Date: 20001013
Docket: T-1882-99
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
-and-
ALYSON SCADRON-WATTLES
Respondent
REASONS FOR JUDGMENT
DAWSON J.
[1] The issue in this appeal is whether the citizenship judge erred in approving the application of the respondent, Ms. Scadron-Wattles, for citizenship, and more particularly whether he erred in determining that Ms. Scadron-Wattles met the residence requirement contained in paragraph 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29 as amended ("Act").
[2] Ms. Scadron-Wattles neither filed a respondent's record nor appeared in person or by counsel at the hearing of this appeal. Proof of service of the notice of application and notification to Ms. Scadron-Wattles of the hearing date appear in the court file. Accordingly, the appeal proceeded in the absence of Ms. Scadron-Wattles pursuant to the provisions of Rule 38 of the Federal Court Rules, 1998.
[3] The standard of review applicable to an appeal under subsection 14(5) of the Act is near the correctness end of the spectrum. This means that deference by a judge of this Court is required where a citizenship judge in clear reasons which demonstrate an understanding of the case law properly decides that the facts satisfy the citizenship judge's view of the statutory test contained in paragraph 5(1)(c) of the Act. See: Lam v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 177 (F.C.T.D.).
[4] The relevant facts as they appear from the Tribunal Record are as follows.
[5] Ms. Scadron-Wattles is a 25 year old citizen of the United States who came to Canada on August 12, 1988 with her parents and sister. She was later landed in Canada, with her parents and sister, on April 19, 1991.
[6] Ms. Scadron-Wattles attended grade and high schools in Canada and then worked on various unspecified film and television productions in Toronto and she also worked at a theatre company in Kitchener, Ontario. The dates of this employment were not disclosed by Ms. Scadron-Wattles in her application, nor were dates specified for the part-time employment in the restaurant industry which Ms. Scadron-Wattles said she gave up in order to go to school.
[7] Ms. Scadron-Wattles applied for citizenship on October 1, 1998. In the four years, or 1,461 days, preceding that date she was absent from Canada for a total of 1,352 days. Those absences were described as follows:
| From To Destination Reason Days Absent |
| 10/1/94 12/18/94 Valencia, CA USA attend college 107 |
| 1/4/95 12/16/95 Valencia, CA USA attend college 346 |
| 1/7/96 5/17/96 Valencia, CA USA attend college 131 |
| 5/31/96 6/8/96 Ithaca, NY USA attend wedding 8 |
| 7/7/96 12/17/96 Valencia, CA USA attend college 163 |
| 1/2/97 5/29/97 Valencia, CA USA attend college 147 |
| 6/9/97 12/17/97 Elmer, NJ USA teaching 191 |
| Valencia, CA USA attend college |
| 1/5/98 9/21/98 Valencia, CA USA attend college 259 |
[8] Ms. Scadron-Wattles received a Bachelor of Fine Arts Degree from the California Institute of the Arts in Valencia on May 15, 1998.
[9] The reasons of the citizenship judge were as follows:
| The applicant is 987 days short of the required 1095 - or she has accumulated 108 days in Canada during the 4 year period preceding her application. |
| She landed in Canada in 1991 with parents & siblings - but has been in Canada on Student Visas since 1998 [1988?]. She attended elementary & secondary school for 6 years before leaving for California to attend school for a 4 year period in 1994. She applied for Citizenship in October 1998. During her absence she maintained her home in Canada at her parents place - books, clothing & some furniture were stored in Canada during absence. During her absence she filed income tax, maintained Canadian driving licence, SIN, Health Card, bank account. During this four year period of absence her parents & sister remained in Canada, they have been approved for citizenship, she kept her belongings in Canada, her abode in the U.S.A. was a student dormitory, she returned albeit briefly on regular vacations to Canada to be with her family. Since graduation in October 1998 she has been back to California to complete a project for about 6 weeks - other than that she has remained in Canada. |
| Of note, while she was a student in the U.S.A. She declared American income & filed each year in Canada. |
| The application bears striking similarity to 2 cases that I non-approved [sic] (T-1697-96 AND T-1698-96) Daniel Hooft & Emilia Hooft. They appealed and it was allowed by Judge Marc Nadon who stated, "In my view, the fact that the applicant has been studying abroad...... does not deprive him of his "residence" in Canada. In my view the appellant left Canada "for a temporary purpose" to pursue his studies." As a consequence I am approving thus application - she has met residence requirements as per Thurlow." |
[10] From the facts recited above it is apparent that the citizenship judge erred when he stated that since her graduation Ms. Scadron-Wattles had returned to California to complete a project for about six weeks, but other than that she had remained in Canada. In fact, Ms. Scadron-Wattles graduated on May 15, 1998, and thereafter remained in California until September 21, 1998. I find the error to be material because it suggests a closer connection to Canada than was evidenced by the information before the citizenship judge. For a period of just over four months after her graduation, Ms. Scadron-Wattles remained in the United States for reasons not apparent on the record.
[11] Further, while the citizenship judge referred to Ms. Scadron-Wattles living in the United States in a student dormitory, he failed to deal with the six month period in 1997 when for an unspecified portion of that period Ms. Scadron-Wattles was not attending college in California, but rather was teaching in New Jersey.
[12] As for the citizenship judge's consideration of the case law, his discussion of the applicable legal principles was confined to two cases where prior decisions he had made were reversed by Nadon, J. of this Court. The citizenship judge quoted Nadon, J. briefly and stated that Ms. Scadron-Wattles' case bore a striking similarity to the cases before Nadon, J. The citizenship judge then concluded that Ms. Scadron-Wattles had met the residence requirement "as per Thurlow".
[13] In the two cases referred to by the citizenship judge, Justice Nadon considered the decision of Thurlow, A.C.J., as he then was, in Re: Papadogiorgakis, [1978] 2 F.C. 208 (F.C.T.D.) and quoted with approval the following:
| A person with an established home of his own in which he lives does not cease to be resident there when he leaves it for a temporary purpose whether on business or vacation or even to pursue a course of study. The fact of his family remaining there while he is away may lend support for the conclusion that he has not ceased to reside there. The conclusion may be reached, as well, even though the absence may be more or less lengthy. It is also enhanced if he returns there frequently when the opportunity to do so arises. It is, as Rand J. appears to me to be saying in the passage I have read, "chiefly a matter of the degree to which a person in mind and fact settles into or maintains or centralizes his ordinary mode of living with its accessories in social relations, interests and conveniences at or in the place in question". |
[14] Central to the "Thurlow" requirements should be an inquiry as to whether an applicant such as Ms. Scadron-Wattles has centralized her ordinary mode of living in Canada so that any absence can be said to be for a temporary purpose. Thus in Re: Emilie Hooft, [1997] F.C.J. No. 812, T-1697-96 (June 11, 1997) (F.C.T.D.), Nadon, J. reviewed the applicant's connection with Canada, stressed that the applicant had made it very clear that her intention was to return to Canada, and found that having established her home in Canada her absences from Canada were for a temporary purpose. In Re: Daniel Hooft, [1997] F.C.J. No. 813, T-1698-96 (June 11, 1997) (F.C.T.D.), Nadon, J. after reviewing the facts concluded that he was satisfied that the applicant had only left Canada for a temporary purpose. In that case, the applicant continued to study abroad. The applicant had not, as Ms. Scadron-Wattles had, continued to reside abroad after completing his schooling.
[15] I accept the Minister's submission that in the present case the reasons of the citizenship judge do not demonstrate any analysis of Ms. Scadron-Wattles' attachment to Canada beyond the passive indicia of residence or any consideration as to whether her absences were of a temporary nature.
[16] In the present case:
| · In the four years preceding her application for citizenship, Ms. Scadron-Wattles was away for a total of 1,352 days. Her absences were for lengthy periods of time. When present in Canada it was for an average of 16 days at a time. |
| · While the primary reason for those absences was to attend school, when given the opportunity Ms. Scadron-Wattles worked in the United States, and remained there for a time after her graduation. |
| · Neither the tribunal record nor the reasons of the citizenship judge reflect any participation by the respondent in any Canadian associations or any involvement in community activities. |
| · There is no evidence as to any efforts on Ms. Scadron-Wattles' part to pursue either education or post-graduate employment opportunities in Canada. |
[17] While the citizenship judge looked to the facts that Ms. Scadron-Wattles filed tax returns in Canada, maintained a Canadian driver's licence, SIN and health cards, and that her family lives in Canada, those factors alone have been held to be insufficient indicia of centralizing one's ordinary mode of living in Canada. See: Re: Shang, [1998] F.C.J. No. 112, T-1186-97 (January 23, 1998) (F.C.T.D.).
[18] Accordingly, when I view the facts set out in paragraph 16 in light of the citizenship judge's erroneous statement that other than for a six week period after graduation Ms. Scadron-Wattles remained in Canada, I conclude that the citizenship judge erred in law in concluding that Ms. Scadron-Wattles had satisfied the residence requirement of paragraph 5(1)(c) of the Act.
[19] The appeal is allowed. The decision of the citizenship judge dated August 30, 1999 is quashed.
"Eleanor R. Dawson"
Judge
Ottawa, Ontario
October 13, 2000
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