Docket: T-752-11
Citation: 2012
FC 394
Ottawa, Ontario, April 4,
2012
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Applicant
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and
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RUSHAD TEHEMTON UDWADIA
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Overview
[1]
Dr.
Udwadia arrived in Canada from India on April 21, 2004 and
was granted permanent resident status. He was accompanied by his wife and two
children. Dr. Udwadia is a general surgeon who trained in Mumbai, India,
where he is still a professor of surgery.
[2]
In
2009, Dr. Udwadia applied for Canadian citizenship. A citizenship judge
determined that he met the requirements of the Citizenship Act, RSC
1985, c C-29, and granted his application.
[3]
The
Minister of Citizenship and Immigration argues that the citizenship judge’s
decision should be overturned because he wrongly concluded that Dr. Udwadia had
fulfilled the statutory requirement that he reside in Canada for three out of
the four years preceding his application.
[4]
Dr.
Udwadia concedes that he was only in Canada for 717 days during the
relevant period; however, he maintains that he had made Canada his home and
that the time he spent outside of Canada should be counted in
his favour.
[5]
In
my view, the citizenship judge wrongly concluded that Dr. Udwadia met the
residency requirement of the Citizenship Act. Therefore, I must allow
the Minister’s appeal. Dr. Udwadia will have to re-apply.
[6]
The
sole issue is whether the citizenship judge correctly applied the residency
requirement.
II. The Factual Background
[7]
The
relevant period for assessing Dr. Udwadia’s residence in Canada is from
February 12, 2005 to February 12, 2009. Dr. Udwadia was in Canada with his
family for six weeks between April and June 2004, while exploring the
requirements he would have to meet in order to practise as a general surgeon in
Canada. He then
left Canada to study for
and take the required examinations. He returned with his family in May 2005,
when he learned from the BC College of Physicians and
Surgeons that he would have to write two more exams. He wrote one of them, and
then returned to India with his family in June 2005. He returned to Canada again between
November and December 2005, and again between January and March 2006, in order
to complete more assessments and examinations.
[8]
During
the relevant four-year period, which amounted to a total of 1460 days, Dr.
Udwadia was physically present in Canada for only 717 days. He
was absent for 743 days, falling well short of the three-year (1095-day)
statutory residency requirement.
[9]
Dr.
Udwadia declared 20 absences from Canada during the relevant
time frame. He returned to India repeatedly to maintain his professional
qualifications. He claims that those trips, in effect, were required by the BC College of Physicians and
Surgeons.
[10]
Dr.
Udwadia’s family lived with him intermittently throughout the relevant period.
The longest stretch was from August 2006 to July 2007, when his children
attended school in North Vancouver. However, his wife then had to return to India to care for
his parents, and the children returned with her.
[11]
Since
September 2007, Dr. Udwadia has lived in a condominium in North
Vancouver.
He began paying taxes in Canada in 2006 and his tax returns show a
steadily increasing Canadian income, reaching $92,483 in 2008. He has a bank
account in North
Vancouver,
which contains savings in excess of $300,000.
III. The Citizenship Judge’s
Decision
[12]
The
judge purported to apply the residency test from Koo (Re), [1993] 1 FC
286 (TD); that is, “Is Canada the place where the applicant regularly,
normally, or customarily lives?” or “Is Canada the country in which the
applicant has centralized his or her mode of existence?”
[13]
The
judge considered the following six questions:
1. Was
the individual physically present in Canada for a long period prior
to recent absences which occurred before the application for citizenship?
[14]
The
judge noted that from February 12, 2004 to August 24, 2006, Dr. Udwadia was out
of the country for 389 days. From August 26, 2006 to February 12, 2009, he was
absent for another 328 days. Most of his absences were for trips to Mumbai to
maintain his surgical skills.
2. Where
are the applicant’s immediate family, dependants and extended family resident?
[15]
Dr.
Udwadia’s family lived in Canada for one year from August 2006 to July
2007. Before and after that time, they were in Canada for shorter
periods. They returned to Mumbai in July 2007. Since then, his family has
returned to Canada two or three
times a year. The family plans to reside in Canada once Dr.
Udwadia has set up practice here.
3. Does
the pattern of physical presence in Canada indicate a returning
home or merely visiting the country?
[16]
Since
August 2006, Dr. Udwadia has spent most of each year in Canada, returning
to Mumbai only to maintain his surgical skills. He does not maintain a home in
Mumbai; he stays with his wife’s parents. Dr. Udwadia and his wife transferred
the bulk of their assets to Canada in 2006, and purchased a condominium in North
Vancouver
in 2007. Dr. Udwadia lives in the condominium, which is mortgage-free.
4. What is the extent
of the physical absence?
[17]
Dr.
Udwadia’s physical absences during the relevant period were substantial.
However, the percentage of his time in Canada has been
increasing steadily.
5. Is the physical
absence caused by a clearly temporary situation?
[18]
The
judge noted that, once Dr. Udwadia passes the necessary examinations, he will
not need to return to Mumbai as often. He plans to bring his family to Canada and has
insisted that his children learn French.
6. What is the quality
of the connection with Canada?
[19]
Dr.
Udwadia has tried to obtain the necessary qualifications to practice as a
general surgeon in BC. He has been working at the New Westminster Vein Clinic
for four years, and has paid taxes and acquired property in BC. The judge was
satisfied that, once Dr. Udwadia had established a practice here, his family
would join him. In the meantime, his family comes to see him as much as
possible. Dr. Udwadia’s property and professional life is centralized in Canada.
[20]
The
judge concluded that Dr. Udwadia had centralized his life in Canada, and that
his connection with Canada is greater than with any other country.
IV. Did the Citizenship Judge
Correctly Apply the Residency Requirement?
[21]
In
my view, the issue of residency involves the application of a two-step test.
The judge must first decide whether the applicant has established a residence
in Canada. If so, the
next question is whether the applicant has met the required total days of
residence. The analysis in Koo, above, applies to the second step.
[22]
Here,
the judge failed to answer the first question. The applicant’s residence in
Canada “commenc[ed] at the point in time when he could be said to have
established his residence in Canada” (Canada (Minister of
Citizenship and Immigration) v Nandre, 2003 FCT 650, at para
23). The citizenship judge must determine when that was.
[23]
The
earliest date on which Dr. Udwadia’s residency in Canada could have
commenced would have been August 2006 when he began working full-time at the
Vein Clinic. Before that, he was simply visiting Canada to take
examinations and make enquiries about working here.
[24]
Since
he applied for citizenship in February 2009, Dr. Udwadia had to show that he
had established his residence in Canada during or before
February 2006 (Nandre, above, at para 27). There was no evidence before
the citizenship judge that he had done so.
V. Conclusion and Disposition
[25]
There
was no evidence before the citizenship judge showing that Dr. Udwadia had
established a residence in Canada three years before he applied for
citizenship. Therefore, on that basis alone, the judge’s decision to grant him
citizenship was unreasonable. I must, therefore, allow this appeal and overturn
the citizenship judge’s decision.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
- The appeal is
allowed.
“James
W. O’Reilly”
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