Date: 20091022
Docket: T-326-09
Citation: 2009 FC 1069
Toronto, Ontario, October 22,
2009
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
SURASHRI
CHATTERJEE
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 January 14, 2009, approving the application for
Canadian citizenship made by Surashri Chatterjee (the “Respondent”).
BACKGROUND FACTS
[2]
The
Respondent is a citizen of India. She came to Canada in 1971 and became a
permanent resident. She lived in Canada
without interruption until 1997. However, at that date, she moved to India with her husband, and took up a teaching
position at the Canadian International School in Bangalore, teaching a curriculum
approved by the Ontario educational authorities. She
returned to Canada in 2006 and now lives in Toronto. She applied for citizenship on February
7, 2007, having been absent from Canada
for a total of 1195 days out of the preceding 1460 days. In addition to the
periods of time she spent in India, she also made two visits,
the first lasting 40 days, and the second, 25 days, to her daughter who lives
in California.
[3]
The Citizenship
Judge approved her application. The Minister is now appealing this decision.
DECISION UNDER REVIEW
[4]
The
Citizenship Judge’s decision is composed of his handwritten notes on the file,
along with his handwritten comments on a form that lists the six questions from
Re Koo, [1993] 1 F.C. 286, (1992) 19 I.L.R. (2d) 1.
[5]
He noted
that the Respondent had lived in Canada from 1971 to 1997, graduating from McGill University and becoming a teacher.
[6]
Further,
the Respondent’s husband and daughters are Canadian citizens; one of the
daughters lives in Canada, while the other lives in the United States. The Respondent also has considerable
investments in Canada.
[7]
In the
Citizenship Judge’s view, the pattern of the Respondent’s physical presence in Canada was that of a person
returning home rather than that of a visitor. Also, when the Respondent was
teaching in India, she always returned to Canada for summer and winter breaks.
[8]
The
Citizenship Judge noted that the Respondent was outside Canada for 1195 days in
the four years preceding her application, “teaching Ontario curriculum in a Canadian school
established in India, teaching diplomats’
children. She was also accompanying her Canadian citizen husband.”
[9]
The
Citizenship Judge found that the Respondent’s absence from Canada was caused by a temporary
situation. Furthermore, as she was teaching a Canadian curriculum in a Canadian
school and interacting with Canadians, “she [could] be considered as if she
[was] in Canada”.
[10]
Finally, he
found that the quality of the Respondent’s connection with Canada is “very strong.” He noted
that she set up her existence here, raised two children in Canada and is involved in
volunteering.
[11]
The
Citizenship Judge was satisfied that despite the Respondent’s lengthy but
temporary physical absence from Canada,
she had established her residence here.
PARTIES’ SUBMISSIONS
[12]
The Minister
argues that the Citizenship
Judge focused only on the fact that the respondent had previously lived in Canada for an extended period of
time instead of properly considering all of the other factors from Re Koo,
supra.
[13]
Furthermore,
the Minister submits that this case is not so “close” as to justify a departure
from the strict residency requirements of the Citizenship Act, because
“[t]he Respondent’s travel and residency abroad were substantial, her absences
were lengthy, and there was little evidence about her activities in Canada.”
[14]
In this
respect, the Minister submits that the Citizenship Judge made findings without
regard to the evidence. Thus, he found that the Respondent maintained her
residence in Canada despite an absence of any evidence about bank accounts, tax
payments, or property ownership in Canada
while she was living in India. According to the Minister,
such documents as the Respondent had submitted indicate that she was resident
in India until 2006, and the Citizenship Judge ignored this evidence in making
his findings.
[15]
For her
part, the Respondent stresses the fact that while in India, she was teaching a
Canadian curriculum at a school that maintained close ties to Canada. She insists that her classes
and other activities she organized had much Canadian content, and that she
therefore “remained a de facto Canadian resident.”
ANALYSIS
[16]
As the
Minister submits, the question whether a person is resident in Canada is a
factual one and the applicable standard of review is reasonableness, as Justice
Eleanor Dawson confirmed in Chen
v. Canada (Citizenship and Immigration), 2008 FC 763, at par. 5. In the present case, the findings of the
Citizenship Judge were not reasonable for the following reasons.
[17]
There can
be no doubt that the Respondent had ample opportunity to become “Canadianized”
prior to her departure for India in 1997. Indeed, the
Citizenship Judge, in his conclusions, noted that she has a “very good
knowledge of Canada.”
[18]
But, in
accordance with the Citizenship Act’s requirements, the case law
indicates that a citizenship applicant must submit evidence of sufficient ties
to Canada during three of the four
years immediately preceding his or her application. The Re Koo test,
which the Citizenship Judge applied, provides a measure of flexibility in this
respect. However in the present case, the evidence tendered by the Respondent,
such as tax and utility bills, banking statements, etc., either pre- or
post-dates most of the relevant period.
[19]
Therefore,
though reluctantly, I agree with the Minister that the Citizenship Judge’s
finding that the Respondent maintained her residence in Canada while teaching in India is not based on the evidence and is
therefore unreasonable. The Citizenship Judge’s reasons note that the
Respondent always returned to Canada for vacations, but this seems to be
the only foundation for his conclusion that the Respondent continued to call Canada home during her long absence.
Given the length of the Respondent’s stay in India, which is her country of citizenship,
this is a shaky foundation for the Citizenship Judge’s conclusion.
[20]
I have
sympathy for the Respondent, but she is, ultimately, responsible for her
unfortunate situation, since she had, prior to her departure for India in 1997, at least two decades in which
she could have made a successful application for the Canadian citizenship.
[21]
For these
reasons, the appeal is allowed. The Respondent’s Citizenship application is remitted
for reconsideration by another Citizenship Judge, who will have the opportunity
to ask the Respondent to submit additional evidence of her continued residency
in Canada during the material period.
JUDGMENT
THIS COURT
ORDERS that the appeal is allowed,
and the matter be remitted to another Citizenship Judge for re-determination.
“Danièle Tremblay-Lamer”
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