Date: 20100218
Docket: T-581-09
Citation: 2010 FC 177
Ottawa, Ontario, February 18,
2010
Present: The Honourable
Mr. Justice Harrington
BETWEEN:
ARONCE FERDILUS
Applicant
and
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Mr. Ferdilus is
originally from Haiti. He came to Canada as a permanent resident in 2002. In August 2006, he applied for
Canadian citizenship. The citizenship judge wrote that, had the provisions of
paragraph 5(1)(c) of the Citizenship Act been different, she
would not have hesitated to grant Mr. Ferdilus citizenship. This is the
judicial review of that decision.
[2]
Paragraph 5(1)(c)
of the Act reads as follows:
|
5. (1) The Minister shall grant citizenship to any person who
. . .
(c) is a
permanent resident within the meaning of subsection 2(1) of the Immigration
and Refugee Protection Act, and has, within the four years immediately
preceding the date of his or her 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;
|
5. (1)
Le ministre attribue la citoyenneté à toute personne qui, à la fois:
[…]
c) est un résident permanent au sens du paragraphe 2(1) de la Loi
sur l’immigration et la protection des réfugiés 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;
|
[3]
If Mr. Ferdilus had
been absent just 365 days, he would have undoubtedly met the requirements
of the Act. However, he was absent 771 days.
[4]
The citizenship judge
added the following:
[translation]
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.
[5]
In light of the facts
on file, she was not satisfied that Mr. Ferdilus had centralized his mode
of living in Canada. Consequently, she did not approve his
application, without prejudice to his right to make a further application based
on the four years preceding the date of the new application.
[6]
Mr. Ferdilus, who
was initially represented by counsel but who represented himself at the hearing,
clearly understood that I owe no deference to the citizenship judge if she made
an error of law but may allow the appeal against her conclusion that he had not
centralized his mode of living in Canada only if this finding
was unreasonable.
[7]
After arriving in Canada, Mr. Ferdilus spent more than two years here, with
the exception of short vacations. He obtained a diploma from the Université de
Sherbrooke. He then obtained a position with a Canadian non‑governmental
organization working in Mali. His contract was renewed twice, but
always on a temporary basis. He had no intention of settling in Mali, and, when
he went on vacation, he always returned to Canada.
[8]
The judge found that Mr. Ferdilus’s
vacations resembled visits more than returns home.
[9]
Mr. Ferdilus also
filed evidence of student loans, a warehouse receipt for furniture that he had
put in storage during his absence, and a bank statement. However, he did not
file any income tax returns, an omission that was noted by the citizenship
judge.
[10]
At the hearing, Mr. Ferdilus
explained that he had been told not to submit tax returns during his absence
and that he could do so upon his return. He stated that, had he known that the documents
submitted were insufficient, he could have filed others. Whatever the case may
be, his comments have no bearing on this appeal.
[11]
Unfortunately, three
lines of cases have developed in this Court regarding the definition of days of
residence for paragraph 5(1)(c) of the Citizenship Act.
[12]
According to one, Pourghasemi
(Re), [1993] F.C.J. No. 232, 62 F.T.R. 122, Justice Muldoon clearly
drew the line: if you are in the country, you meet the test; if you are not,
you do not.
[13]
According to another, Papadougiorgakis
(Re), [1978] 2 F.C. 208 (T.D.), a decision of Associate Chief Justice Thurlow
relying on a tax law concept, the citizenship judge must ask where the applicant
has “centralized his [or her] mode of living”. In that case, a person may leave
Canada temporarily, even for relatively extended periods.
[14]
Justice Reed developed
this theme in Koo (Re), [1993] 1 F.C. 286 (T.D.), and stated that the
test can be formulated two ways: whether Canada is the place where the applicant
“regularly, normally or customarily lives” or “whether Canada is the country in which he or she has
centralized his or her mode of existence”. She then set out six questions “that
can be asked which assist in such a determination”.
[15]
The last
two judgments cited above show that it is possible to be in Canada in spirit, if not in person. The choice
of approach is immaterial, for, in either case, the first step is to determine
whether the applicant has
centralized his or her mode of living in Canada.
[16]
The citizenship judge
found that Mr. Ferdilus had not established that he had centralized his
mode of living in Canada. That is therefore the end of the matter. Mr. Ferdilus
referred to a permanent resident’s rights and obligations (s. 28 of the Immigration
and Refugee Protection Act). Under section 28, a permanent residence
must be resident in Canada for at least 730 days during a five‑year
period, but subparagraph 28(2)(a)(iii) stipulates that the days spent
outside Canada employed by a Canadian business are
included as residence in Canada.
[17]
However, this provision
is not part of the Citizenship Act, which requires a centralized mode of
living in Canada.
[18]
When reviewing findings
of fact, the Court must show deference and cannot simply substitute its opinion
for that of the citizenship judge (Canada (Director of
Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R.
748 at para. 80). The Court may overturn a decision only when that decision
does not fall within “a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47).
Since the citizenship judge’s finding is not unreasonable, I must dismiss the
appeal, even if I might have come to a different conclusion.
[19]
In the exercise of my
discretion, there will be no order for costs.
ORDER
THE COURT ORDERS that:
1.
The application for
judicial review is dismissed.
2.
Without costs.
“Sean Harrington”
Certified true
translation
Tu-Quynh Trinh
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