Parapatt v. Canada (Minister of Citizenship and Immigration), 2002 FCT 229

                                                                                                                                            Date: 20020301

                                                                                                                                         Docket: T-527-01

                                                                                                                   Neutral Citation: 2002 FCT 229

BETWEEN:

                                                            SONY JOHN PARAPATT

                                                                                                                                                        Appellant,

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent.

                                                            REASONS FOR ORDER

KELEN J.:

[1]         This is an appeal pursuant to subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29, and section 21 of the Federal Court Act, R.S.C. 1985, c.F-7 from the decision of Citizenship Judge Ruth Cruden, dated February 23, 2001, wherein the Citizenship Judge did not approve the application of the applicant for a grant of citizenship under subsection 5(1) of the Citizenship Act.

FACTS

[2]         The applicant was born February 3, 1973 in Zambia. He is a citizen of India, as were his parents. From 1989 to May, 1991, the applicant had been in Canada attending Lester B. Pearson College in Victoria, BC. Thereafter he attended school in Pennsylvania, USA until May 1995.

He then attended a training program in Massachusetts, USA that turned into a short-term contract position. The applicant came to Canada as a permanent resident on February 27, 1997, but left Canada two days later to return to the United States. His parents had previously been admitted as permanent residents on January 31, 1997. The family settled in Brampton, Ontario, while the applicant returned to the US to finish his employment contract. He returned to Canada on June 2, 1997. Since his return, he has obtained a SIN, health card and driver's license and opened a bank account.

[3]         From August, 1997 until June, 2000, the applicant attended the Stanford Law School in the United States for a combined Law and Economics degree. He worked in Canada for two summers and in the UK and Hong Kong for the summer of 1999. He visited Canada on his vacations and was supported by his parents, who remained in Ontario. He filed Canadian tax returns, and subsequent to his Stanford degree has completed the Canadian Securities Course and applied to write the Ontario accreditation in law exams.

[4]         On March 29, 2000, the applicant applied for Canadian citizenship. The applicant's interview with the Citizenship Judge took place on October 26, 2000.

[5]         The applicant was absent from Canada for 869 days, and physically present in Canada for 268 days between the time the applicant entered Canada as a permanent resident on February 27, 1997 and the time the applicant applied for Canadian citizenship on March 29, 2000. The applicant returned to Canada to visit his parents on holidays, and spent two summers in Canada.

[6]         By letter dated February 23, 2001, the applicant was informed that his application was not approved on the grounds he had failed to meet the criteria set out in paragraph 5(1)(c) of the Citizenship Act.

STANDARD OF REVIEW

[7]         The standard of review for a decision of a Citizenship Judge with regards to the selection and application of a residence test is set out by McKeown J. in Zhang v. M.C.I., [2001] F.C.J. No.778 at paragraph 7:

The standard of review applicable in such matters is correctness. The test is refined further by Justice Lutfy in Lam v. Canada (M.C.I.) (1999), 164 F.T.R. 177 where he stated at paragraph 33:

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 was further refined by Justice Pelletier in Canada (M.C.I.) v. Mindich (1999), 170 F.T.R. 148 (T.D.) where he stated at paragraph 9:

Given the divergence in the views of the members of the Federal Court, a Citizenship Judge could choose one approach or the other and not be wrong on that count alone. The function of the judge sitting in appeal is to verify that the Citizenship Judge has properly applied the test of his or her choosing. [emphasis added]

Accordingly, the standard of review is correctness, in that the Appeal Court must verify that the Citizenship Judge has correctly applied one of the residency tests. The Appeal Court ought not substitute its different opinion unless the Citizenship Judge has made an error in applying the residency test.

QUALIFICATION FOR CITIZENSHIP

[8]         Pursuant to the calculation prescribed by paragraph 5(1)(c)of the Citizenship Act, in order to be granted citizenship, the appellant must have accumulated at least three years (1095 days) of residence in Canada within the four years immediately preceding the date of her application.

Subsection 5(1) of the Act reads as follows:

Grant of citizenship

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.

Attribution de la citoyenneté

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.

TEST FOR RESIDENCY

[9]         Several tests for residency have been developed by the Federal Court of Canada, Trial Division. It has been established in Hsu v. M.C.I., [2001] F.C.J. No. 862 (F.C.T.D.), per Heneghan J. that Citizenship Judges may properly apply any test, but may not blend different tests together. Heneghan J. held at paragraph 7:

In my opinion, it appears that the Citizenship Judge blended two tests, that is the strict calculation of time with the substantial connection test expressed in Re: Koo, [1993] 1 F.C. 286 (T.D.). While the reasons reflect consideration of the questions posed in Re: Koo, supra, there is no evidence in the record or the reasons that the Citizenship Judge fully or openly addressed her mind to the issue of "connection" to another country. Such analysis, in my opinion, would be required before the Citizenship Judge could reach the conclusion which she did, that is that the Appellant had failed to demonstrate a "known substantial connection to Canada than to any other country". I adopt the words of Justice Lemieux in Re: Agha (1999), 166 F.T.R. 245 (T.D.) at paragraph 49:

The lack of the Citizenship judge's analysis in this case is an error in principle which eliminates any reluctance I might have had in coming to a different factual conclusion notwithstanding the trial de novo context.

[10]       In re Citizenship Act and in re Antonios E. Papadogiorgakis, [1978] 2 F.C. 208 (F.C.T.D.), Thurlow A.C.J. set out the "central existence" test such that notwithstanding absences that exceed the minimum requirements, the application hinges on whether or not the appellant has centralized his ordinary existence in Canada:

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. [[1946] S.C.R. 209">Thomson v. M.N.R., [1946] S.C.R. 209] 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"

[11]       Dubé J. restated this test in Re: Banerjee (1994), 25 Imm.L.R. (2d) 235 (F.C.T.D.) at 238 as: "It is the quality of the attachment to Canada that is to be ascertained."

[12]       The "physical presence" test set out by Muldoon J. in Pourghasemi (Re), [1993] F.C.J. No. 232 (F.C.T.D.) calls for the appellant to be physically present in Canada for the required number of days. Paragraphs 3-4 read:

It is clear that the purpose of paragraph 5(1)(c) is to insure that everyone who is granted precious Canadian citizenship has become, or at least has been compulsorily presented with the everyday opportunity to become, "Canadianized". This happens by "rubbing elbows" with Canadians in shopping malls, corner stores, libraries, concert halls, auto repair shops, pubs, cabarets, elevators, churches, synagogues, mosques and temples - in a word wherever one can meet and converse with Canadians - during the prescribed three years. One can observe Canadian society for all its virtues, decadence, values, dangers and freedoms, just as it is. That is little enough time in which to become Canadianized. If a citizenship candidate misses that qualifying experience, then Canadian citizenship can be conferred, in effect, on a person who is still a foreigner in experience, social adaptation, and often in thought and outlook. If the criterion be applied to some

citizenship candidates, it ought to apply to all. So, indeed, it was applied by Madam

Justice Reed in Re Koo, T-20-92, on December 3, 1992 [Please see [1992] F.C.J.

No. 1107.], in different factual circumstances, of course.

The statute does not direct the Court to evince sentimentality in order to evade, or to defy the statutory requirement for residence. Perhaps because of misunderstanding of this Court's previous jurisprudence, appellants seem to be advised to keep Canadian bank accounts, magazine subscriptions, medicare cards, lodgings, furniture, other property and good intentions to meet the statutory criterion, in a word, everything except really residing among Canadians in Canada for three out of the previous four years, as Parliament prescribes. One may ask: So what if the would-be citizen be away at school or university? What is the urgency? If the candidate cannot find an adequate school or university in Canada, let him or her study abroad and then come back to Canada in order to comply with the residence requirement.

[13]       Finally, with respect to the "centralized existence" test, Reed J. in Koo (Re), [1993] 1 F.C. 286, [1992] F.C.J. No. 1107 (F.C.T.D.) set out a list of factors which point to sufficient attachment to Canada so as to allow for the granting of citizenship even where a required minimum number of days has not been met:

The conclusion I draw from the jurisprudence is that the test is whether it can be said that Canada is the place where the appellant "regularly, normally or customarily lives". Another formulation of the same test is whether Canada is the country in which he or she has centralized his or her mode of existence. Questions that can be asked which assist in such a determination are:

(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 appellant's immediate family and dependents (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 appellant 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?

[14]       All these tests have been held to be applicable. As Blanchard J. stated in So v. Canada (Minister of Citizenship & Immigration), [2001] F.C.J. No. 1232 (F.C.T.D.), at paragraph 29:

The jurisprudence supports the proposition that a Citizenship Judge may adopt and apply whichever of the above test he or she chooses as long as it properly applied.

In Lam v. Canada (Minister of Citizenship & Immigration), [1999] F.C.J. No. 410 (F.C.T.D.) at paragraph 14, Lutfy J. (as he then was) stated:

In my opinion, it is open to the Citizenship Judge to adopt either one of the conflicting schools in this Court and, if the facts of the case were properly applied to the principles of the chosen approach, the decision of the Citizenship Judge would not be wrong.

DECISION OF THE CITIZENSHIP JUDGE

[15]       The Citizenship Judge did not approve the application of Sony John Parapatt for a grant of citizenship on the basis that the applicant did not meet the requirements of subsection 5(1)(c), which requires an applicant to have accumulated a minimum of three years residence in Canada during the four years preceding his application for citizenship. In the Judge's letter of decision, the Judge notes that:

While you were landed 28 February 1997 you returned to complete your employment contract in the U.S. two days later. I conclude that you did not establish residence on the date of landing. Having completed your employment contract on 01 June 1997, you returned to Canada for the summer months, shipping your belongings by UPS to Canada. It would appear that you established residence on 01 June 1997. For the purpose of the residency requirement, the time period under consideration is 29 March 1996 to 29 March 2000 (the date of your application). With residency not established until 01 June 1997, I consider you can only [be] credited with 1002 days since establishment of residence, not 1124 days as shown on CRS calculations. Therefore basic of 1095 days residence was not met and I do not approve this application. Also, when 01 June 1997 is, in effect, the date

that residence was established, you were absent a further 764 days, mainly to attend

Stanford Law School, but also summer employment in UK, Singapore and Hong Kong. Although you have provided some indicia of residence, that is, filing tax returns in 1997, 98, 99, applying for a driver's license in 1999, banking in Canada, getting a student loan here, having parents who live here, the fact is that you are short 827 days of the required 1095, and Canada is not the place where you "regularly, normally and customarily" lived during the qualified period. You have not "centralized your mode of living" in Canada. In short, all of the facts of your case indicate a closer connection to the United States of America than to Canada, during the time period under consideration

ISSUES

[16]       Did the Citizenship Judge err in determining that the applicant failed to comply with the residency requirement of section 5(1)(c) of the Act?

[17]       Has the Judge correctly determined whether the applicant has "centralized his mode of living" in Canada?

ANALYSIS

[18]       Both parties in this matter agree that the citizenship judge applied the Koo test of "centralized existence".

First Issue

[19]       The Citizenship Judge found that the applicant did not establish residence in Canada until June 1, 1997 since the applicant was not living in Canada until that date. Even though the applicant had entered Canada as a permanent resident on February 27, 1997, the applicant left Canada two days later for the United States until his return to Canada on June 1, 1997. This Court has repeatedly

held that the applicant must centralize his existence in Canada before leaving if the subsequent absences are to be considered constructive residence or deemed residence in accordance with Koo,

supra. Mr. Justice Pelletier in Sud v. Canada (M.C.I.), [1999] F.C.J. No. 1609 held at paragraph 5:

"Residence does not begin to accumulate until it has been established."

[20]       In this case, the Citizenship Judge did not err in law or in fact in finding that the applicant had not centralized his existence or his residence in Canada until June 1, 1997. The Citizenship Judge correctly found that the applicant can only be credited with 1,002 days of deemed residence, which is short of the statutory minimum of 1,095 days. Accordingly, the Citizenship Judge correctly held that even if the applicant had centralized his mode of living in Canada by June 1, 1997, the applicant is still short of the statutory minimum number of days of residence before citizenship can be granted.

Second Issue

[21]       The second issue raised by the Citizenship Judge is obiter in view of the finding that the applicant cannot meet the minimum statutory number of days of residence in Canada to qualify for citizenship. Nevertheless, the Citizenship Judge considered the total circumstances of the applicant, and concluded that "Canada is not the place where you "regularly, normally and customarily" lived during the qualified period. You have not "centralized your mode of living" in Canada. In short, all of the facts of your case indicate a closer connection to the United States of America than to Canada, during the time period under consideration."

[22]       Accordingly, the Citizenship Judge also found that the applicant's connection to the United States of America is closer than it is to Canada. This finding was open to the Citizenship Judge, and is not incorrect.

CONCLUSION

[23]       In conclusion, the applicant is not exempt from the requirement to demonstrate that his quality of attachment to Canada is greater than the U.S., where he has lived, studied and worked for most of the material time. A student must first establish Canada as his place of residence before he leaves Canada to study if his absences from Canada while studying are to be counted as deemed residence in Canada.

[24]       For these reasons, this appeal is dismissed.

                                                                                                                                                                              (signed) Michael A. Kelen

                                                                                                        _____________________________

                                                                                                                                                           JUDGE

OTTAWA, Ontario

March 1, 2002