Agha (Re), docket T-2711-97

Date: 19990428

Docket: T-2711-97

BETWEEN:

     IN THE MATTER OF THE CITIZENSHIP ACT,

     R.S.C. 1985, c. C-29

     AND IN THE MATTER OF an appeal from the

     decision of a Citizenship Judge

     AND IN THE MATTER OF

     Raza Ally Agha,

     Appellant

     REASONS FOR JUDGMENT

LEMIEUX J.:

INTRODUCTION

[1]      These reasons are concerned with an appeal dated December 4, 1997 by Raza Ally Agha, from a decision dated October 17, 1997 by Citizenship Judge Nicole Caron who refused to approve the appellant's application for Canadian citizenship.

[2]      The material part of Citizenship Judge Caron's decision reads as follows:

I found that you met all of the requirements for citizenship set out in the Citizenship Act, except for the requirement of residence. Under paragraph 5(1)(c) of the Act, an applicant is required to have accumulated at least three years of residence in Canada within the four years immediately preceding his or her application.

According to the evidence in your file and presented at your hearing, you came to Canada on April 7, 1993. You were granted permanent resident status on April 7, 1993. You filed for Canadian citizenship on September 3, 1996, and at that time, your absences from Canada totalled 890 days. In these circumstances, you had to convince me, in order to meet the residence requirements, that your absences from Canada, could be considered 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 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.

I carefully examined your case to determine if you established residence in Canada before your absences so that these absences could be considered as a period of residence; and if during your absences you maintained sufficient links with Canada. The facts lead me to the conclusion that you have not established nor maintained residence in Canada and therefore you do not meet the residence requirements.

[emphasis mine]

[3]      In addition, Citizenship Judge Caron did not make a recommendation that the Minister, in the exercise of ministerial discretion under section 15 of the Citizenship Act, R.S.C. 1985, c. C-29, waive, on compassionate grounds, the residency requirements nor did she make a recommendation that the Governor in Council direct the Minister to grant citizenship to the appellant as a person in special and unusual hardship or deserving reward because of services of an exceptional value to Canada. Citizenship Judge Caron indicated, in her decision, that she inquired at the hearing whether there were any circumstances that could justify such a recommendation. Citizenship Judge Caron noted the appellant was unable to provide her with any such evidence and, on this basis, saw no reason to make a recommendation to the Minister.

[4]      This appeal was heard by me in Halifax, Nova Scotia, on April 13, 1999 by way of trial de novo under rule 912 of the old Federal Court Rules, C.R.C. 1978, c. 663, as amended, and not under Federal Court Rules 1998, SOR/98-1006 which came into force on April 25, 1998 (the new Rules). Under the new Rules, paragraph 300(c) provides that Part V, dealing with applications, applies to citizenship appeals under subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29, as amended.

[5]      The reason for proceeding by way of trial de novo is because the appellant's appeal is dated December 4, 1997, before the new Rules came into effect (see Fai Alex Chan, court file T-2842-96, a decision of Rothstein J. (as he then was), dated May 25, 1998).

[6]      Mr. Raza was the only witness heard by me and was subject to cross-examination by the amicus curiae.

[7]      In his notice of appeal, Mr. Raza appealed on the following grounds:

Canadian law does not, in all circumstances, require a physical presence in Canada to meet residency requirements. I maintained a substantial connection to Canada since my arrival here and throughout my departures. I do meet residency requirements.

THE FACTS

[8]      The facts were established from the certified record or in viva voce testimony given by the appellant and on cross-examination by the amicus curiae.

[9]      Mr. Agha was born in Pakistan; he is a civil engineer and a businessman.

[10]      In Pakistan, Mr. Agha operated, since 1979, a construction business under the name Allied Construction which specialized in bridge construction. It was a private company with a few shareholders.

[11]      Mr. Agha had other business interests. He was the owner of construction equipment which he leased to Allied Construction. He owned two shops from which real estate brokerage operations were carried out. He owned some commercial real estate and had other investments.

[12]      Mr. Agha came to Canada on April 7, 1993 as a permanent resident qualifying in the entrepreneur class. He had liquidated his construction business in Pakistan. He was accompanied by his entire immediate family, namely, his wife and three sons. Upon his arrival in Canada, Mr. Agha and his family established themselves in the County of Halifax. A house was immediately bought with joint ownership between Mr. Agha and his wife. It was furnished and was the family's home.

[13]      He incorporated in the summer of 1993 a company under the name of Canpak International Ltd. whose business was house construction. In the summer and fall of 1993, Canpak purchased or leased seven residential lots in Dartmouth, N.S., and constructed five houses on those lots.

[14]      The certified record evidences some indicia of Mr. Agha's residency such as Canadian income tax returns, payment of real estate taxes, opening of bank accounts, making of investments, car ownership, driver's licence, social insurance number and application to the Association of Professional Engineers of Nova Scotia to be an engineer in training.

[15]      The certified record also indicates that the Agha family children entered Canadian schools and Canadian universities.

[16]      The 1993 construction project was not successful; it was described by Mr. Agha as a failure but there was no bankruptcy. The houses were not selling or were selling at a loss and the Agha family savings were tied up in that construction project.

[17]      Mr. Agha testified that the failure surrounding the 1993 construction project fundamentally affected his personal and financial stability. He testified he experienced, at that time, a severe depression and he could not provide for his family.

[18]      After discussion with his wife, he decided to return to Pakistan on December 6, 1993 because he had friends there who could help him medically and provide him with an opportunity to earn a living so that he could support his family who remained in Canada. The evidence also indicates Mr. Agha's other reason for going back to Pakistan was to sell assets there and settle financial matters.

[19]      Mr. Agha's Canadian business, Canpak International, was entrusted to Mr. Agha's eldest son when Mr. Agha decided to go to Pakistan.

[20]      Mr. Agha testified that, in Karachi, Pakistan, he did find support. He told me his former personal physician tracked the source of his medical problem and referred him to a psychiatrist in that city who was able to assist in his medical recovery which Mr. Agha says is just about complete now.

[21]      Mr. Agha said he contacted his former business partner in Allied Construction who made him manager, on a monthly fee basis, of a small twenty-two full-time person construction operation in Karachi known as Allied Associates. Mr. Agha told me he had no shares in that company and that he worked somewhat sporadically being absent from work due to his illness.

[22]      Mr. Agha's several absences from Canada and from his family were of long duration. On his first trip back to Pakistan, Mr. Agha was away from Canada from December 6, 1993 to November 26, 1994 when he returned to Canada for a period of approximately three weeks.

[23]      On his second trip back to Pakistan, Mr. Agha was away from December 12, 1994 to November 11, 1995 when he returned to Canada for a period of approximately five weeks.

[24]      On his third trip to Karachi, Mr. Agha was away from January 8, 1996 to July 17, 1996 when he returned for a two-month period.

[25]      On his fourth trip out, Mr. Agha was away from September 8, 1996 to April 11, 1997 when he returned for another three weeks.

[26]      Each time Mr. Agha left for Pakistan he was in possession of a returning resident's visa issued by the Canadian Government.

[27]      After April, 1997, Mr. Agha took a couple of short trips to Pakistan and since September, 1997, basically remained in Canada but, until recently, has not had much success in employment and business endeavours.

[28]      The assets owned by Mr. Agha in Pakistan when he came to Canada were:

(a)      quite a lot of construction equipment;

(b)      two shops;

(c)      two real estate lots;

(d)      a car;

(e)      he still owned the family home and stayed in it during his trips to Pakistan between 1993 and 1997. He told me the house is now up for sale and that it was not put up for sale before now because the real estate market in Karachi has not been very good.

[29]      Mr. Agha told me that on his return trips to Pakistan, he was engaged in selling off his remaining Pakistani assets and he has none there now but for the family home which is on the market. He still has links with his psychiatrist in Pakistan because of his medical history saying that he needs help from him from time to time.

[30]      Today, Mr. Agha's wife and three sons are Canadian citizens.

THE LAW

A.      Standard of Review

[31]      In Lam v. Canada, T-1310-98, March 26, 1999, Lutfy J. extensively canvassed the standard of review which should guide this Court in statutory citizenship appeal as distinct from judicial review proceedings under section 18 of the Federal Court Act and this in the context of the coming into force of the Federal Court Rules, 1998 which provides that such appeals now proceed by way of application under rule 300 and no longer by way of trial de novo.

[32]      While the case before me involves a trial de novo because Mr. Agha's appeal was filed before the coming into force of the new rules, Lutfy J.'s reasoning in Lam is most helpful.

[33]      As I see it, until Parliament passes the new Citizenship Act, whether the appeal proceeds by way of trial de novo or by way of application, the standard of review is correctness.

[34]      The correctness standard does not, however, eliminate the obligation on the appellant before this Court to convince it that the Citizenship Court made some mistake or error such as proceeding on a wrong principle, fundamentally misapprehending the facts or the decision was tainted for other compelling reasons requiring interference by this Court in the decision. On this view, it is not appropriate simply for this Court to substitute a new decision for that of the Citizenship Judge (see in Re Kerho (1988), 21 F.T.R. 180 at 184).

B. The residency Requirement Test

[35]      Lutfy J. in Lam analyzed the jurisprudence of this Court on the various shades adopted by this Court as to when the residency requirement under the Citizenship Act is met.

[36]      I agree with Lutfy J. and with Evans J. in Young v. Canada, T-408-98, March 16, 1999, that the dominant trend of the more recent jurisprudence of this Court has been to interpret the residency requirement in a manner reflected by Reed J. in Re Koo, [1993] 1 F.C. 286. That test is "whether it can be said that Canada is the place where the applicant 'regularly, normally and 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".

[37]      In Re Koo, Reed J. outlined some of the factors or questions that can be asked which assist in the determination of whether the test is met. They 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 it more substantial than that which exists with any other country?

[38]      In respect of factor (f) above, Reed J. said in Koo at page 294 the following:

In my view to allow physical absence to be treated as residence within the country for the purposes of obtaining citizenship, the quality of the person's connection with this country must demonstrate a primacy or priority of residence in Canada (a more substantial connection with Canada than with any other place).

[39]      In my view, the test in Koo properly places emphasis and importance on actual physical presence in Canada to meet the residency requirement under the Citizenship Act and gives effect to Parliament's intention of requiring, under paragraph 5(1)(c) of that Act, that an applicant for citizenship must have within the four years immediately preceding the date of his or her application, accumulated at least three years of residence in Canada.

[40]      Actual physical presence in Canada enables "the individual to become acquainted with what it is to be a Canadian, that is, to learn about one's rights and obligations as a citizen of Canada (see Re To (1997), 37 Imm.L.R., (2d) 274, a decision of Teitelbaum J.).

[41]      Muldoon J. in Re Pourghasemi (1993), 19 Imm.L.R. (2d) 259, expressed the purpose of paragraph 5(1)(c) of the Act as follows (at page 260):

It is clear that the purpose of para. 5(1)(c) is to ensure that everyone who is granted precious Canadian citizenship has become, or at least has been compulsorarily 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.

[42]      The Koo test, while emphasizing the actual physical presence factor, recognizes that, in appropriate circumstances, physical absence from Canada can still be counted as residence for the purposes of the Act.

[43]      This proposition was clearly established in Re Papadogiorgakis, [1978] 2 F.C. 208, a decision of Thurlow A.C.J., where he said at pages 213-14 as follows:

It seems to me that the words "residence" and "resident" in paragraph 5(1)(b) of the new Citizenship Act are not as strictly limited to actual presence in Canada throughout the period as they were in the former statute but can include, as well, situations in which the person concerned has a place in Canada which is used by him during the period as a place of abode to a sufficient extent to demonstrate the reality of his residing there during the material period even though he is away from it part of the time....

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 in 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".

[44]      There is another aspect to the Koo test with its focus on Canada being the place where the applicant "regularly, normally and customarily lives" when balanced with or assessed against the accepted jurisprudence that physical absences from Canada may count for residency purposes under the Citizenship Act.

[45]      The Koo test, in my view, compels the Citizenship Judge to carefully examine the nature, purpose, extent and all of the circumstances surrounding the physical absence from Canada in order to find out the true nature of the applicant's connection, commitment and ties with Canada.

[46]      In this perspective, the Koo test focusses the inquiry on the substantive indicia of residence in Canada as contrasted with less meaningful factors such as holding bank accounts, making investments, making rental payments (or being the owner of a condo), owning furniture, having a driver's licence or health card and filing income tax returns.

APPLICATION OF THE TEST IN THIS CASE

[47]      The reasons of Citizenship Judge Caron are set out in paragraph 2 above. They do not contain any factual analysis whatsoever of the certified record or what transpired at the hearing.

[48]      The Koo test compels a Citizenship Judge to carefully examine the nature, purpose, extent and all of the circumstances surrounding physical absence from Canada to determine the true nature of an applicant's centralized mode of living in Canada.

[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.

[50]      According to the jurisprudence, the burden which Mr. Agha had to meet in this case was to demonstrate by objective facts two separate and distinct connections with Canada:

(a)      first, that he had established a centralized mode of living in Canada before his physical absences from Canada; and

(b)      second, notwithstanding his physical absences from Canada, he had in fact maintained a centralized mode of living in Canada.

A. Establishment

[51]      I have no difficulty in reaching the conclusion that Mr. Agha established a centralized mode of living in Canada between April 7, 1993 and December 1993 when he left Canada and returned to Pakistan for the first time.

[52]      The principal factors leading to my conclusion are:

(i)      his coming to Canada with all of his immediate family;

(ii)      the immediate establishment of a business in Canada in which he was the Chief Executive Officer and in which he invested considerable financial resources;

(iii)      the taking of concrete steps to operate in Canada and give reality to that business;

(iv)      the purchase of the family home in the joint name of he and his wife;

(v)      the family's integration in the Canadian community including his children's schooling arrangements and his first steps to be licensed as a civil engineer in Nova Scotia;

(vi)      the other "normal" indicia of residency, i.e. bank accounts, filing of income tax returns, driver's licence, social security number, etc.;

(vii)      the substantial, albeit not complete severance of his ties in Pakistan.

[53]      I am persuaded that Mr. Agha established a residency in Canada with the intention of maintaining permanent roots in this country. Primacy of residence was Canada.

B. Maintenance

[54]      The next question is whether Mr. Agha, throughout the relevant three-year period, maintained some real and tangible form of connection and residence in Canada. Put another way, did the primacy or priority of Mr. Agha's residence shift from Canada to Pakistan such that he had a more substantial connection to Pakistan than in Canada.

[55]      The objective facts supporting Mr. Agha's maintenance of residence in Canada are clearly very much weaker than those which supported his establishment of residence in Canada phase of the inquiry.

[56]      The reason this is so is because, in many aspects, the focus of Mr. Agha's life had shifted back to Pakistan recognizing however that his wife and sons remained in Canada.

[57]      Mr. Agha found employment in Pakistan, his medical needs were being met there. When in Karachi, he resided in the old family home. Mr. Agha's absences from Canada were lengthy and extensive as evidenced by the fact that during the first twenty-four months after leaving Canada, Mr. Agha returned to Canada only twice for brief visits.

[58]      Examining all of the circumstances of Mr. Agha's case, I am satisfied that Mr. Agha's connection with Canada was more substantial than in Pakistan so as to satisfy the maintenance of residence phase of this inquiry even though his links to Pakistan were important. I do so for the following reasons:

(a)      Mr. Agha's absences in Pakistan were not as a matter of choice and voluntary in nature. They were compelled by the failure of his real estate venture in Canada, by the need to find meaningful employment in order to support his family and by the need to wind up his remaining affairs in Pakistan. In saying this, I do not discount the fact that Mr. Agha made a voluntary choice in terms of medical advisors.

(b)      Mr. Agha's absences were temporary. He had to get back on his financial and medical feet and sell off his remaining assets in Pakistan, including his family home. He did that; he made no new investments in Pakistan; he always had a Canadian returning visa when he exited Canada; he sold all but one remaining asset.

(c)      The temporary nature of Mr. Agha's absences is demonstrated by the fact that, since September 1997, he has basically lived in Canada. I am entitled to take into account the period of time between the appeal and the date of hearing (see Re To, (supra), and Wang v. Canada, T-1881-98, April 1, 1999, Reed J.) for the limited purpose of verifying the nature of the absences. Clearly, such time period cannot be counted for the purpose of meeting the three-year requirement under paragraph 5(1)(b) of the Act. This time period must be calculated prior to the citizenship application.

(d)      Mr. Agha's family always remained in Canada. As Dubé J. expressed it in Re Huang (1997), 37 Imm.L.R. (2d) 113 at 116:

The most eloquent indicia of residency is the establishment of a person and his family in this country, coupled with a manifest intention of making the establishment their permanent home.

     [emphasis mine]

CONCLUSION

[59]      In my view there were exceptional and special circumstances surrounding Mr. Agha's physical absences from Canada justifying the taking into account of those absences for purposes of the residency requirement under the Citizenship Act. Those circumstances directly arose from the lack of success of his Canadian business venture when he came to Canada, the need to get back on his feet which could best be accomplished in Pakistan and the need to settle his remaining affairs there.

[60]      This case resembles Re Leung (1998), 42 Imm.L.R. (2d) 161 as contrasted for example from Choi v. Canada, T-304-98, March 30, 1999, a decision of Blais J. who held on the facts before him that the applicant lived in Hong Kong and occasionally returned to Canada to visit his family.

[61]      The appeal is allowed.

     François Lemieux

    

     J U D G E

OTTAWA, ONTARIO

APRIL 28, 1999