Date: 20080110
Docket: T-1403-07
Citation: 2008 FC 36
Ottawa, Ontario, January 10,
2008
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
CHARLES
IKECHUKWU ANAERE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
While
Mr. Anaere asks for “simple justice”, his own actions in leaving the country
for two years while his citizenship application was pending were the cause of
his difficulties. He failed to take even the most fundamental step to protect
his rights; he did not seek professional advice. However, for reasons contained
herein, the Citizenship Judge’s decision is so flawed that it must be quashed.
II. FACTUAL
BACKGROUND
[2]
The
Applicant entered Canada as a landed immigrant on July 12, 1999. In 2002
he filed for Canadian citizenship. He then left Canada to volunteer
on a World University Services Canada (WUSC) project financed by the Canadian
International Development Agency to teach in Vietnam for two
years.
[3]
He
failed to write the knowledge test, made no arrangements to write it out of the
country or to obtain a formal deferral. Despite his own carelessness, the
Citizenship authorities scheduled the test three times after which the file was
closed.
[4]
In
March 2005, the Appellant returned to Canada, and in May 2005 he again
applied for Canadian citizenship. This time he failed the knowledge test and
the Citizenship Judge denied his application. This decision was appealed under Federal
Court file T-611-06 which was subsequently withdrawn.
[5]
Upon
the advice of Citizenship officials and before his first judicial review was
heard, the Appellant applied a third time for citizenship on May 10, 2006. The
period of time relevant to proof of residence was May 10, 2002 to May 10, 2006.
[6]
This
third citizenship application was before the same Citizenship Judge who had
dealt with the second failed application. This time the Citizenship Judge held
that the Appellant had neither the required 1,095 days of physical presence nor
did he satisfy the overarching question in Koo (Re) (F.C.T.D.) (1992),
59 F.T.R. 27 of whether the Appellant regularly, normally or customarily lived
in Canada.
III. ANALYSIS
[7]
As
to the standard of review, I accept the general jurisprudence of this Court
that the conclusion of Canadian residence is reviewed on a standard of
reasonableness.
[8]
I
reject any suggestion that there was something untoward in the Citizenship
Judge hearing this citizenship application after having heard the previous one.
[9]
However,
there are a number of conclusions which, on the evidence, are unreasonable both
as to the specific questions under the Koo test and as to the overall determination
of residence. A few are sufficient to establish the point.
[10]
The
first is with respect to the question in Koo:
Does the pattern of physical presence in Canada indicate a returning home or
merely visiting the country?
[11]
The
conclusion that the Appellant normally and customarily lived in Vietnam ignores
the evidence that the Appellant maintained his personal effects and bank
accounts in Canada and that three-quarters
of his living expenses were deposited into his Canadian account. Moreover, the
conclusion ignores the nature of his presence in Vietnam which was
temporary and for a defined purpose.
[12]
The
second error, also related to the first, is with respect to the question:
Is the physical absence caused by a
clearly temporary situation such as employment as a missionary abroad, studying
abroad as a student, accepting temporary employment abroad, or accompanying a
spouse who has accepted temporary employment abroad?
The Citizenship Judge concluded that the
physical absence was not caused by a temporary situation and that the Appellant
normally and customarily lived in Vietnam during the relevant
four-year period.
[13]
This
conclusion also ignores the fact that the Appellant volunteered to work
temporarily in Vietnam for a defined period on a defined project. If
missionary work in a foreign country does not necessarily reduce one’s
connection to Canada, it is
difficult to see the qualitative difference between the Appellant’s volunteer
work for a Canadian NGO and that of missionary work (except that one is working
for a Higher Authority). Likewise, under Koo, accepting temporary employment
abroad does not necessarily count against an applicant – which is the very
situation in which the Appellant finds himself.
[14]
The
third error is in respect of the issue:
What is the extent of the physical
absences?
The Citizenship Judge concluded that the Appellant
had a strong employment, economic and social connection in Vietnam. The
Citizenship Judge also held that the Appellant did not provide any documents to
prove his connection to Canada.
[15]
This
conclusion ignores the documentary evidence filed which included copies of his
driver’s licence, OHIP card, passport, proof of Canadian taxation and Canadian
bank information, as just a few examples of the documents filed.
[16]
The
conclusion also ignores the fact that the Appellant volunteered with a Canadian
NGO on a project financially backed by an agency of the Canadian government. It
was unreasonable to conclude that the Appellant did not have a significant
connection with Canada.
IV. CONCLUSION
[17]
For
these reasons, this appeal is granted. The decision of the Citizenship Judge is
overturned and the matter is returned to a different Citizenship Judge for
redetermination.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this appeal
is granted, the decision of the Citizenship Judge is overturned and the matter
is to be returned to a different Citizenship Judge for redetermination.
“Michael
L. Phelan”
Email this Content