Date: 20101027
Docket: T-476-10
Citation: 2010 FC 1056
Ottawa, Ontario, October 27, 2010
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
EMMANUEL
MANAS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Overview
[1]
In 2001,
Mr. Emmanuel Manas arrived in Canada as a permanent resident. He
and his family established a home in Mississauga.
The following year, Mr. Manas found a job in New York in his specialized field of marine
electronic equipment maintenance. People in that field typically work in deep
sea harbours; New
York is the
closest suitable location to Mississauga. He follows a flexible
schedule permitting him to return home most weekends for two or three days.
[2]
In 2007,
Mr. Manas applied for Canadian citizenship. According to the Citizenship Act,
applicants must show they were resident in Canada for three out of the four years
preceding the application (R.S.C. 1985, c. C-29, s. 5(1)(c)). If they
have not been physically present for the necessary three years, they must prove
that they established and maintained, through a strong connection to Canada,
their residency in Canada for the required period. This
is referred to as a qualitative test (Canada (Minister of Citizenship and
Immigration)
v. Nandre, 2003 FCT 650, at para. 21).
[3]
Due to his
employment in the United
States, Mr.
Manas failed to prove he had lived in Canada
for a three-year period during the relevant time frame: 2003 to 2007. He fell
423 days short of the required 1,095 days. However, the citizenship judge who
reviewed Mr. Manas’s application granted him Canadian citizenship because he
had established his residency in Canada
and centralized his life here.
[4]
The
Minister argues that the citizenship judge erred by failing to apply the proper
test for residency, arriving at an unreasonable conclusion, making an important
factual error, and failing to provide adequate reasons. He asks me to quash the
citizenship judge’s decision. I agree that the citizenship judge erred and
will, therefore, allow this appeal. In particular, I find that the judge’s
decision was unreasonable.
II. The Citizenship Judge’s
Decision
[5]
The
citizenship judge relied on the case of Re Papadogiorgakis, [1978]
2 F.C. 208 (F.C.T.D.). There, Associate Chief Justice Thurlow concluded that a
person with an established home in Canada can leave temporarily and still be
regarded as a resident of Canada. The fact that the person’s
family continues to reside in Canada is a relevant factor, as is
the frequency of the person’s trips back to Canada. The main question is whether the person
has centralized his or her mode of living in Canada through social relations and other
interests.
[6]
The
citizenship judge found Mr. Manas had established the family home in Canada
before starting his job in the U.S. He observed that Mr. Manas
spent more time in the United
States than in
Canada, but concluded that Mr. Manas had proved that he had centralized his
life in Canada. Factors that figured in the
citizenship judge’s conclusion included the nature of Mr. Manas’s employment,
the relative proximity of New
York, Mr.
Manas’s flexible schedule, and the frequency and duration of his travels to Canada. The evidence showed that Mr.
Manas maintained professional and social ties to Canada through his membership in the Ontario
Association of Certified Engineering Technicians and Technologists, his
involvement in his church, and his insurance and medical arrangements. In
addition, his family lives, works and goes to school in Canada.
III.Was the Decision Reasonable?
[7]
Mr. Manas
submits that the decision was reasonable because the citizenship judge
considered the relevant factors and arrived at a conclusion for which there was
supporting evidence.
[8]
In my
view, the citizenship judge overlooked significant factors. First, the
citizenship judge did not consider the fact that Mr. Manas’s employment
situation was not temporary; it was indefinite and possibly permanent. His
situation is unlike that envisaged in the Papadogiorgakis case, where
the applicant was resident in the United States for a few years simply to pursue post-secondary studies.
Mr. Manas’s application did not disclose any plan to live full-time in Canada. While his skills could
equally be applied in Halifax which, like New York, is a deep sea port, there was no
evidence before the citizenship judge of any intention on Mr. Manas’s part to
work in Canada.
[9]
Second,
the citizenship judge considered the fact that Mr. Manas pays all of his income
tax in Canada as a factor in his favour.
However, the evidence showed that Mr. Manas actually pays a significant amount
of income tax in the U.S.
[10]
Third, Mr.
Manas told an immigration officer that he had been a U.S. resident since 2005. The citizenship
judge did not refer to this evidence.
[11]
In my
view, while each of these grounds would probably not have provided a basis for
overturning the citizenship judge’s decision on its own, taken together, they
persuade me that the decision was unreasonable.
IV.
Conclusion
and Disposition
[12]
Given the
factors overlooked by the citizenship judge, his conclusion did not fall within
the range of possible, defensible outcomes based on the facts and the law. I
must, therefore, allow this appeal and quash the decision under appeal. Given
that the citizenship judge noted several factors in favour of Mr. Manas’s
application, I believe it would be in the interests of justice to refer the
matter back to the citizenship judge for reconsideration. In doing so, I point
out that the Federal Court now recognizes the following test of residency as
the prevailing one:
Has the applicant proved that he
established his residence in Canada and maintained it for the
required duration? In considering whether this test has been met, the
citizenship judge may consider a variety of factors, particularly those set out
in Koo(Re), [1993] 1 F.C. 286 (T.D.). (See Nandre, above, at
para. 24; Dedaj v. Canada (Minister of Citizenship and
Immigration),
2010 FC 777, at para. 7-8.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1.
The
application for leave to appeal is allowed and the decision under appeal is
quashed.
2.
The
matter is returned to the citizenship judge for reconsideration.
“James
W. O’Reilly”
Annex
|
Citizenship
Act, R.S.C.
1985, c. C-29
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;
|
Loi
sur la citoyenneté,
L.R., 1985, ch. C-29
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,
|
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