Date: 20071212
Docket: T-807-07
Citation: 2007
FC 1305
Ottawa, Ontario,
December 12, 2007
PRESENT: THE CHIEF JUSTICE
BETWEEN:
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Applicant
and
ESAM
AYED AHMAD WSHAH
Respondent
REASONS FOR ORDER AND ORDER
[1] The respondent,
Esam Ayed Ahmad Wshah, is a citizen of Jordan.
[2] On February
6, 2003, he became a permanent resident of Canada. He landed
in this country without accompanying family.
[3] On May 1,
2003, Mr. Wshah left Calgary, Alberta to take up
employment in Germany.
[4] While he was
absent from Canada, Mr. Wshah states that he maintained a bank account here and paid his medicare and
phone bills. There is no evidence that he paid Canadian income tax while
employed in Germany.
[5] On July 25,
2005, after being away from Canada for more than two years, Mr. Wshah
returned to Calgary with his
spouse, whom he married abroad in 2004, and their first child. Mr. Wshah secured a job,
applied to sponsor his wife and their child, purchased a home, started a
business and paid Canadian income tax.
[6] On February 22, 2006,
the respondent applied for Canadian citizenship. The parties agree that during
the four years prior to his application, Mr. Wshah was present in Canada for
294 days and was absent for a total of 815 days. His absence represents a
shortfall of 801 days with respect to the 1,095-day residency requirement
prescribed under paragraph 5(1)(c) of the Citizenship Act, R.S.C. 1985,
c. C-29.
[7] Despite this
shortfall, after considering the factors in Koo (Re), [1993] 1 F.C. 286 (T.D.),
a citizenship judge approved Mr. Wshah’s application for citizenship. This
proceeding is the appeal from that decision by the Minister of Citizenship and
Immigration.
[8] The parties agree
that the appropriate standard of review is reasonableness: Lam v. Canada
(Minister of Citizenship and Immigration), [1999] F.C.J. No. 410 (QL)(T.D.)
at paragraphs 31 and 33; Chen v. Canada (Minister of Citizenship and Immigration), 2004
FC 1693. In this proceeding, the citizenship judge was free to follow the
decision in Koo as long as this was done with clear reasons which
demonstrate an understanding of the applicable legal principles.
[9] Counsel for the
respondent acknowledges, and properly so, that the principles in Koo
apply in “… situations in which the person concerned has a place in Canada
which is used by him during the period as a place of abode to a sufficient
extent to demonstrate the reality of his residing there during the material
period…”: Re Papadogiorgakis, [1978] F.C.J. No. 31 (QL) (T.D.) at
paragraph 15.
[10] Put differently, the
person seeking citizenship with substantial absences during the material
residency requirement period (the material period) must demonstrate a centralized
mode of existence in Canada, the place where the person “regularly, normally,
or customarily lives”: Koo (Re).
[11] In Re Papadogiorgakis
at paragraph 3, the individual can be said to have centralized his mode of
living in Canada during the three years prior
to the material period. In this proceeding, there is little, if any significant
establishment in Canada
prior to the respondent taking up employment for some two years in Germany.
[12] During the three months
after the respondent’s landing in Canada and prior to his taking up employment in
Germany, there is little evidence of his having established himself in Canada.
The respondent had no family in Canada. There is no evidence that he had any established friendships or
residential premises or that he paid Canadian taxes. His “establishment” was at
best a paper one and a very nominal one at that.
[13] In Lucki (Re),
[1993] F.C.J. No. 185 (T.D.), another citizenship case involving a presence of
short duration before an extended absence, the applicant landed in Canada with his spouse and their daughter. He worked here as an
architect and the daughter attended school. The working assignment which caused
the absence was both unexpected and of fixed duration. While working in Cyprus
with the United Nations, the applicant paid taxes in Canada. The facts in Lucki (Re) and the other cases relied upon by the
respondent can be distinguished from those in this proceeding.
[14] In my view, the citizenship
judge was “clearly wrong” in his application of Koo. His reasoning concerning
the Koo factors does not withstand “a somewhat probing examination”. In
particular, there is no cogent analysis as to whether or when the respondent
centralized his mode of living in Canada.
[15] Accordingly, the
Minister’s appeal will be granted and the decision of the citizenship judge
will be set aside. Of course, it will be open to the respondent to reapply for
citizenship on the basis of his return to Canada in July 2005 and any other relevant factors.
ORDER
THIS COURT ORDERS that this appeal is maintained and
the decision of the citizenship judge dated March 12, 2007 is set aside.
“Allan
Lutfy”
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