) of the Act.

[32]            First, there is the interpretation developed by Muldoon J., according to which the residence concept should be interpreted as physical residence in Canada: Re Harry (1998), 144 F.T.R. 141. Second, there is the interpretation put forward by Thurlow A.C.J. in Papadogiorgakis, supra, according to which the residence concept should not be limited to physical presence but should be assessed in light of the quality of the attachment to Canada by the person seeking citizenship, that is, whether the latter has established and maintained a lifestyle in Canada. Third, there is the interpretation developed by Reed J. in Koo, supra, according to which a person's residence is the place where he or she has centralized his mode of existence. Finally, there is the interpretation developed by Pinard J., according to which unduly long absences during the period specified in the Act will make it impossible to meet the requirements of s. 5(1)(c) of the Act: Re Bernal (November 4, 1980, Doc. No. T-781-98 (F.C.)).

[33]            The defendant submitted that it appeared from the instant record that the citizenship judge was quite familiar with these various schools of judicial opinion when she made her decision. She specifically found that the plaintiff had not established his residence before his many lengthy absences from Canada or maintained his residence during his absences. In the defendant's submission, this finding by the judge is not unreasonable in the circumstances since the record showed that:

(A) the plaintiff had worked outside Canada for over 20 years;

(B) although the plaintiff became a permanent resident in 1973 for the first time, he lost his status because of his long absences from Canada;

(C) although the plaintiff obtained permanent resident status in Canada again in 1993 when his family came back to settle in the country, he continued working abroad and returning to Canada only for short periods of time to visit his family.

[34]            The defendant submitted that when these facts are analyzed in light of the six factors listed by Reed J. in Koo, it is apparent that the plaintiff does not meet all these factors. In fact, the plaintiff was physically present in Canada for less than 100 days in the four-year period (1,461 days of absence) immediately preceding his citizenship application. In the defendant's submission, this is a considerable period of absence when the criteria laid down in s. 5(1)(c) of the Act are taken into account. Further, the plaintiff's physical absences are not due to any obviously temporary situation, since the record indicated that the plaintiff had been working abroad full-time for over 20 years.

[35]            Consequently, the defendant argued, in view of the substantial number of absences from Canada by the plaintiff in the case at bar, the citizenship judge was right to conclude that the plaintiff had not met the residence requirement laid down in s. 5(1)(c) of the Act.

[36]            The defendant maintained that there was no doubt that the plaintiff will make an excellent Canadian citizen. When he has completed the applicable residence requirements, he can certainly make another application for Canadian citizenship: Fong v. Minister of Citizenship and Immigration (May 26, 2000), Doc. No. T-1049-99.

[37]            Accordingly, the defendant respectfully submitted that the evidence contained in the instant record established that the plaintiff had not met the residence requirement of s. 5(1)(c) of the Act and that the citizenship judge therefore did not err in fact and in law in denying the plaintiff's citizenship application.

[38]            It should be noted at the outset that the applicable standard of review in citizenship appeals has been determined by the courts to be correctness: Lam v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 177, at para. 33; Canada (Minister of Citizenship and Immigration) v. Hung, [1998] F.C.J. No. 1927, at para. 12 (QL) (F.C.). Although findings of fact by citizenship judges must be treated with deference, the citizenship judge's decision in the case at bar may be quashed if it completely disregards important evidence without explanation: Hung, supra.

[39]            A person who applies for citizenship under s. 5(1)(c) of the Act must have resided in Canada for at least three years in the four years preceding the date of his or her application. This Court has several times noted that judicial decisions with radically divergent interpretations have seriously complicated application of the Act. The assessment of the case law on the residence requirement by the citizenship judge in the case at bar is hardly an example of precision and eloquence, and the way in which she referred to the points made by various judicial schools of opinion could well lead to confusion. In Lam, supra, at para. 33, Lutfy J. noted that a citizenship judge's decision should not be set aside simply because one party to the dispute does not agree with the test applied to determine residence. This is what Lutfy J. wrote in this regard:

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.

[40]            The citizenship judge in the case at bar appears to have decided to use the residence test set out in Papadogiorgakis and Koo, supra, namely the fact that the person must have settled mentally and physically in Canada, or retained or centralized his usual mode of existence there. Some decisions have held that it is not necessary for a person applying for Canadian citizenship to be physically present in Canada throughout the 1,095 days when special and exceptional circumstances exist, provided the plaintiff shows that he has established and maintained a pied à terre in Canada: Laï, supra. The reasons of Muldoon J. given in the cases cited by the defendant cannot be regarded as finally establishing the way that residence should be defined. However, the plaintiff must objectively show that he has established his own residence in Canada if he is later to be deemed a resident of the country during his absences from Canada since 1993: Papadogiorgakis, supra at 214. Mere intention to establish a residence will not suffice. In the case at bar, the evidence was that before leaving the country in June 1993 to go on missions abroad on behalf of the United Nations, the plaintiff lived in Canada for a little over one year. During that time and subsequently, the plaintiff acted as a genuine Canadian resident. Thus, in Somnath, supra a period of three months was found sufficient as a basis for a conclusion that the person had established his residence in Canada, in view of the important ties which the appellant had formed with Canada. I am therefore reluctant to conclude that such a conclusion in the case at bar could be regarded as incorrect.

[41]            After a candidate for citizenship has established his or her residence in Canada, which in my opinion the plaintiff in the case at bar has shown, the question is whether he or she has maintained a centralized mode of existence in Canada. In this regard, the analysis of residence may be more flexible with regard to temporary absences, since the plaintiff will have met the initial basic condition, namely establishing his residence in Canada.

[42]            In the case at bar, during the relevant four-year period preceding February 16, 1999, the date of his citizenship application, the plaintiff was physically present in Canada for less than 100 days. Although he did not have the required number of days of residence, the plaintiff made a credible statement of his intent to elect domicile in Canada and of irrefutable indications, which constitute evidence that he established and maintained his usual mode of existence in Canada. In my opinion, the citizenship judge adopted a very limiting approach in her interpretation of the residence requirement and made an error by placing undue emphasis on the number of the plaintiff's prolonged and non-temporary absences from Canada, and not taking into account all the relevant evidence in the record in her analysis dealing with residence. In my view, consideration of the factors listed by Reed J. in Koo, supra clearly shows that in the case at bar the plaintiff clearly established his home in Canada with the obvious intention of keeping his permanent residence here.

[43]            In my view, in extreme cases of prolonged absence as in the case at bar, the plaintiff will have to present undisputed evidence that the justification for his absences is consistent with his intention to elect and maintain a domicile in Canada and return here, and that his prolonged absences did not result from adopting a country other than Canada as his country of residence. In the case at bar the defendant was not able to prove that the plaintiff had a significant connection with any country other than Canada. In my opinion, a citizenship applicant who obviously and finally elects domicile in Canada with the clear and definite intention of having permanent roots in this country, like the plaintiff in the case at bar, should not be deprived of citizenship simply because he must earn his living and that of his family by working abroad.

[44]            Although in some decisions it has been held that persons applying for citizenship are required to strictly observe the letter of s. 5(1)(c), even if absences are of a special, necessary and exceptional nature, it has been held in a comparable, if not larger, number of decisions that in certain cases, by reference to fewer tests and ties than in Mr. Badjeck's case, citizenship should be awarded if the quality of the ties to Canada is significant. In my opinion, the decision of the citizenship judge in the case at bar is wrong and the Court's intervention is accordingly justified.

[45]            For the foregoing reasons, the application for judicial review is allowed.

OTTAWA, Ontario

November 28, 2001

Certified true translation

Suzanne M. Gauthier, LL.L. Trad. a.

                                                       FEDERAL COURT OF CANADA

                                                                    TRIAL DIVISION

                                NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT No.:                              T-2092-00

STYLE OF CAUSE:                  BENJAMIN BADJECK

v.

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

PLACE OF HEARING:            MONTRÉAL, QUEBEC

DATE OF HEARING:              NOVEMBER 7, 2001

REASONS FOR ORDER:        ROULEAU J.

DATED:                                      NOVEMBER 28, 2001

APPEARANCES:

DANIEL PAQUIN                                                                        FOR THE PLAINTIFF

CAROLINE DOYON                                                                  FOR THE DEFENDANT

SOLICITORS OF RECORD:

ALARIE, LEGAULT, BEAUCHEMIN,                                     FOR THE PLAINTIFF

PAQUIN, JOBIN, BRISSON & PHILPOT

MORRIS ROSENBERG                                                              FOR THE DEFENDANT

DEPUTY ATTORNEY GENERAL OF CANADA