Date: 20020419
Docket: T-596-01
Neutral citation: 2002 FCT 447
BETWEEN:
ALEXEI GOUDIMENKO,
Applicant,
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
LAYDEN-STEVENSON J.
[1] The appellant Alexei Goudimenko, a 30 year-old landed immigrant, landed in Canada on January 28, 1996 and applied for citizenship on February 12, 1999. Mr. Goudimenko's citizenship hearing took place on September 11, 2000 and in correspondence dated February 14, 2001, the citizenship judge refused his request for citizenship on the basis that Mr. Goudimenko did not meet the requirements of residence contained in the Citizenship Act.
[2] The appellant is a citizen of Belarus. His parents live in Toronto, Ontario. His father has been granted Canadian citizenship. At the time of Mr. Goudimenko's application, his mother's citizenship application was pending and has since been granted. Five days after landing in Canada, the appellant returned to his graduate studies at Syracuse University in Syracuse, New York, United States of America. He has, since his landing, spent much of his time as a postgraduate student in the United States. He completed a Master's Degree at Syracuse in May 1997 and is presently a Ph.D. candidate in international relations at Florida International University. He has been out of Canada for 476 days since his landing leaving him 461 days short of the 1095 days required by paragraph 5(1)(c) of the Citizenship Act..
[3] The citizenship judge considered whether the appellant's absences were sufficiently temporary so as to be counted as residence and concluded that Mr. Goudimenko's application was premature because he had not centralized his mode of living in Canada. In considering whether to exercise her discretion under subsection 5(4) of the Act, the judge concluded that the appellant had not provided any evidence of special and undue hardship.
[4] The relevant statutory provisions are:
Citizenship Act, R.S.C. 1985, c.C-29
| 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.
. . .
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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.
. . .
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| (4) In order to alleviate cases of special and unusual hardship or to reward services of an exceptional value to Canada, and notwithstanding any other provision of this Act, the Governor in Council may, in his discretion, direct the Minister to grant citizenship to any person and, where such a direction is made, the Minister shall forthwith grant citizenship to the person named in the direction.
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(4) Afin de remédier à une situation particulière et inhabituelle de détresse ou de récompenser des services exceptionnels rendus au Canada, le gouverneur en conseil a le pouvoir discrétionnaire, malgré les autres dispositions de la présente loi, d'ordonner au ministre d'attribuer la citoyenneté à toute personne qu'il désigne; le ministre procède alors sans délai à l'attribution.
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| 14. (1) An application for
(a) a grant of citizenship under subsection 5(1),
(b) a retention of citizenship under section 8,
(c) a renunciation of citizenship under subsection 9(1), or
(d) a resumption of citizenship under subsection 11(1)
shall be considered by a citizenship judge who shall, within sixty days of the day the application was referred to the judge, determine whether or not the person who made the application meets the requirements of this Act and the regulations with respect to the application.
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14. (1) Dans les soixante jours de sa saisine, le juge de la citoyenneté statue sur la conformité -- avec les dispositions applicables en l'espèce de la présente loi et de ses règlements -- des demandes déposées en vue de_:
a) l'attribution de la citoyenneté, au titre du paragraphe 5(1);
b) la conservation de la citoyenneté, au titre de l'article 8;
c) la répudiation de la citoyenneté, au titre du paragraphe 9(1);
d) la réintégration dans la citoyenneté, au titre du paragraphe 11(1).
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| (2) Forthwith after making a determination under subsection (1) in respect of an application referred to therein but subject to section 15, the citizenship judge shall approve or not approve the application in accordance with his determination, notify the Minister accordingly and provide the Minister with the reasons therefor.
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(2) Aussitôt après avoir statué sur la demande visée au paragraphe (1), le juge de la citoyenneté, sous réserve de l'article 15, approuve ou rejette la demande selon qu'il conclut ou non à la conformité de celle-ci et transmet sa décision motivée au ministre.
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| (3) Where a citizenship judge does not approve an application under subsection (2), the judge shall forthwith notify the applicant of his decision, of the reasons therefor and of the right to appeal.
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(3) En cas de rejet de la demande, le juge de la citoyenneté en informe sans délai le demandeur en lui faisant connaître les motifs de sa décision et l'existence d'un droit d'appel.
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| (4) A notice referred to in subsection (3) is sufficient if it is sent by registered mail to the applicant at his latest known address.
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(4) L'obligation d'informer prévue au paragraphe (3) peut être remplie par avis expédié par courrier recommandé au demandeur à sa dernière adresse connue.
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| (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.
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(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.
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| (6) A decision of the Court pursuant to an appeal made under subsection (5) is, subject to section 20, final and, notwithstanding any other Act of Parliament, no appeal lies therefrom.
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(6) La décision de la Cour rendue sur l'appel prévu au paragraphe (5) est, sous réserve de l'article 20, définitive et, par dérogation à toute autre loi fédérale, non susceptible d'appel.
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| 15. (1) Where a citizenship judge is unable to approve an application under subsection 14(2), the judge shall, before deciding not to approve it, consider whether or not to recommend an exercise of discretion under subsection 5(3) or (4) or subsection 9(2) as the circumstances may require.
(2) Where a citizenship judge makes a recommendation for an exercise of discretion under subsection (1), the judge shall
(a) notify the applicant;
(b) transmit the recommendation to the Minister with the reasons therefor; and
(c) in accordance with the decision that has been made in respect of his recommendation, forthwith on the communication of the decision to the judge approve or not approve the application.
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15. (1) Avant de rendre une décision de rejet, le juge de la citoyenneté examine s'il y a lieu de recommander l'exercice du pouvoir discrétionnaire prévu aux paragraphes 5(3) ou (4) ou 9(2), selon le cas.
(2) S'il recommande l'exercice du pouvoir discrétionnaire, le juge de la citoyenneté_:
a) en informe le demandeur;
b) transmet sa recommandation motivée au ministre;
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Federal Court Act, R.S.C. 1985, c.F-7, as amended
| 21. The Trial Division has exclusive jurisdiction to hear and determine all appeals that may be brought pursuant to subsection 14(5) of the Citizenship Act.
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21. La Section de première instance a compétence exclusive en matière d'appels interjetés au titre du paragraphe 14(5) de la Loi sur la citoyenneté.
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Federal Court Rules, 1998, SOR/98/106
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| 300. This Part applies to
(a) applications for judicial review of administrative action, including applications under section 18.1 or 28 of the Act, unless the Court directs under subsection 18.4(2) of the Act that the application be proceeded with as an action;
(b) proceedings required or permitted by or under an Act of Parliament to be brought by application, motion, originating notice of motion, originating summons or petition or to be determined in a summary way, other than applications under subsection 576(1) of the Canada Shipping Act;
(c) appeals under subsection 14(5) of the Citizenship Act;
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300. La présente partie s'applique :
a) aux demandes de contrôle judiciaire de mesures administratives, y compris les demandes présentées en vertu des articles 18.1 ou 28 de la Loi, à moins que la Cour n'ordonne, en vertu du paragraphe 18.4(2) de la Loi, de les instruire comme des actions;
b) aux instances engagées sous le régime d'une loi fédérale ou d'un texte d'application de celle-ci qui en prévoit ou en autorise l'introduction par voie de demande, de requête, d'avis de requête introductif d'instance, d'assignation introductive d'instance ou de pétition, ou le règlement par procédure sommaire, à l'exception des demandes faites en vertu du paragraphe 576(1) de la Loi sur la marine marchande du Canada;
c) aux appels interjetés en vertu du paragraphe 14(5) de la Loi sur la citoyenneté;
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Part 5 includes Rules 301 to 334 inclusive.
[5] The appellant's primary submission is that the judge had "massive documentary evidence" before her that he had centralized his mode of living in Canada and that she erred by making a decision without regard to the material before her and by basing her decision on an erroneous finding of fact made in a capricious manner.
[6] Mr. Goudimenko says that the judge erred in finding, "He paid short visits to his parents in Canada from time to time, during the relevant period under consideration", when the evidence establishes that he stayed in Canada for extensive periods, specifically, 5 months in 1996, 42 days from December 1996 until January 1997, 7 months from May to December 1997 and 6 months from December 1997 to July 1998. Moreover, the appellant says that his absences accord with his studies and notes that he stayed in Canada for 13 months (exclusive of a 2-week visit to the United States) between his graduation from the Master's program and the beginning of his Ph.D. studies. With respect to the latter, the appellant submits that the judge erred when she found that, "On completing his Master's degree in 1998, he spent approximately 3 months in Canada where he taught at the Imperial College of Toronto (May-September) and returned to the U.S. to continue graduate work at the University of Florida in Miami." The appellant refers to various documents contained in the Citizenship Record that establish that he graduated from his Master's program in 1997 rather than 1998 and remained in Canada for 13 months (rather than 3 months) following graduation.
[7] Lastly, Mr. Goudimenko argues that the judge's conclusion that he presented no evidence with regard to special and unsual hardship constitutes yet another example of an erroneous finding without regard to the material before her. The appellant says that he was not informed of this provision nor was he asked to provide evidence in this respect. Further, he submits that there was evidence in his application that established that his situation merited the exercise of discretion. Specifically, the appellant, a citizen of Belarus, having been denied his request for a passport from Belarus in August 1998 due to his anticommunist publications, has therefore been "stateless" since that time. Since then, he has been a student in a foreign country and, as a stateless person, is not entitled to consular protection, is severely constrained in his ability to travel and may not be guaranteed the right to work, study or be protected against crime or illness by the host country. Mr. Goudimenko has been issued a Canadian Travel Document on compassionate grounds and submits that the citizenship judge failed to make the appropriate inquiry regarding whether his circumstances involved hardship. He alleges that the judge ignored the evidence presented at the hearing and contained in the record with respect to this issue.
[8] The respondent refers to paragraph 5(1)(c) of the Act and submits that it is the third criterion that is in issue, i.e. an applicant must have accumulated 3 years (1095 days) of residence over the 4 years preceding the date of the application. Recent jurisprudence emphasizes the need for substantial physical presence in Canada. Re Chow (1997), 40 Imm. L.R. (2d) 308 (F.C.T.D.) and Re Pourghasemi (1993), 62 F.T.R. 122. The respondent says although there are different formulations of the test for residency, the jurisprudence indicates that an applicant must demonstrate (i) that residence in Canada has been initially established in Canada at least 3 years prior to the application and (ii) the established residence has been maintained throughout that time. Re Papadogiorgakis, [1978] 2 F.C. 208 (T.D.); Canada (Secretary of State) v. Martinson (1987), 13 F.T.R. 237 and Canada (Minister of State, Multiculturalism and Citizenship) v. Shahkar, [1991] 1 F.C. 177 (T.D.). The aforementioned authorities also stand for the proposition that an intention to establish residence is insufficient; actual residence is required. Relief from the situation of the statutory requirements can be granted in a close case, only after an applicant has already established an extended and substantial presence in Canada. Re Papadogiorgakis, supra.
[9] The respondent's position is that the appellant's substantial absence from Canada is indicative that he had not "in mind and fact . . . centralized his ordinary mode of living with its accessories in social relations, interests and conveniences in Canada." The respondent refers to the judge's finding that the appellant remained in Canada only 5 days after landing before returning to the United States to pursue his studies. The appellant's indicia of residence, says the respondent, i.e. driver's licence, health insurance card, social insurance number, etc. address the central purpose of residence, to allow the appellant to experience Canadian life and thus become "Canadianized".
[10] Lastly, the respondent submits that the judge considered the six questions in Re Koo, [1993] 1 F.C. 286 (T.D.), and found that they were not helpful to the appellant as a result of his absences from Canada and his failure to establish residence prior to his initial departure. In summary, the respondent says that the appellant has not demonstrated that his mode of existence has been centralized in Canada or that Canada was the place where he customarily lived during the 4 years prior to his application. The application was therefore premature and the decision of the judge was well founded in fact and law.
[11] This is another of those situations where there exists every indication that the appellant would make an excellent Canadian citizen. Mr. Goudimenko's arguments, both written and oral, were prepared, thorough, organized, and comprehensive. It is apparent that he is a meritorious candidate for citizenship and very much wants to become a Canadian citizen. He exhaustively reviewed the case law and the evidence in his efforts to have the decision of the citizenship judge set aside. However, the same criteria are required to be met by all applicants regardless of a judge's opinion on the individual's qualities as a potential citizen. The requirements of the Act should be applied equally to all. Re Koo, supra.
[12] The appellant argued that the law is not applied equally to all and referred to the divergence of opinion in the Federal Court with respect to the centralized existence test (Re Koo, supra, which holds that absences may be deemed residence if an individual has centralized his existence in Canada) and the physical presence test (Re Pourghasemi, supra, which requires physical presence in Canada for the required number of days). Had the citizenship judge deemed his absences for school as residence, Mr. Goudimenko would have exceeded the requisite 1095 days of residence.
[13] The difficulty with the appellant's reasoning is that it fails to address the threshold issue, his establishment of residence in Canada. Unless the threshold test is met, absences from Canada are irrelevant. Canada (Secretary of State) v. Yu (1995), 31 Imm. L.R. (2d) 248 (F.C.T.D.); Re Papadorgiorgakis, supra; Re Koo, supra; Re Choi, [1997] F.C.J. No. 740 (T.D.). In other words, a two-stage inquiry exists with respect to the residency requirements of paragraph 5(1)(c) of the Act. At the first stage, the threshold determination is made as to whether or not, and when, residence in Canada has been established. If residence has not been established, the matter ends there. If the threshold has been met, the second stage of the inquiry requires a determination of whether or not the particular applicant's residency satisfies the required total days of residence. It is with respect to the second stage of the inquiry, and particularly with regard to whether absences can be deemed residence, that the divergence of opinion in the Federal Court exists.
[14] It has been held that judges of the citizenship court have generally tended to adopt the less restrictive view of residence. Canada (Minister of Citizenship and Immigration) v. Mindich (1999), 170 F.T.R. 148. It is evident from her correspondence dated February 14, 2001, paragraphs 4 and 5 of which are reproduced below, that the citizenship judge applied the Koo reasoning.
According to the evidence on your file and presented to me at the hearing, your absences from Canada total 476 days in the four years preceding your application for Citizenship (12 February, 1999). During this period you were physically present in Canada for 634 days. In these circumstances, you had to satisfy me, in order to meet the residence requirements, that your absences from Canada (or at least a part of these) could be counted as a period of residence in Canada.
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 evidence 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. I have therefore carefully examined your case to determine whether you had established residence in Canada prior to your absences such that those absences could nevertheless be counted as periods of residence.
[15] The questionnaire entitled "Reasons for Decision Regarding Residence" as well as the judge's notes are contained in the Citizenship Record, included as part of the appellant's Record. The following notations are instructive.
In assessing the quality of the applicant's connection with Canada, I note that the situation is not one in which there has been a lengthy period of residence. Prior to the relevant period covered by the application, 5 days in Canada before his first lengthy absence and short visits to his parents throughout the period covered by the application do not allow for the establishment of a residential base and a centralized mode of living in Canada - a requirement for Canadian citizenship ...
Pattern of physical presence indicate [sic] frequent visits to Canada not a returning home.
[16] The citizenship judge found that the appellant had not established residency. As a consequence, not having satisfied the threshold, regardless of the "residency" test applied, the appellant could not succeed.
[17] Is this result disturbed by virtue of an erroneous finding of fact? The appellant correctly states that the citizenship judge erred when she found that he spent approximately 3 months in Canada after completing his Master's degree in 1998. A review of the evidence reveals that the judge failed to appreciate that Mr. Goudimenko graduated from his Master's program in 1997 and returned to Canada for 13 months (exclusive of a brief two-week visit to the United States) between his M.A. graduation and the beginning of his Ph.D. studies in August 1998. The judge's finding in this respect was therefore erroneous. Notwithstanding, I conclude that the finding did not and could not have affected the result.
[18] The citizenship judge made a finding of fact that the appellant's initial 5-day stay after landing did not meet the threshold of establishing residence. There is no reason to interfere with that finding. It is reasonable to conclude that the judge would have been equally unimpressed with the appellant's subsequent visits, in early 1996, of 8, 5 and 8 days respectively. The first time that the appellant returned to Canada for more than 8 days, after landing, was from May 12 to September 2, 1996. However, assuming that the appellant established residency in Canada in either May 1996 or May 1997, does not assist the appellant because his application for citizenship was dated February 12, 1999. Thus, he could not come within the provisions of paragraph 5(1)(c) of the Act, for even the most liberal interpretation of the residency requirement would require the threshold to be met at least 3 years prior to the date of application. The error, not being material to the outcome, cannot affect the result. Patel v. Canada (Minister of Citizenship and Immigration), 2002 FCA 55; [2002] F.C.J. No. 178.
[19] While I have sympathy for the appellant, I find that the citizenship judge properly concluded that his application for Canadian citizenship was premature.
[20] The final issue is that of the citizenship judge's failure to recommend an exercise of discretion under subsections 5(4) and 15(1) of the Act. These sections provide that in circumstances where the citizenship judge is unable to approve a citizenship application the judge is required to consider whether or not to recommend an exercise of discretion. (emphasis added). The correspondence of February 14, 2001 states:
Pursuant to subsection 15(1) of the Citizenship Act, I have considered whether or not to make a recommendation for an exercise of discretion under subsection 5(4) of the Act which empowers the Governor in Council to direct the Minister to grant citizenship to any person in cases of special and unusual hardship or to reward services of an exceptional value to Canada.
Since you were unable to provide me with any evidence in that regard, I see no reason to make a recommendation ...
[21] The appellant takes exception to the judge's comment regarding the paucity of evidence particularly since he was not informed of the provision in question nor was he asked for evidence in this regard. Despite this, Mr. Goudimenko says there was evidence of special and unusual hardship.
[22] I do not share the appellant's interpretation of the citizenship judge's use of the word "any". The reference was to "any" evidence that might prompt her to make the recommendation. The citizenship judge considered the appellant's evidence relative to his being "stateless" and the travel constraints associated with such status or lack thereof. The judge concluded that, in her opinion, it was a matter of inconvenience [rather than hardship] for Mr. Goudimenko. The citizenship judge considered whether or not to recommend an exercise of discretion and declined to so recommend. That was all that was required of her. Although it is not necessary for me to do so, I adopt the comments of Madam Justice Reed in Re Koo, supra, where she states:
I do not see how a reviewing court could censor a citizenship judge for failing to recommend to the Minister that citizenship be granted pursuant to subsection 5(4) ... Given that the making of a recommendation is so highly discretionary, I am not convinced that the failure to make one is properly the subject of an appeal ... In the present case, the citizenship judge did not make a recommendation that the Minister act under subsection 5(4). I certainly would not criticize that decision.
[23] In the result, the appeal of the citizenship judge's refusal to grant Mr. Goudimenko Canadian citizenship is dismissed.
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Judge
Ottawa, Ontario
April 19, 2002
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