Date: 20010213
Docket: T-929-00
Citation: 2001 FCT 64
Ottawa, Ontario, this 13th day of February, 2001
| PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE |
BETWEEN:
MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
GHADA HAGGAG
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
Proceedings
[1] This is an appeal brought pursuant to subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 (the "Act") and section 21 of the Federal Court Act, R.S.C. 1985, c. F-7, appealing the decision of Citizenship Judge Donald Tremaine (the "Citizenship Judge") dated March 29, 2000. In his decision, the Citizenship Judge approved the respondent's application for Canadian citizenship. The applicant, the Minister of Citizenship and Immigration, seeks an Order quashing the above decision.
Background Facts
[2] The respondent, Mrs. Ghada Haggag, was born in the United Arab Emirates but is a stateless Palestinian by birth. The respondent entered Canada on May 27, 1994, and became a landed immigrant on July 15, 1994. The respondent submitted her application for citizenship on May 27, 1999 and was interviewed on March 29, 2000. At this time, she had one Canadian born child and a second Canadian born child arrived shortly thereafter at the end of April.
[3] In his decision, the Citizenship Judge determined that the residence test of paragraph 5(1)(c) of the Act, which requires at least three years (1,095 days) of residence in Canada within the four years immediately preceding the date of the application for citizenship, had been met by the respondent. The respondent's absences from Canada totalled 762 days in the four years preceding her application for citizenship and she was 397 days short of the 1,095 days of residence required to meet the residence test of paragraph 5(1)(c). The Citizenship Judge's reasons state the following:
| Client had hearing this date. Verbal test score 19/20. She got a degree in dentistry in Damascus before coming to Canada. Although her "time out" of the country totaled [sic] 762 days, Oct `97 to Oct `99 she was in Japan upgrading her dental degree. (certificate and letter from the Dean of dental faculty in file.) She and her family are fully integrated Canadians. In my opinion: "The pattern of physical presence indicates that Canada is now and will continue to be her home. [sic] APPROVED |
[4] The respondent's application for citizenship indicates the following absences from Canada:
| From
|
To
|
Reason
|
Destination
|
| 1995/11/18
|
1996/02/09
|
Marriage
|
U.A.E.
|
| 1997/06/18
|
1997/08/04
|
Holiday
|
|
| 1997/08/30
|
1999/03/27
|
University (Research Student)
|
Japan
|
| 1999/04/04
|
1999/05/29
|
University (Research Student)
|
Japan
|
| 1999/05/29
|
1999/06/17
|
Pay Respects to Father's Grave and Receive Condolences
|
|
| 1999/06/18
|
1999/10/03
|
University (Research Student)
|
Japan
|
[5] In addition to bank accounts, tax returns, drivers licence, medical and social insurance, an apartment and furniture, the respondent puts forth the following as indicia of her residence:
| 1. She is stateless, has no status, and has no life elsewhere. If she did not establish Canada as her centralized mode of living, it must be said she was a vagabond because she had no where to live. |
| 2. She has two Canadian born children. It is indicative of her own intention and action as a Canadian that her children are Canadian. |
| 3. Her absences were almost exclusively related to improving her education at a significant level and herself as a Canadian. They were not about convenience or a desire to leave a former home. |
| 4. Her absences were all supported by a Returning Residence Permit. Prior to her departure, she went to the Department of Immigration, disclosed her intention, and advised them that her absences were temporary and that she would return to Canada. |
[1] Issues
| 1. What standard of review is to be applied in reviewing the visa officer's decision? |
| 2. Did the Citizenship Judge err in finding that the respondent met the residence requirements of paragraph 5(1)(c) of the Act? |
Applicant's Submissions
[1] The applicant submits the documentary exhibits attached to the affidavit of Ghada Haggag are not sworn and should therefore be disregarded. Furthermore, the applicant submits exhibits 1, 2 and 3 were not before the Citizenship Judge.
[2] The applicant submits that the proper standard of review was that stated by Lutfy J. (as he then was) in Lam v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 177 at page 188 (F.C.T.D.) and that standard was "one close to the correctness end of the spectrum".
[3] The applicant submits that an applicant needs to do more than assemble the necessary paperwork (tax returns, bank card, etc.) in order to establish Canadian residence and cites the decision of Canada (Minister of Citizenship and Immigration) v. Rahman (April 29, 1999), Docket T-2161-97 (F.C.T.D.).
[4] The applicant submits that the test in Re Papadogiorgakis, [1978] 2 F.C. 208 (F.C.T.D.) should likewise not be applied in the respondent's situation. The applicant submits the respondent did not return frequently or take most of her holidays in Canada while she was studying abroad. Additionally, the only evidence of her establishing residence, according to the applicant, was the presentation of the "usual paperwork".
[5] The applicant further submits the case of Canada (Minister of Citizenship and Immigration) v. Arico (June 2, 1999) Docket T-865-98 (F.C.T.D.), where the Minister appealed the Citizenship Judge's decision to allow the citizenship application. In Arico, supra, the respondent had spent "extensive periods of time outside Canada . . . to pursue her academic studies." The Court found that the respondent had not established residence in Canada.
[6] According to the applicant, the respondent's decision to study in Japan was voluntary and there is no evidence that she made any attempt to find a similar program of study in Canada. The applicant further argues the respondent made repeated references to the fact that she came to Canada with her parents and siblings and that she has many relatives in Nova Scotia. The applicant therefore submits her connection to Canada is to her family and not to the country. The applicant also notes there is no reference in the record as to the whereabouts of the respondent's husband, except for the fact that she travelled to the United Arab Emirates in 1995 to marry him. The applicant further notes that the respondent has never stated that her husband has ever entered Canada.
[7] The applicant offers Canada (Minister of Citizenship and Immigration) v. Wu (July 28, 1999), Docket T-451-99 (F.C.T.D.) where, despite the fact that the applicant for citizenship had spent about half of her time here and had been in Canada for the first 15 months after becoming pregnant, and despite the fact that she owned a home in Canada with two children attending university in Toronto, Justice Evans allowed the appeal of the Minister on the basis that "her ordinary mode of living cannot be said to be centralized here".
[8] The applicant notes that the respondent was landed in July, 1994 and that she did not make her application for citizenship until May 27, 1999. Thus, the four-year period began in May, 1995. The respondent's first absence during this period began in November, 1995. The applicant argues that although there is evidence to indicate the respondent was present in Canada for 16 months before her first absence, she was present only for the first 5 [frac12] months during the relevant period. The applicant submits that as in Wu, supra, the respondent has similarly not shown that her mode of living had become centralized in Canada, even though she may have been present in Canada for 16 months before her first absence.
[9] The applicant submitted that I should apply my reasoning in Canada (Minister of Citizenship and Immigration) v. Al Farra (June 28, 2000), Docket T-1237-99 (F.C.T.D.) to the present case and that the applicant presented less evidence than Al Farra.
Respondent's Submissions
[10] The respondent has indicated that both she and counsel who took her oath will be available in Court to attest that the exhibits were attached to her affidavit and are therefore properly before the Court.
[11] In addition, the respondent raised the following issues in her memorandum:
1. What is the standard of review of the Citizenship Judge's decision?
The respondent agrees with the applicant that Lutfy J. (as he then was) best stated this matter in Lam, supra.
2. Did the Citizenship Judge err in law based on the standard of review?
The respondent disagrees with the applicant's use of the standard of review and submits the following passage from page 188 of Lam, supra: "the reviewing judges ought not to substitute arbitrarily their different opinion of the residency requirement." The respondent argues that while the standard of review is close to correctness, it is not correctness. The respondent submits the standard of review is an examination to determine if the Citizenship Judge provided clear reasons which demonstrate an understanding of the law.
The respondent submits that the Citizenship Judge made his decision by checking all of the relevant boxes and providing written reasons in a standard citizenship decision form. Thus, the respondent submits that when this decision is applied to the standard of review as set out in Lam, supra, the Court ought not interfere. The Citizenship Judge, according to the respondent, has demonstrated a clear understanding and application of the law.
Moreover, the respondent argues that the Citizenship Judge has dealt with the issue of Ms. Haggag's absences and notes so in his decision. The Citizenship Judge also directly dealt with both the issue of her physical presence in Canada, and the issue of the centralization of her mode of living in Canada. Thus, the respondent submits the Citizenship Judge did not commit a reviewable error based on the accepted standard of review.
3. If the decision is reviewed in detail, did the Citizenship Judge arrive at the correct conclusion based on the correct law?
The respondent submits Singh v. Canada (Minister of Citizenship and Immigration) (May 26, 1999), Docket T-2040-98 (F.C.T.D.), where Justice MacKay quoted the following passage from the Citizenship Judge's decision:
| Federal Court precedents require that, to establish residence, an individual must show, in mind and in fact, a centralization of his or her mode of living in Canada. If such residence is established, absences from Canada do not affect this residence, as long as it is demonstrated that the individual left for a temporary purpose only and maintained in Canada some real and tangible form of residence. |
The respondent submits this is an accurate statement of the law, and is quite different from the applicant's submissions. The respondent submits that an applicant for citizenship must show a centralized mode of living in Canada, not physical presence, in order to be resident. Despite Mr. Singh's absences as a student in Singh, supra, the respondent submits Justice MacKay confirmed that he should have been granted citizenship when "the length and quality of the Applicant's time in Canada" was considered. The respondent argues the Court confirmed that the focus of section 5 of the Act was whether the applicant was Canadianized.
| [18] The respondent submits that perhaps the best way of examining the details of her |
case is by addressing the six questions suggested by Madam Justice Reid in Koo, Re (1992), 59 F.T.R. 27 (F.C.T.D.).
| [19] The respondent argues her connection with Canada is significantly more extensive |
than her connection to any other country. She has no right to live in any other country and has no real connection to any other country. In conclusion, the respondent submits that she has established in mind and in fact, a centralization of her mode of living in Canada.
Relevant Statutory Provisions
| [20] The relevant provisions of the Citizenship Act state: |
| 5. (1) The Minister shall grant citizenship to any person who
(a) makes application for citizenship;
(b) is eighteen years of age or over;
(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:
(i) 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
(ii) 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;
(d) has an adequate knowledge of one of the official languages of Canada;
(e) has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship; and
(f) is not under a deportation order and is not the subject of a declaration by the Governor in Council made pursuant to section 20.
|
|
| 5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois_:
a) en fait la demande;
b) est âgée d'au moins dix-huit ans;
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_:
(i) un demi-jour pour chaque jour de résidence au Canada avant son admission à titre de résident permanent,
(ii) un jour pour chaque jour de résidence au Canada après son admission à titre de résident permanent;
d) a une connaissance suffisante de l'une des langues officielles du Canada;
e) a une connaissance suffisante du Canada et des responsabilités et avantages conférés par la citoyenneté;
f) n'est pas sous le coup d'une mesure d'expulsion et n'est pas visée par une déclaration du gouverneur en conseil faite en application de l'article 20.
|
|
| (5) The Minister or the applicant may appeal to the Court from the decision of the citizenship judge under subsection (2) by filing a notice of appeal in the Registry of the Court within sixty days after the day on which
(a) the citizenship judge approved the application under subsection (2); or
(b) notice was mailed or otherwise given under subsection (3) with respect to the application.
|
(5) Le ministre et le demandeur peuvent interjeter appel de la décision du juge de la citoyenneté en déposant un avis d'appel au greffe de la Cour dans les soixante jours suivant la date, selon le cas_:
a) de l'approbation de la demande;
b) de la communication, par courrier ou tout autre moyen, de la décision de rejet.
|
| What standard of review is to be applied in reviewing the visa officer's decision? |
| I am of the view that for the purposes of this case, the standard of review set by Lutfy J. (as he then was) in Lam, supra, should be applied, i.e. "Close to the correctness end of the spectrum". |
| [22] I have reviewed the decision of Citizenship Judge Tremaine and although the |
| Citizenship Judge did not clearly state the statutory test he chose to apply in considering whether the respondent had met the residency requirement of paragraph 5(1)(c) of the Act, I have concluded from his decision that he used a test similar to that in either Re Papadogiorgakis, supra or Koo, Re, supra and not the test in Pourghasemi, Re (1993), 62 F.T.R. 122 (F.C.T.D.), which requires at least three years physical presence in Canada. |
| [23] Madam Justice Reid set out six factors to consider when determining whether or |
| not an applicant for citizenship has met the residency requirements of paragraph 5(1)(c) of the Act. I now propose to summarize these factors and apply them to the present case. |
| [24] The application of factors in Koo, Re, supra are as follows: |
1. Was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship?
The respondent has been a permanent resident for six years. Her absences occurred directly in the middle of the relevant time period. The respondent became a landed immigrant of Canada on July 15, 1994 and her first absence from Canada occurred on November 18, 1995. In that time period, she lived in Nova Scotia.
2. Where are the individual's immediate family and dependents (and extended family) resident?
The respondent's brothers, sisters, mother and daughter live in Nova Scotia.
3. Does the pattern of physical presence in Canada indicate a returning home or merely visiting the country?
The respondent has no other place to call home. She is a stateless Palestinian. Everything she has is in Nova Scotia - family and accommodations at 6028 Lady Hammond Road, Halifax, Nova Scotia.
4. What is the extent of the physical absences - if an individual 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?
According to Citizenship Judge Tremaine, the respondent has been out of the country for 762 days in the relevant time period, but the absences were mainly to attend university.
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?
The respondent submits the majority of her absences from Canada were clearly temporary and related to a temporary course of study that has now been completed. She was in Japan studying "Diagnosis and Treatment in Prosthodontics" from October 1, 1997 to March 31, 2000.
6. What is the quality of the connection with Canada: is it more substantial than that which exists with any other country?
The respondent was living in Nova Scotia for approximately 15 months before her first departure. She obtained a returning resident permit when departing Canada. She rented accommodations in Japan. She paid Canadian income tax, had a Canadian bank account, stored her furniture in Canada while away, has Nova Scotia medical insurance and had one daughter in Canada at the time of the interview.
| [25] I am satisfied that Citizenship Judge Tremaine had this information before him as |
he had the respondent's application for citizenship and in addition, he personally interviewed the respondent. It would have been preferable to have the test that he applied stated in more detail, but I am satisfied that he applied the proper test.
| [26] Based on my review of the Koo, Re, supra factors, I am satisfied that the |
respondent established a centralized mode of living in Canada in the approximately 15 months that she was living in Canada before her departure. As well, I am satisfied that her quality of connection with Canada is more substantial than with any other country. Finally, it is my opinion that the respondent has satisfied the residency requirements of paragraph 5(1)(c) of the Act and therefore, the decision of Citizenship Judge Tremaine is correct as the periods of absence from Canada can be used to establish the residency requirements.
| [27] My decision in Al Farra, supra, is distinguishable in that the applicant for |
citizenship was only in Canada for 7 days before his first absence from Canada.
| [28] The appeal of the applicant is therefore dismissed. |
ORDER
| [29] IT IS ORDERED that the appeal is dismissed. |
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
February 13, 2001
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