Date: 20100715
Docket: T-2032-09
Citation: 2010 FC 748
Vancouver, British Columbia, July 15, 2010
PRESENT: The
Honourable Madam Justice Tremblay-Lamer
BETWEEN:
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Applicant
and
ALVAR RICHARD ANDERSON
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an appeal by the Minister of Citizenship
and Immigration (the “Minister”) pursuant to subsection 14(5) of the Citizenship
Act, R.S.C. 1985, c. C-29, from the decision of a citizenship judge, dated October
7, 2009, approving the application for Canadian citizenship made by Alvar
Richard Anderson.
BACKGROUND FACTS
[2]
The Respondent is a citizen of the United Kingdom. He became a permanent
resident of Canada in 1975. His
wife and children are Canadian citizens.
[3]
In 1992, the Respondent started working as a
missionary in Guatemala. He
applied for Canadian citizenship on June 4, 2008, and indicated that during the
period from June 4, 2004 to June 4, 2008, he had been absent from Canada for 776 days, which he mostly spent
in Guatemala.
DECISION
UNDER APPEAL
[4]
The citizenship judge referred to and applied
the test developed by
Justice Reed in Koo (Re),
[1993] 1 F.C. 286, (1992) 19 I.L.R. (2d) 1 (F.C.T.D.), asking himself whether Canada is “the country in which the [Respondent]
has centralized his … mode of existence.”
[5]
On the first element of that test, physical
presence in Canada prior to more recent absences, the citizenship judge found
that the Respondent “lived and worked in Canada for over 17 years before his first lengthy absence. His periodic
absences as a missionary preceded and later coincided with the statutory period
in sharp contrast to his earlier firm establishment on Canadian soil.”
[6]
On the second element, the situation of the
Respondent’s immediate and extended family, the citizenship judge noted that
the Respondent’s wife, children, and grandchildren are Canadian citizens and
residents, although his wife accompanies him on missionary trips. He concluded
that his “family ties are strong and almost entirely Canadian.”
[7]
On the third element, the pattern of physical
presence in Canada, the
citizenship judge concluded that “[T]he [Respondent’s] home has been in Canada since 1975, to which he returns
between missionary assignments.” He found “no indication of any act or intent
to establish a home outside of Canada.”
[8]
On the fourth element, the extent of the
Respondent’s absences from Canada, the citizenship judge recognized that these were “considerable.”
[9]
On the fifth element, the cause of the physical
absence, the citizenship judge found that the Respondent’s “missionary work is
temporary in nature and there is no indication that he has or intends to take
any steps to establish a home outside of Canada. His intention to retire in the Creston
Valley is entirely credible and consistent with his
past behaviour and existing family and social ties.”
[10]
Finally, on the sixth element of the test, the
quality of the Respondent’s connection with Canada, the citizenship judge noted that the Respondent’s missionary work
“include a strong aid component,” and is thus a “contribution to less fortunate
lands considered to be a hallmark of good Canadian citizenship.” He further
noted that the Respondent paid Canadian income tax and contributed to the
Canada Pension Plan, had active Canadian bank accounts, a health card and a
driver’s licence. The citizenship judge concluded that the Respondent had
“strong and long standing family and social ties to Canada, which will only strengthen over time as his family continues to
grow and he retires from active missionary and humanitarian duties.”
[11]
Thus the citizenship judge found that “in spite
of considerable absences during the statutory period, the [Respondent] has
sufficiently centred his mode of existence in Canada to meet the residence requirements of the Citizenship Act.”
ANALYSIS
[12]
It is well-established that so long as a
citizenship judge applies one of the residence tests articulated by this Court,
his or her application of the chosen test to the facts of a citizenship
application is reviewable on a standard of reasonableness (see e.g. Lam v. Canada (Minister of
Citizenship and Immigration), 164 F.T.R. 177, [1999] F.C.J. No. 410; Canada
(Citizenship and Immigration) v. Mueller, 2009 FC 1066).
[13]
The Minister submits that the citizenship
judge’s decision in the case at bar is unreasonable. The Respondent has not
filed either a notice of appearance or a memorandum of fact and law, and did
not appear at the hearing.
[14]
The Minister takes issue with the citizenship
judge’s conclusion that the Respondent had “firmly established” himself in Canada. He notes that between June 4, 2000
(that is, four years before the beginning of the relevant period for
establishing residence under subsection 5(1) of the Citizenship Act) and
the end of the relevant period, the Respondent was only present in Canada for 903 days – well short of the
1095 required by the Citizenship Act.
[15]
The Minister also attacks the citizenship
judge’s conclusion that the Respondent’s pattern of presence in Canada is that of a person returning home.
In this respect, he notes that the Respondent does not own a house in Canada, where he stays at his mother-in-law’s
residence, but “does own a small house in Guatemala.”
[16]
As to the extent of the Respondent’s absences
from Canada, the Minister submits that the citizenship judge “failed to conduct
any analysis or provide any reasons as to how [the Respondent] had established
sufficient ties to Canada to
overcome this considerable shortcoming,” thus committing a reviewable error.
[17]
The Minister further submits that the
citizenship judge’s conclusion that the Respondent’s absences were temporary is
unreasonable. In his view, the Respondent’s absences were “structural in
nature,” “for the purpose of living and working in Guatemala.” There was no documentary evidence to show otherwise. The
citizenship judge erred by taking into account the Respondent’s future
intention to return to Canada.
[18]
The Minister also contends that the citizenship
judge erred in evaluating the quality of the Respondent’s connection to Canada. The nature of his work in Guatemala is, according to the Minister,
irrelevant for this purpose. The fact that the Respondent has a bank account
and pays taxes here are insufficient to demonstrate a substantial connection to
Canada; these are mere “passive
indicia” of residence and do not show that the Respondent reached out to the
Canadian community.
[19]
Finally, the Minister submits that the
citizenship judge erred by allowing the Respondent to “‘bootstrap his way into
residency by reference to the conduct of other members of his family.”
[20]
I do not agree with the Minister’s arguments for
the following reasons.
[21]
The citizenship judge could reasonably conclude
that, having spent 17 years in Canada before beginning his missionary work in Guatemala, the Respondent had firmly established himself in this country. The
citizenship judge rightly looked at the totality of the facts and I see no
reason to interfere with his conclusion on this point.
[22]
I also reject the Minister’s argument that the
Respondent’s “home” is in Guatemala and not in Canada because he owns a house
in the former country but not in the latter, although it would have been
preferable for the citizenship judge to address this fact in his reasons. It is
clear that the citizenship judge found that the Respondent’s work in Guatemala was temporary. I do not think
unreasonable to conclude that owning what the Minister himself describes as “a
small house” is not indicative of intent of making that house “home.” Nor do I
think it unreasonable to conclude that one is at “home” at the residence of a
close family member, who allows one to live there free of charge in support of
one’s charitable work. The Citizenship Act does not provide for a property
test for naturalization, and the citizenship judge did not err by not imposing
one on the Respondent.
[23]
I also cannot accept the Minister’s
submission that the citizenship judge erred in taking the Respondent’s
intention to retire in Canada
into account in concluding that his absences were temporary in nature. I note that in Koo, above, at p. 294, Justice Reed
specifically cited “employment as a missionary abroad” as an example of “a
clearly temporary situation.” In both cases on which the Minister relies,
Canada (Citoyenneté et Immigration) v. Ntilivamunda, 2008 FC 1081, 302 D.L.R. (4th) 345, and Canada (Citizenship and
Immigration) v. Ryan, 2009 FC 1159, the court made it clear that the
citizenship applicant’s re-establishment in Canada was a remote or even
hypothetical prospect. It was indeed nothing more than an intention, and as
such was irrelevant. (See also Canada (Minister of Citizenship and Immigration) v. Xia, 2002 FCT 453, [2002] F.C.J. No. 613 at par. 23, where Justice Gibson held that “[t]he respondent’s
‘hopes’ are hardly relevant.”) In the present case, however, the Respondent had
not only the intention or the hope to return to Canada, but a settled plan for doing so. He
provided a note to the citizenship judge, explaining that he and his wife were
training the people who were due to replace them, and that they planned their
definitive return to Canada for the fall of 2009 (see p. 12 of the
Tribunal Record). It was open to the citizenship judge to find that the
Respondent’s “intention to retire in the Creston Valley is entirely credible and
consistent with his past behaviour and existing family and social ties.”
[24]
His conclusion
that the Respondent’s absence was temporary is thus not unreasonable. This case
is unlike Canada (Citizenship and Immigration) v. Chatterjee, 2009 FC
1069, [2009] F.C.J. No. 1327, in which the citizenship judge’s finding “that the
Respondent always returned to Canada for vacations … seem[ed] to be the
only foundation for his conclusion that the Respondent continued to call Canada
home during her long absence” (par. 19; emphasis in the original). In the case
at bar, the Respondent’s returns to Canada were not
mere vacations, and his ties to Canada were much
more extensive than those of Ms. Chatterjee.
[25]
I also find that the citizenship judge’s
assessment of the quality of the Respondent’s connection with Canada is reasonable. The Minister’s main
argument on this point is that he did not reach out to the Canadian community. Yet
the citizenship judge found that the Respondent “has … been active in the Wyndell Community Church,” and indeed he had before him a letter from the Church, a regular
attendee and occasional preacher there (see p. 54 of the Tribunal Record). Even
if one accepts Justice Gibson’s view, expressed in Xia, above, at par.
26, that “there should be before a Citizenship Judge some
evidence that would demonstrate a reaching out to the Canadian community,” such
evidence was before the citizenship judge in the case at bar.
[26]
Thus, the citizenship judge had sufficient
evidence before him to reasonably conclude that the Respondent met the test set
out in Koo, above, and had established and maintained residency in Canada so as to be eligible for Canadian
citizenship. Contrary to the Minister’s assertion, he did not need to
“bootstrap” the Respondent’s application to his family members’ Canadian
citizenship. In short, the Minister invites this Court to re-weigh the
evidence so as to arrive to a conclusion contrary to that of the citizenship
judge. Mindful of the Supreme Court’s caution, in Dunsmuir v. New-Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, at par. 47, that “certain
questions that come before administrative tribunals do not lend themselves to
one specific, particular result [and] may give rise to a number of possible,
reasonable conclusions,” I cannot do so.
CONCLUSION
[27]
In my view the citizenship judge’s decision is
transparent, intelligible, and justified, and a possible outcome in view of the
facts and the law; in short, it is reasonable (Dunsmuir, ibid.,). For these reasons, the appeal is dismissed.
JUDGMENT
THIS COURT ORDERS that the appeal be dismissed.
“Danièle
Tremblay-Lamer”
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