Date: 20110621
Docket: T-1481-10
Citation: 2011 FC 743
Ottawa, Ontario, June 21,
2011
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
|
|
RANA KHALIL ZABAD
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an appeal of the decision by a
Citizenship Judge, J. M. Way,
made on July 19, 2010, dismissing the Applicant’s application for Canadian
citizenship on the basis that the Applicant had not fulfilled the residency
requirements under paragraph 5(1) of the Citizenship Act, R.S.C. 1985,
c. C-29 (Citizenship Act).
[2]
The Citizenship Judge found that the Applicant
was 189 days short of the minimum requirement of 1095 days in Canada in the preceding four years. The
Citizenship Judge conducted an analysis to determine whether or not the
Applicant had centralized her mode of existence in Canada during the four year period prior to her application. The
Citizenship Judge decided that although the Applicant had initially established
herself in Canada, she had not
centralized her mode of existence in Canada. This was because toward the end of the second half of the four
year period, the Applicant had focused on transitioning to another country,
having gone for job interviews in the United States of America (USA) and
marrying an American citizen living in the USA.
[3]
The Applicant appeals this decision, submitting
that the Citizenship Judge erred in deciding the Applicant was transitioning to
the USA during the qualifying
four year period.
[4]
I have decided to grant the appeal because I
have come to the conclusion the Citizenship Judge erred in considering the
Applicant’s future intentions instead of the Applicant’s degree of
establishment, despite having chosen to adopt the analytical approach in Re
Koo, [1993] 1 F.C. 286. The Citizenship Judge also erred in considering
events after the qualifying four year residency period.
Background
[5]
Ms. Zabad earned a medical degree in Lebanon and
arrived in Canada in September
2002 after completing a residency in neurology in the United
States where she had been studying. She completed a
medical fellowship at the University of Calgary. After May 2005, she worked at the Foothills Medical
Centre as a neurologist until October 2007. She worked in Medicine Hat at the Palliser Health Regional
Medical Centre until October 15, 2008. She initially stayed with friends, but
later moved to her own rented accommodations.
[6]
Ms. Zabad received permanent residence status on
July 27, 2006. She applied for Canadian citizenship on September 11, 2008.
[7]
She married her spouse, an American citizen who
lives in the United States, on
July 5, 2008. Ms. Zabad remained with the Palliser Health Regional Medical
Centre in Medicine Hat until
October 2008. She started in a new position as Assistant Professor and Director
of the Multiple Sclerosis Program at the University of Nebraska in Omaha, Nebraska on October 27, 2008, and has been living in the United States since then. She continued to
hold her licence with the College of Physicians and Surgeons of Alberta and
continued a consulting position at the Palliser Health Regional Medical Centre
at the time of the citizenship hearing in 2010.
Decision Under
Review
[8]
The Citizenship Judge found that the relevant
four year period for the purpose of calculating her residence was September 11,
2004 to September 11, 2008 and that the Applicant was 189 days short of the
minimum 1095 days as required under the Citizenship Act.
[9]
The Citizenship Judge adopted the analytical
approach in Re Koo, [1993] 1 F.C. 286 (Koo), which asks the
question, is Canada the place where an applicant “regularly, normally or
customarily lives”, or phrased differently, “is Canada the country in which the applicant has centralized her mode of
existence?”
[10]
The Citizenship Judge looked at each of six
factors from Koo:
·
Was the individual physically present in Canada for a long period prior to
recent absences which occurred immediately before the application for
citizenship? The Citizenship Judge noted that
during the first year, the Applicant was absent approximately 44 days. The
Citizenship Judge accepted that the Applicant established herself in Canada during the time after she received
permanent status; however, the Citizenship Judge noted that in the last year of
the relevant period, she was physically absent 112 days.
·
Where are the applicant’s immediate family
and dependents (and extended family) resident? The
Citizenship Judge noted that her husband lives in the USA, her parents live in
Lebanon, her sister lives in the Ivory Coast, her husband’s mother and eight of
his siblings live in Tunisia, and one of her husband’s brothers lives in
France.
·
Does the pattern of physical presence in Canada indicate a returning home or
merely visiting the country? The Citizenship Judge
outlined the Applicant’s pattern of presence in and absences from the country,
observing the reasons and lengths for the absences. The Citizenship Judge found
that the pattern “seems to indicate that the focus of her home and family ties
became the USA by the end of
the relevant period.” The Citizenship Judge did note that the Applicant was a
member of the Alberta Medical Association and certified by the College of Physicians and Surgeons of Alberta.
·
What is the extent of the physical absences? The Citizenship Judge found that the Applicant was short
approximately 189 days of the minimum 1095 days as required by the Citizenship
Act.
·
Is the physical absence caused by a clearly
temporary situation? The Citizenship Judge found
that the absences were not clearly temporary, as the increased absences
indicated a transitioning toward the United States. The Applicant is currently employed under a three year term in Nebraska.
·
What is the quality of the connection with
Canada? The Citizenship Judge found that the
quality of the Applicant’s connection to Canada was more substantial initially,
but began to appear more temporary after she married her husband in the United States. The Citizenship Judge found
that there was no confirmed documentary evidence of date of return.
[11]
As a result, the Citizenship Judge decided that
although the Applicant had established herself in Canada initially, this focus began to change after she married her husband
and applied for jobs in the United States, finding “that your stay in Canada was of a temporary nature, and not
one of centralizing.” As such, the Citizenship Judge was not satisfied that
the Applicant had fulfilled her residency requirement and therefore did not
approve her application for citizenship.
Relevant
Legislation
[12]
The Citizenship Act, R.S.C.1985, c. C-29
provides:
|
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;
|
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;
|
[13]
Rules for Regulating the Practice and
Procedure in the Federal Court of Appeal and the Federal Court, S.O.R./98-106 (Federal Court Rules).
|
53. (1) In making an order under these
Rules, the Court may impose such conditions and give such directions as it
considers just.
Other orders
(2) Where these Rules provide that the
Court may make an order of a specified nature, the Court may make any other
order that it considers just.
|
53. (1) La Cour peut assortir toute
ordonnance qu’elle rend en vertu des présentes règles des conditions et des
directives qu’elle juge équitables.
Ordonnances équitables
(2) La Cour peut, dans les cas où les
présentes règles lui permettent de rendre une ordonnance particulière, rendre
toute autre ordonnance qu’elle juge équitable.
|
Issues
[14]
The Applicant and Minister frame the issue
differently. In my view, this issue may be simply stated as: did the
Citizenship Judge err in determining that the Applicant had not met the
residency requirement under subsection 5(1)(c) of the Citizenship Act?
Analysis
[15]
The standard of review applicable to a
citizenship judge’s decision on residence involving a question of mixed fact
and law is reasonableness. Canada (Minister of Citizenship and Immigration) v Ryan,
2009 FC 1159, Canada (Minister
of Citizenship and Immigration) v Zhou, 2008 FC 939.
[16]
The Applicant submits the Citizenship Judge did
not consider and analyze the evidence in support of her establishment in Canada. This evidence includes her
employment as a physician, professional membership in the College of Physicians and Surgeons of Alberta,
residence in Canada and various
financial dealings such as the paying of income tax and personal banking. The
Applicant also submits that the Citizenship Judge took into account irrelevant
considerations, namely, the Applicant’s absences after the date of filing of
the application for citizenship.
[17]
The Minister
submits the Citizenship Judge is entitled to deference. The Minister submits it
is in the Citizenship Judge’s discretion which test to apply for residence. As
long as the Citizenship Judge applies one of the residency tests articulated by
the Federal Court, properly and in a coherent fashion, the Citizenship Judge
will not have erred.
[18]
The Minister
submits that the allowance of a one year absence creates a strong inference
that an applicant’s physical presence in Canada is required during the remaining three
years. Canada (Minister of Citizenship and Immigration)
v Ntilivamunda, 2008 FC 1081. The Minister further submits the proposed
changes in Bill C-37, An Act to Amend the Citizenship Act introduced in
June 2010, inserting the word “physically present” strengthens the
intention that a permanent resident must be physically present in Canada for 1095 days during the preceding four
years.
[19]
I begin by
noting that the proposed legislative amendment was not in effect at the time the
Applicant made her application for citizenship. What governs is the
legislation in effect at the time. As Justice Mainville stated in Khan v Canada (Minister of Citizenship and
Immigration), 2009
FC 1178 (Khan):
An appeal pursuant to paragraph 14(5) of the [Citizenship] Act must
normally proceed on the basis of the legislative and regulatory provisions and
the policy considerations which existed at the time the citizenship judge made
his decision.
[20]
The Court has
historically recognized three different tests for residency requirements:
1. Pourghasemi (Re), (1993) 62 FTR 122: Has the individual been
physically present in Canada for three years?
2. Papadogiorgakis (Re), [1978] 2 FC 208: “mere intention to
reside in Canada is sufficient to acquire Canadian citizenship insofar as a
certain connection with Canada is
maintained.”
3. Koo (Re): Has the individual centralized his or her mode
of existence in Canada?
[21]
The Citizenship
Judge chose to apply the residence test articulated in Koo. I find that
the Citizenship Judge did not err in that choice. As mentioned, the Koo test
was articulated by Justice Reed as “Is Canada the place where the applicant
regularly, normally or customarily lives” or alternatively, “Is Canada the
country in which the applicant has centralized his or her mode of existence?”
This test has been endorsed by a number of Federal Court decisions including Lam
v Canada (Minister of Citizenship and Immigration), [1999] 164 FTR
177 (Lam) and Dedaj v Canada (Minister of Citizenship and Immigration),
2010 FC 777 (Dedaj).
[22]
Moreover, the
Citizenship Judge is due deference in respect of findings of fact and the Court
will intervene only if those findings are unreasonable. However, in this case,
I am satisfied that the Citizenship Judge erred in considering the Applicant’s
intentions for the period after the relevant four year period as well as in
considering events after that period.
[23]
In Canada
(Minister of Citizenship & Immigration) v Italia, [1999] FCJ No 876
(FCTD), Associate Chief Justice Richard stated that the case law establishes
that applicants for citizenship must demonstrate by objective facts that they
have established a residence in Canada and that they have maintained that
residence. A mere intention to establish residence is insufficient.
[24]
In Canada (Minister of Citizenship and
Immigration) v Roberts, 2009 FC 927 (Roberts), Justice Near followed Italia observing
that future intentions is not sufficient evidence to establish a residence:
16 … Rather
the Citizenship Court Judge seems to stress that Mr. Roberts intends to
establish a residence in Canada once his personal circumstances allow for such.
It is well established that a mere intention to establish a residence is
insufficient: see Canada (Minister of Citizenship & Immigration) v. Italia, above, at para. 16. Indeed, during his
oral submissions the Respondent advised the court that he had established a
residence as of June, 2009 which would seem to confirm that no such residence
had been established prior to this time or certainly during the material period
in question.
17 While I have some sympathy for the circumstances that led to
the Respondent's failure to establish a residence in Canada during the material
period it seems clear that the Citizenship Judge was guided more by Mr.
Roberts' future intentions with respect to establishing a residence and erred
in his judgment by not clearly addressing this issue. …
[25]
I should think that if future intentions are
insufficient to establish a residence, they are also insufficient, on their
own, to constitute abandonment of established residence. If residence has been
established, what is required is the assessment of objective facts of either
continued residence or abandonment of residence during the relevant four year
period: did an applicant continue or move out of established accommodation,
keep or place possessions in storage, continue or leave employment, maintain or
close bank accounts or the like? Without this assessment of objective facts,
‘transitioning’ becomes too nebulous a criterion to be reliably assessed.
[26]
In this case, the Citizenship Judge did list all
of the evidence but then became preoccupied with the Applicant’s intentions
after the four year residency period, in essence applying the Papadogiorgakis
test despite having chosen to apply the Koo test. The Citizenship
Judge’s focus on the Applicant’s intentions distracted the Citizenship Judge
from weighing the degree of her establishment in Canada according to the factors listed in Koo. In focusing on the
Applicant’s future intentions after the four year period and neglecting to
weigh the evidence of continued establishment during the four year period
submitted by the Applicant, the Citizenship Judge fell into error.
[27]
The Citizenship Judge made specific reference to
events after the relevant four year period. The Judge stated:
In my opinion,
the absences are not clearly temporary. The increased absences in the relevant
period indicate a transitioning toward another country, the USA. Moreover, the applicant stated she
is currently employed under a three year term in Nebraska. In my opinion, a three
year term contract is not temporary. The applicant
declared she “had to leave Canada because of my husband’s job.”
It is to be noted
that the Applicant took the Nebraska medical teaching position in October 2008 after the relevant
term, September 2004 to September 2008.
[28]
I also note that according to the Applicant’s
unchallenged affidavit evidence, at the hearing in May 2010, the Citizenship
Judge repeatedly asked the Applicant about coming back to Canada. This further supports my conclusion
that the Citizenship Judge took into account future intentions and events after
the relevant period. In taking into account facts after the relevant four year
period, I find the Citizenship Judge erred.
Conclusion
[29]
I conclude that the Citizenship Judge failed to
properly assess evidence of the Applicant’s establishment in Canada. Furthermore, the Judge considered
events that occurred after the relevant four year period of required residence.
In doing so, the Citizenship Judge decided unreasonably.
[30]
The Applicant seeks a declaration that the
Applicant has fulfilled the requirements for residency to be granted a positive
citizenship determination or, alternatively, remitting the application to a
different judge for redetermination. As I have found the Applicant’s evidence
of residency has not been properly assessed, I will remit the application back
for redetermination by a different citizenship judge.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
The appeal is granted.
2.
The Applicant’s citizenship application is
remitted back for redetermination by a different citizenship judge.
3.
No costs are awarded.
“Leonard
S. Mandamin”
Email this Content