Date: 20070228
Docket: T-763-06
Citation: 2007 FC 230
Ottawa, Ontario, February 28th,
2007
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
MOHAMAD
HUSSEIN SLEIMAN
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an appeal pursuant to subsection 14(5)
of the Citizenship Act, R.S.C. 1985, c. C-29 (the Act) of a decision of a
Citizenship Judge dated March 8, 2006, which denied the applicant’s application
for citizenship.
[2]
The applicant became a permanent resident of Canada on July 5, 2001. He was selected
under the Investor category of the Business Immigration program. He applied for
citizenship on December 21, 2004.
[3]
The applicant arrived in Canada with his wife and four children. All
five of his family members have since been granted Canadian citizenship. The
applicant, however, was denied citizenship because he had accumulated eight
protracted absences from Canada
during the time before his application for citizenship, together amounting to
1,032 days of absence out of the total 1,258 days considered by the Citizenship
Judge. His absences from Canada,
during each of which he travelled to Saudi Arabia and Lebanon, were as follows:
1.
August 8, 2001 to January 31, 2002 (176 days),
after first spending 33 days in Canada;
2.
February 26, 2002 – August 15-2002 (170 days);
3.
September 10, 2002 to December 2, 2002 (83
days);
4.
December 22, 2002 to February 6, 2003 (46 days);
5.
February 28, 2003 to May 1, 2003 (62 days);
6.
May 20, 2003 to November 11, 2003 (184 days);
7.
December 12, 2003 to January 31, 2003 (49 days);
and
8.
February 22, 2003 to November 11, 2004 (263
days).
Issue
[4]
The issue raised in this appeal is whether the
Citizenship Judge erred in concluding that the applicant had not satisfied the
residency requirements under subparagraph 5(1)(c)(ii) of the Act.
Relevant legislation
[5]
The key legislative provision at issue in this appeal
is subparagraph 5(1)(c)(ii) of the Act, which provides as follows:
|
Grant of citizenship
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:
[…]
(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; […]
|
Attribution de la citoyenneté
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 :
[…]
(ii) un jour pour chaque jour de
résidence au Canada après son admission à titre de résident permanent; […]
|
Standard of review
[6]
The issue of whether a person has met the
residency requirement under the Act is a question of mixed fact and law. The Court should show some degree of deference to the
Citizenship Judge and not substitute its opinion for that of the Judge where he
or she, "in clear reasons which demonstrate an understanding of the case
law, properly decide that the facts satisfy their view of the statutory test in
paragraph 5(1)(c)": Lam v. Canada (Minister of Citizenship and Immigration)
(1999), 164 F.T.R. 177 at paragraph 33 per Justice Allan Lutfy (as he then was).
The function of this Court is to verify that the Citizenship Judge has properly
applied the test of his or her choosing: see Canada (Minister of Citizenship and Immigration) v. Mindich (1999), 170 F.T.R. 148 at para. 9. Citizenship
Judges are owed some deference in light of their special degree of knowledge
and experience. The Act also provides a statutory right of appeal of a
Citizenship Judge’s decision to the Federal Court. I agree with Justice
Mosley’s reasoning in Zeng v. Canada (Minister of Citizenship and Immigration), 2004 FC 1752, in
which he stated:
¶9 Applying
a pragmatic and functional analysis to the review of the decisions of citizenship
judges respecting the residency requirement of the Act, several judges of this
court have recently concluded that a more appropriate standard would be
reasonableness simpliciter: Chen v. Canada (Minister of Citizenship and Immigration) 2004
FC 1693, [2004] F.C.J. No. 2069; Rasaei v. Canada (Minister of Citizenship
and Immigration) 2004 FC 1688, [2004] F.C.J. No. 2051; Gunnarson v.
Canada (Minister of Citizenship and Immigration) 2004 FC 1592, [2004] F.C.J.
No. 1913; Canada (Minister of Citizenship and Immigration) v. Chen 2004 FC 848, [2004]
F.C.J. No. 1040; Canada (Minister of Citizenship and Immigration) v. Fu
2004 FC 60, [2004] F.C.J. No. 88; Canada (Minister of Citizenship and Immigration) v. Chang
2003 FC 1472, [2003] F.C.J. No. 1871.
¶10 I
agree that the question of whether a person has met the residency requirement
under the Act is a question of mixed law and fact and that Citizenship Judges are owed some
deference by virtue of their special degree of knowledge and experience. Accordingly,
I accept that the appropriate standard of review is reasonableness simpliciter
and that, as stated by Snider J.in Chen, supra at paragraph 5, "as
long as there is a demonstrated understanding of the case law and appreciation
of the facts and their application to the statutory test, deference should be
shown."
[Emphasis added]
I also adopt Justice Mosley’s comments in Huang v. Canada (Minister of Citizenship and Immigration.), 2005 FC 861, where
at paragraph 12 he concluded that “for pure
questions of fact greater deference should be shown to the Citizenship Judge's findings resulting
in a standard of patent unreasonableness.”
[7]
Accordingly, I conclude that the appropriate
standard of review applicable to the principal issue in this appeal is one of
reasonableness, and that the purely factual findings of the Citizenship Judge
are reviewed on a standard of patent unreasonableness.
[8]
A decision is unreasonable only if there is no
line of analysis within the given reasons that could reasonably lead the
tribunal from the evidence before it to the conclusion at which it arrived.
This means that a decision may satisfy the standard if it is supported by a
tenable explanation even if it is not one that the reviewing courts find
compelling: Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247.
The test for residency
[9]
The term “residence” is not defined by statute but rather by case law.
The Federal Court’s jurisprudence has yielded three distinct approaches to
residence, each of which places a different emphasis on an individual’s physical
presence in Canada. These approaches were summarized by Mr. Justice James
Russell in Zhao v. Canada (Minister of Citizenship and
Immigration), 2006 FC 1536 at paragraphs 50 and 51:
¶50 There are three general tests that have been
developed by the Federal Court, and a citizenship judge may adopt and apply
whichever one he or she chooses as long as it is applied properly: So v.
Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1232,
2001 FCT 733 at paragraph 29. Under the first test, a person cannot
reside in a place where the person is not physically present. Thus, it is
necessary for a potential citizen to establish that he or she has been
physically present in Canada for the requisite period of time. This flows from the
decision in Pourghasemi (Re) (F.C.T.D.) (1993), 62 F.T.R.122, 19
Imm. L.R. (2d) 259 at paragraph 3 (F.C.T.D.), where Justice Muldoon
emphasized how important it is for a potential new citizen to be immersed in
Canadian society. Two other contrary tests represent a more flexible
approach to residency. First, Thurlow A.C.J. in Papadogiorgakis, [1978]
2 F.C. 208, 88 D.L.R. (3d) 243 (F.C.T.D.) held that residency
entails more than a mere counting of days. He held that residency is a matter
of the degree to which a person, in mind or fact, settles into or maintains or
centralizes his or her ordinary mode of living, including social relations,
interests and conveniences. The question becomes whether an applicant's
linkages suggest that Canada is his or her home, regardless of any absences from the
country.
¶51 Justice Reed has outlined the third approach,
which is really just an extension of Justice Thurlow's test. In Re: Koo,
[1993] 1 F.C. 286 59 F.T.R. 27 (F.C.T.D.), Justice Reed held that
the question before the Court is whether Canada is the country in
which an applicant has centralized his or her mode of existence. This involves
consideration of several factors:
1. Was the
individual physically present in Canada for a long period prior to recent absences which occurred
immediately before the application for citizenship?
2. Where are the
applicant's immediate family and dependents (and extended family) resident?
3. Does the pattern
of physical presence in Canada indicate a returning home or merely visiting the country?
4. What is the
extent of the physical absences - if an applicant is only a few days short of
the 1095 day total it is easier to find deemed residence than if those absences
are extensive?
5. Is the physical
absence caused by a clearly temporary situation such as employment as a
missionary abroad, following a course of study abroad as a student, accepting
temporary employment abroad, accompanying a spouse who has accepted temporary
employment abroad?
6. What is the
quality of the connection with Canada: is it more substantial than that which exists with any
other country?
The general principle is that the quality of residence in Canada must be more
substantial than elsewhere. See also Lin v. Canada (Minister of
Citizenship and Immigration) (2002), 21 Imm. L.R. (3d) 104, 2002 FCT 346.
The decision under review
[10]
The Citizenship Judge applied the test set out
in Re Koo, above, and determined whether Canada was the place where the applicant “regularly, normally or
customarily lives” based on her assessment of the six factors identified
by Reed J. above.
Factor 1: Was the individual
physically present in Canada for a long period prior to recent absences which occurred
immediately before the application for citizenship?
[11]
The applicant arrived in Canada on July 5, 2001. He remained in Canada for 33 days before returning to Saudi Arabia for 176 days. The Citizenship
Judge stated at page 3 of the decision that one cannot establish an active
residence in 33 days. She further noted that the first prolonged absence was “the
first in a regular pattern of prolong[ed] absences (8 in all) punctuated with
returns to Canada (lasting 3 to
4 weeks).” The applicant’s immediate absence before filing his application had
been for a period of 263 days. The Citizenship Judge further found that the
applicant’s pattern of absences was still ongoing.
Factor 2: Where are the applicant's immediate
family and dependents (and extended family) resident?
[12]
The Citizenship Judge assessed the second factor
as follows:
Your
wife and 4 children (now young adults) came to Canada with you. Your eldest daughter, now a Canadian, went back to live
with her husband in Riyadh. You
stated that all of your relatives, extended family are in Lebanon.
Factor 3: Does the pattern of physical presence
in Canada indicate a returning home or merely
visiting the country?
[13]
With respect to the third factor, the
Citizenship Judge stated as follows:
You
live and work in Saudi Arabia.
Your immediate family is in Canada and you have a family matrimonial home in Ottawa but as you stated you come for a
visit 3 to 4 times a year. In my view, Canada is the place you return to visit with your family while you work
and live in Saudi Arabia.
[Emphasis added]
Factor 4: What is the extent of the
physical absences?
[14]
The fourth factor identified by Reed J. in Re
Koo, above, recognizes that it is easier to deem an individual to be
resident if his absences place him only a few days short of the 1,095 day
total. In the case of the applicant, however, the Citizenship Judge emphasised
that he was absent 1,032 days and present in Canada for only 226 days.
Factor 5: Is the physical
absence caused by a clearly temporary situation such as employment as a
missionary abroad, following a course of study abroad as a student, accepting
temporary employment abroad, accompanying a spouse who has accepted temporary
employment abroad?
[15]
The Citizenship Judge referred to the
applicant’s evidence at the hearing and concluded that his absences from Canada were not caused by a “clearly
temporary situation”:
At
the hearing when question on the extent of your prolonged ongoing absences you
explained that you can provide a lot of money for your family by continuing
your consulting business in Saudi Arabia. You stated that you did not want to come and live here permanently
as yet because you “don’t know the value of the future”. In my view your
period and nature of absences (still ongoing) can not be considered as a
temporary situation.
[Emphasis added]
Factor 6: What is the quality of the connection
with Canada: is it more substantial than that which
exists with any other country?
[16]
The Citizenship Judge acknowledged the presence
of the applicant’s family in Canada, but concluded that the applicant had a
more substantial connection to Saudi Arabia based on the continuous pattern of his lengthy absences. The
Citizenship Judge also referred to the applicant’s statement during the hearing
regarding his desire to become a Canadian citizen:
I
understand that your family is here and you are committed to your family,
however your continuous pattern of lengthy absences with short visits to Canada demonstrates a more substantial
quality connection to Saudi Arabia. In my opinion, you do not “regularly, normally or customarily
live” in Canada. At the
hearing you when asked why, having the numerous benefits of a permanent
resident, you wanted your Canadian citizenship you replied: “I need the
passport, as a Palestinian it is difficult to travel and I want to go to Hawaii with my wife”.
[Emphasis added]
[17]
Having assessed the six factors identified in Re
Koo, above, the Citizenship Judge concluded that the applicant had not
satisfied the residence requirement under the Act.
[18]
The Citizenship Judge also considered whether to
make a favourable recommendation under subsections 5(3) and (4) of the Act as
she was required under subsection 15(1). These exceptional provisions allow for
a favourable recommendation in cases of special and undue hardship or where an
applicant has provided services of an exceptional value to Canada. The applicant did not take issue on
this appeal with the Citizenship Judge’s decision not to apply them.
Applicant’s Position
[19]
The applicant argues that he established a
residence in Canada before his period of absence and that the time during which
he was physically absent from Canada may therefore be counted towards the required residency period
under subparagraph 5(1)(c)(ii) of the Act. The applicant referred the Court to
several factors which, in his submission, indicate that he established a
residence in Canada. The
following is a summary of the factors identified by the applicant:
1. The applicant purchased his family
home on August 3, 2001. He lives in this home with his wife, daughters and son.
He maintained a continuous intention to keep that residence as his home, and
his family has continually occupied the home since purchasing it.
2. All of the bills relating to the
residence, including the mortgage, insurance, taxes, telephone, hydro, cable,
and other utilities are registered in the applicant’s name and are sent to his
attention for payment. He provided copies of these bills to the Citizenship
Judge.
3. On February 21, 2002, the applicant
and his son registered a general partnership agreement under the laws of Ontario in respect of “Sleiman Trading”.
The applicant financed his son’s active Ontario business, “Mobileit”, which is a mobile telephone and data
retailer.
4. The applicant has an active banking
history in Canada which
includes maintenance of five bank accounts with the Bank of Montreal. These
include accounts for chequing, investment chequing, term investments, premium
savings, and U.S. dollars.
5. Since March 1, 2002, the applicant
has owned three vehicles registered in Ontario under his name. He currently owns two of these cars.
7. The applicant declared personal
income and filed taxed returns in Canada for each of the 2001 to 2004 tax years. He declared Canada as his place of residence on each of
his tax returns.
8. Since February 2002, the applicant
has been a patient of Dr. Sabry, a family physician in Orleans, a suburb of Ottawa.
9. The applicant’s first daughter has
been enrolled and continuously attended university in Canada since September
2001 until graduating with a Bachelor’s Degree in Chemical Engineering from the
University of Ottawa.
10. The applicant’s second daughter has
continuously attended school in Canada since the fall of 2001 and is currently
enrolled at the University of Ottawa.
11. The applicant’s son has continuously
attended school in Ottawa since
the fall of 2001.
12. Each of the applicant’s five family
members has been granted Canadian citizenship. English is their language of
daily use.
13. All of the applicant’s assets, except
for three pieces of foreign real estate, are located in Canada. By the time of his interview, the
applicant was able to demonstrate that he had transferred $960,000 to Canada.
14. Before arriving in Canada, the
applicant retired from his 24 years of employment as an oil executive in Saudi Arabia.
15. The applicant was absent Canada for the purpose of:
a) liquidating his foreign assets in both Lebanon and Saudi Arabia so that he could
transfer the value to Canada;
b) managing the foreign real estate in Lebanon which the applicant could not sell;
c) providing fee-for-service business management
consulting to a company in Saudi Arabia; and
d) attending his brother’s funeral in Lebanon.
16. The applicant was born and raised in Lebanon, but is a stateless Palestinian and
does not have Lebanese citizenship.
17. The applicant’s only connection to Lebanon is the three pieces of real estate
he owns in that country.
18. The applicant has the legal right to
enter and remain in Lebanon,
but has entered for only very short durations and has not remained there since
becoming a permanent resident of Canada. He visits Lebanon
intermittently for periods of less than ten days each and only for the purpose
of managing his properties.
19. The applicant is not a citizen of Saudi Arabia. The applicant’s temporary
work permit in Saudi Arabia is
valid only until November 14, 2006 and is not automatically renewable.
20. The applicant temporarily rents a
small apartment in Saudi Arabia.
21. The applicant receives consulting
fees for the business advisory services he provides for a company in Saudi Arabia. He is not registered on the
company’s payroll, and he is not a full-time permanent employee of the company.
[20]
The applicant argues that his connection to
Canada is more substantial than it is to Lebanon or Saudi Arabia.
Rather than characterizing the periods of his stay in Canada as visits, the applicant submits that during these periods he was
“returning home” after temporary business or employment situations required him
to travel abroad.
[21]
The applicant relies on the Federal Court’s
judgment in Canada (Secretary of State) v. Nakhjavani, [1988] 1 F.C. 84, 13
F.T.R. 107, 2 Imm. L.R. (2d) 241, in which Justice Joyal stated at paragraph
15:
¶15 The Papadogiorgakis [above] case did
not necessarily short-circuit the residency requirements of the Canadian
Citizenship Act but it did remove it from the numbers-crunching game of
figuring out whether or not any particular applicant had physically resided in
Canada for three-quarters of the time during a four-year period. It imposed on
the courts an enquiry covering both intention and fact, neither of these
elements being considered determinative by itself. A self-serving
declaration of intention therefore might have little weight unless it were
buttressed by objective facts representing tangible expressions of that
intention i.e. ownership of residential property, car registration, bank
accounts, club or association memberships, and particularly, the continuing
presence in Canada of immediate family members and to whom an individual might
return from time to time even for only brief periods of time.
[Emphasis added]
[22]
The applicant also referred
the Court to Re Calderwood, [1989] 1 F.C. 198, 21 F.T.R. 105
(F.C.T.D.), in which the Justice Joyal held at paragraph 8
that indicia such as family connections to Canada, a continuing place of
residence, Canadian bank accounts, a provincial driver’s licence, provincial
health care registration, and frequency of return periods in Canada may be
applied to ensure that periods spent outside Canada are included in the minimum
residency calculation. The applicant argues that, in light of the same
indicia demonstrated in this case, the Citizenship Judge ought to have
concluded that the applicant was resident in Canada despite his absences.
Analysis
Issue: Did the Citizenship Judge err in concluding
that the applicant had not satisfied the residency requirements under
subparagraph 5(1)(c)(ii) of the Act?
[23]
The facts of this case support the finding that
the applicant did not maintain a "central existence" in Canada, or a
"quality of attachment to Canada", during the four years before his citizenship application.
The required time spent by the applicant in Canada in the last four years is 1,095 days in order to qualify for
citizenship. The applicant only spent 226 days.
[24]
As noted above, the standard of review applicable
to this appeal is one based on reasonableness. I have reviewed the reasons of
the Citizenship Judge and find that she did identify and apply the residency
test and six factors set out in Re Koo, above. I find that the
Citizenship Judge demonstrated in her reasons an understanding of the test and reasonably—if
not correctly—decided that the facts do not satisfy the residency requirement
under this test.
Factor 1 – Physical presence in Canada for a long period prior to
absences
[25]
As Justice James Russell held in Eltom v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1555 at
paragraph 21, in applying the Koo test, the analysis is divided into two
parts:
1.
whether the applicant has established residency
in Canada; and
2.
whether the applicant has maintained that
residency.
Justice Russell held that an applicant could
not “bootstrap” his qualification as a resident based on the conduct of his
family. I agree. In the case at bar, the applicant only lived in Canada for 33 days before first leaving for
Saudi Arabia, the country where
he had lived for the previous 25 years. He stayed in Saudi Arabia for almost six
months, then returned to Canada
for three weeks, and four days before leaving again for Saudi Arabia for almost six months. While
the Court was impressed with the applicant’s accomplishments within his first
33 days in Canada; e.g., purchasing a residence, purchasing automobiles,
establishing bank accounts, etc., the applicant had not centralized his
existence in Canada before
leaving Canada. The applicant
did not have a physical presence in Canada for a long period prior to his absences.
[26]
Justice Russell also considered the “passive”
indicia of residency in Eltom, above. He held that the
Citizenship Judge must evaluate the quality of the applicant’s connection with
Canada and that passive indicia such as owing homes, cars, credit cards, etc.
are not enough to demonstrate that the applicant has “Canadianized” himself. I
agree. Justice Russell said that the Court looks for some level of involvement
in the social life of Canada,
which, in the case at bar, the applicant has not done. The applicant has not
“Canadianized” himself.
Factor 6 – Quality of connection with Canada
[27]
The Court finds that the Citizenship Judge
reasonably concluded that the appellant has not demonstrated a quality of
connection with Canada that is
more substantial than that which exists with any other country. In this case,
the applicant has more of a connection with Saudi Arabia, where he has lived
for the past 30 years, than he has with Canada. Canada has been
chosen by his family as the country in which to centralize their existence. The
applicant must also centralize his existence in Canada and demonstrate that Canada is his residence before he can obtain Canadian citizenship. He cannot
“bootstrap” his citizenship application to that of his wife and children and
expect to similarly qualify for citizenship.
Factor 5 – Physical absences caused by a
clearly temporary situation
[28]
With respect to the extensive and protracted
absences from Canada, it is
clear that these physical absences are not caused by a “clearly temporary
situation”. They are an integral part of the applicant’s life. Moreover, the
pattern of physical presence in Canada indicates a life split between two
countries rather than a centralized mode of existence in Canada. As Mr. Justice Luc Martineau held
in Canada (Minister
of Citizenship and Immigration) v. Chen, 2004 FC 848 at paragraph 10:
When
absences are a regular pattern of life rather than a temporary phenomenon, they
will indicate a life split between two countries, rather than a centralized
mode of existence in Canada, as
is contemplated by the Act.
Other factors
[29]
My comments with
respect to the other factors -- factor 2 (the location of the applicant’s
immediate family), factor 3 (the pattern of physical presence in Canada
indicating a returning home or merely visiting), and factor 4 (the extent of
the physical absences – if the applicant is only a few days short of the 1,095
day total required then it is easier to find deemed residence) -- are that the
conclusions of the Citizenship Judge were reasonable, and ought not to be
set aside.
[30]
The applicant
referred the Court to Papadogiorgakis v. Canada (Minister of Citizenship and Immigration), [1978] 2 F.C. 208 per Thurlow A.C.J.
(as he then was). This is one of the three general tests developed by the
Federal Court which a citizenship judge may adopt and apply. In the case at
bar, the Citizenship Judge did not adopt and apply this test. Rather, the
Citizenship Judge applied the test in Re: Koo, so the Papadogiorgakis criteria are not relevant.
[31]
The applicant also
referred the Court to Collier v. Canada (Minister of Citizenship and Immigration), 2005 FC 1511 per Mr. Justice
Paul Rouleau. That case is distinguishable because the citizenship judge in Collier
failed to identify an “index country”, a country to which the applicant has
greater ties than she has to Canada. No such error
was made in the case at bar since the applicant has strong ties to an index
country -- Saudi Arabia, the country where he has lived for the past 30 years.
Conclusion
[32]
In this case, the applicant could have maximized
his revenue with his consulting business in Saudi
Arabia. After having transferred his assets, moved his
family and purchased a family home in Canada the applicant argued before the Citizenship Judge and this Court
that he had centred his existence in Canada. The applicant then faced a personal choice as to how best to
pursue his livelihood and provide for his family. To do this, he left to work
in Saudi Arabia. The applicant
chose this option because it was in his family’s financial interest. There is
no question that, if the applicant had first obtained citizenship, he would be
free to pursue business opportunities anywhere in the world--including his
previous country of residence--and retain the right to enter and remain in
Canada. Instead, the applicant pursued business opportunities abroad before
situating himself in Canada for
the three year period contemplated under the Act. The result, as found by the
Citizenship Judge, is that he had not yet established residence in Canada. The Court recognizes that
the applicant is an outstanding man, and he will likely be an asset to Canada
as a citizen in the future when his business interests allow him to spend the
required time in Canada to
qualify for citizenship.
[33]
For these reasons,
this appeal is dismissed.
JUDGMENT
THIS COURT
ADJUDGES AND ORDERS that:
This appeal
is dismissed with costs.
“Michael
A. Kelen”
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