Date: 20070614
Docket: T-798-06
Citation: 2007 FC 633
Toronto, Ontario, June 14, 2007
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
BASHEER IBRAHIM
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
One
is entitled to Canadian citizenship either by birth or by subsequent grant.
Section 5 of the Citizenship Act sets out the bases on which
non-Canadians may obtain citizenship. One requirement is that the applicant be
a permanent resident and has “within the four years immediately preceding the
date of his or her application, accumulated at least three years of residence
in Canada—”. This Court has struggled with the meaning of residence within the
context of the Act for many years.
[2]
Mr.
Ibrahim applied for citizenship on December 18, 2002. During the previous four
year period he was absent 498 days. The Citizenship Judge said he was 133 days
short of the minimum requirement and dismissed his application.
[3]
This
is a judicial review of that decision.
The Facts
[4]
The
facts on which the decision is based are straight forward. Apart from an 18
day personal trip, his absence from Canada for the other 480 days over the four
year period are attributable to his job with a Canadian employer. Except for a
brief trip to France, all that time was spent in Jordan.
[5]
The
documentation on file may well have, as Mr. Ibrahim submits, established that he
resides here and in no other place. His family is here, he pays taxes here, he
banks here, he is part of the community, and spends most of his time here.
Nevertheless the Citizenship Judge, after reviewing the documentation, found he
did not meet the residency requirement.
[6]
He
noted the Act allows a citizenship applicant to reside outside Canada for one of the four years preceding his or her application. He also noted there was
Federal Court jurisprudence holding that “when there are special or exceptional
circumstances,” applicants can meet the Act’s residency requirements without
physically residing in Canada for a minimum of 1,095 days in the four-year
period. The judge found no such circumstances in this case.
Issues
[7]
The
primordial issue is the standard against which the decision should be
reviewed. It has been clearly established that the appropriate standard of
review is reasonableness simpliciter. As long as there is a
demonstrated understanding of the case law, and an appreciation of the facts
and the manner in which the law is applicable to them, the decision should not
be disturbed. See for instance: Chen v. Canada (Minister of Citizenship and
Immigration) 2006 FC 85, [2006] F.C.J. No. 119.
[8]
Did
then the Citizenship Judge demonstrate an understanding of the case law in this
mixed question of both fact and law?
Discussion
[9]
The
unfortunate situation in which Mr. Ibrahim, whom the Citizenship Judge said
would otherwise make a fine citizen, finds himself is that there are three
lines of jurisprudence with respect to the residency requirement for
citizenship purposes.
[10]
In
re: Papadogiorgakis, [1978] 2 F.C. 208, 88 D.L.R. (3d) 243 Thurlow A.C.J.
was of the view that a person is normally resident in Canada only if she or he
is physically present here. However, by way of exception if one has
established permanent residence, then days during which he or she is
temporarily abroad count as Canadian days. This establishment of residency is
still a prime requirement (Goudimenko v. Canada (Minister of
Citizenship and Immigration) 2002 FCT 447, [2002] F.C.J. No. 581 and Ahmed
v. Canada (Minister of Citizenship and Immigration) 225 F.T.R. 215,
2002 FCT 1067.)
[11]
However,
in re: Koo, [1993] 1 F.C. 286, 59 F.T.R. 27, Madam Justice Reed
concluded that the residency test should be based on whether the applicant
“regularly, normally or customarily lives” here. In other words, is Canada the country in which he or she has centralized his or her mode of existence. She
set out a non-exclusive list of six questions which may be of assistance in
reaching such a determination.
[12]
In
contrast, Mr. Justice Muldoon applied a strict physical presence approach in re:
Pourghasemi (1993), 62 F.T.R.122.
[13]
This
divergence in the case law was commented upon by Mr. Justice Lutfy, as he then
was, in Lam v. Canada (Minister of Citizenship and Immigration) (1999),
164 F.T.R. 177. He held it was open to a citizenship judge to apply any one of
the three conflicting lines of jurisprudence, and if the facts of the case were
properly applied to the principles of that approach, the decision should not be
disturbed. Unfortunately, the Act does not allow for appeals to the
Federal Court of Appeal, and the residency requirement has not been clarified by
statute. Thus Lam applies by comity.
[14]
It
is clear that the Citizenship Judge followed Mr. Justice Muldoon’s decision in re:
Pourghasemi, supra.
[15]
Mr.
Ibrahim chose to spend more than one of the four years in question abroad
because of his business. It was not unreasonable for the Citizenship Judge to
determine that his application for citizenship was therefore adversely affected
(Alibhal v. Canada (Minister of Citizenship and Immigration), [2003]
F.C.J. No. 248, 2003 FCT 169 and re: Leung (1991), 42 F.T.R. 149.)
[16]
In
essence Mr. Ibrahim submits that the proper test of residency is that set out
in re: Koo. However, for the reasons aforesaid, as long as one of the
three lines of jurisprudence has been followed and properly applied, the
decision should not be disturbed. The Citizenship Judge made no reviewable
error.
[17]
This
case is distinguishable from that of Canada (Minister of Citizenship
of Immigration) v. Wall 2005 F.C. 110, [2005] F.C.J. No. 146. In
that case a Citizenship Judge’s decision was written out on a printed form
which reflected the principles set out in re: Koo, supra. I held that
unless parts of the printed form were scratched out, there was a presumption
that the judge had intended to follow re: Koo. The judge did not use
that form here and thus there was no onus on him to establish that he was
departing from re: Koo.
ORDER
THIS COURT ORDERS that the judicial review
of the decision of the Citizenship Judge dated May 3rd of 2006 is
dismissed.
“Sean
Harrington”
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