Date: 20021016
Docket: T-1680-01
Neutral citation: 2002 FCT 1078
Ottawa, Ontario, October 16, 2002
Before: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Plaintiff
and
ROLAND KOUASSI AMOUSSOUGA-GÉRO
Defendant
REASONS FOR ORDER AND ORDER
[1] By his application for judicial review the Minister of Citizenship and Immigration asked the Court to quash a decision by Barbara Seal to recognize that the defendant met the prerequisites for Canadian citizenship.
POINTS AT ISSUE
[2] Should the citizenship judge's decision be quashed?
[3] I do not think so, for the following reasons.
STANDARD OF REVIEW
[4] I adopt the reasoning of Lutfy J. in Lam v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 177, [1999] F.C.J. No. 410, para. 33 (F.C.T.D.) (QL):
The appropriate standard, in these circumstances, is one close to the correctness end of the spectrum. 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. [My emphasis.]
FACTUAL BACKGROUND
[5] The defendant obtained landing in Canada on October 10, 1996, and came here on February 12, 1994. He was born in Benin and arrived in Canada as a citizen of Togo. On January 12, 2000, three years and three months after landing in Canada, he submitted his citizenship application.
[6] The defendant's wife came to Canada in January 1994 as a refugee from Haiti. The defendant's son, Rolik, was born in Canada in 1995 and the couple also has a daughter, Charlotte, who attends a private secondary school in Montréal. The defendant has no other family apart from some brothers and sisters abroad.
[7] In October 1996 the defendant was appointed, while residing in Montréal, by the United Nations (hereinafter "the UN") to serve as legal advisor and director of the Witness Protection Program at the International Criminal Tribunal for Rwanda (hereinafter "ICTR"). That tribunal had just been created following atrocities which occurred in Rwanda in 1994. The tribunal was established at Arusha in Tanzania.
[8] The original contract was from year to year, subject to renewal. The contract also included home leave to enable the defendant to return periodically to his family in Canada, and provided that at the end of his engagement he would return to Canada. The defendant did his work under the supervision of the chief counsel for the ICTR, Louise Arbour J., now a member of the Supreme Court of Canada.
[9] In November 1996 the defendant bought a house at St-Hubert, a suburb of Montréal. That house was subject to a mortgage with a Montréal bank, where the defendant had bank accounts.
DECISION AT ISSUE
[10] Ms. Seal decided on August 1, 2001, that the defendant met the residence requirement mentioned in paragraph 5(1)(c) of the Citizenship Act (hereinafter "the Act"). She stated that the defendant had centralized his ordinary mode of existence in Canada so that his periods of absence from Canada could be counted in order to make up the three years of residence in a four-year period required for becoming a citizen.
[11] In her reasons the judge listed 14 examples of the ties the defendant had established with Canada:
Applicant's ties to Canada are substantial.
A. Mr. Amoussouga-Gero states that it was as Canadian (sic) resident that he was recruited to work at the ICTR which has a quota system for each of its member countries. While in Tanzania Applicant had many social interactions with Canadians. They celebrated St-Jean Baptiste Day, Canada Day and Canadian Thanksgiving and Christmas with "our compatriots from Canada". In fact in several of the documents provided in this file, one can see that applicant's home was referred to as "the Canadian house". It was in this "Canadian house" that Applicant hosted and gave help to many Canadian citizens.
B. Applicant files income tax in Canada.
C. Owns a home in Canada on which he pays municipal and school tax.
D. Has bank accounts and credit card accounts in Canada.
E. His salary is deposited directly to his Canadian bank account.
F. His son was born in Canada in 1995.
G. Place of leave from United nations (sic) is Canada and he always returns home when possible.
H. Applicant has many Canadian friends and Associates. For example, Me Jean François Fiset, me (sic) Claude Bouchard, Me Claude Mallette, Me Benoit Henry, Mr. Tim Morson, Mr. Koffi Mawali, Emanuel Dorgbley and Janet Van Der Vink, L.L.B. (Please refer to affidavits on file)
I. Applicant's wife and two children live and attend school and social, athletic and cultural activities in Canada.
J. Even when away, most of Applicant's belongings remain in Canada.
K. Applicant has his personal doctor and dentist in Canada. He had major surgery at Notre-Dame Hospital in 1996.
L. Applicant's wife and children have doctor, pediatrician and dentist in Canada.
M. Applicant is on staff of the Lester B. Pearson Canadian International Peacekeeping Training Center (Nova Scotia).
N. Applicant and his family have a perfect knowledge of Canada's two official languages.
ANALYSIS
[12] The plaintiff submitted Chen v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1229, in which Nadon J. as he then was, dissented from the opinion written by Lutfy J. in Lam, supra, holding that the only test for citizenship was physical presence of 1,095 days.
[13] The plaintiff further argued that the six tests laid down by Reed J. in Koo (Re), [1993] 1 F.C. 286 (T.D.), were not met by the defendant in the case at bar. At p. 293 of her decision Reed J. asked the following questions:
The conclusion I draw from the jurisprudence is that the test is whether it can be said that Canada is the place where the applicant "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 applicant's immediate family and dependants (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 applicant 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 temporary employment abroad?
(6) what is the quality of the connection with Canada: is more substantial than that which exists with any other country? [Emphasis in original.]
[14] For example, the plaintiff contended that Ms. Seal's decision should be quashed because the defendant had spent at most 117 days in Canada during the relevant period.
[15] Ms. Seal further considered the period between 1994 and 1996, that is outside the relevant time, in counting the number of days which a person must spend in Canada in order to obtain citizenship.
[16] The plaintiff submitted that each time the defendant returned to Canada it was only to visit his family or to take a vacation.
[17] With supporting case law, the plaintiff filed judgments of this Court indicating that, for example, the mere fact of paying taxes or having a bank account in Canada did not suffice to show that ties had been created with this country.
[18] Despite this brilliantly argued submission, I concur in the argument of counsel for the defendant that the plaintiff had established before Ms. Seal that he had centralized his mode of living in Canada.
[19] A citizenship judge may adopt one trend or another of this Court's decisions (see Canada (Minister of Citizenship and Immigration) v. Araksia (1999), 2 Imm. L.R. (3d) 293, [1999] F.C.J. No. 1437, para. 6, (F.C.T.D.) (QL)).
[20] In In re the Citizenship Act and in re Antonios E. Papadogiorgakis, [1978] 2 F.C. 208 (T.D.), Thurlow C.J. said at para. 16:
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". [My emphasis.]
[21] The courts have also recognized that a citizenship judge may refer to the period before the four years specified in the Act.
[22] In the case at bar it is important to mention that the defendant's contract was renewed from year to year. Mr. Amoussouga-Géro even arranged for his wife and children to come to Tanzania for an approximate period of one year and a half. However, in Badjeck v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1301, Rouleau J. said the following at para. 40:
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. [My emphasis.]
[23] I consider that that case is very similar to the one at bar.
[24] Further, one should keep in mind that the defendant was recruited by the UN when he was in Montréal, and in his contract each time he could do so, he returned to his home in Canada as indicated by Ms. Seal in her decision, at p. 9 of the plaintiff's book 1:
The terms of his one-year contract subject to renewal included home leave to Canada, as well as return to Canada at the end of his assignment. [My emphasis.]
[25] During the relevant period the defendant always maintained assets in Canada, kept a circle of friends, and while he was abroad was to some extent seen as a de facto ambassador on certain Canadian holidays, such as Saint-Jean-Baptiste and Canada Day.
[26] For all these reasons, therefore, I conclude that Ms. Seal's decision was correct and supported by persuasive evidence.
[27] The application for judicial review is accordingly dismissed.
ORDER
THE COURT ORDERS that the application for judicial review be dismissed.
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"Michel Beaudry"
Judge
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Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
FILE: T-1680-01
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION
and
ROLAND KOUASSI AMOUSSOUGA-GÉRO
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: September 17, 2002
REASONS FOR ORDER BY: BEAUDRY J.
DATED: October 16, 2002
APPEARANCES:
Daniel Latulippe FOR THE PLAINTIFF
Benoît Palmer FOR THE DEFENDANT
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE PLAINTIFF
Deputy Attorney General of Canada
Montréal, Quebec
Benoît Palmer FOR THE DEFENDANT
Joli-Coeur, Lacasse, Geoffrion, Jetté, St-Pierre
Montréal, Quebec
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