Date: 20080226
Docket: T-406-07
Citation: 2008 FC 255
Toronto, Ontario, February 26, 2008
PRESENT: The Honourable Madam Justice Simpson
BETWEEN:
VARANT
PANOSSIAN
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
issue before the Citizenship Judge (the Judge) was whether the Applicant had
satisfied her that he had established and maintained a centralized mode of
existence in Canada. In a
decision dated January 11, 2007 (the Decision), she concluded that she was
not so satisfied and therefore refused his application for Canadian
citizenship. These reasons deal with his appeal from that Decision.
BACKGROUND
[2]
The
Applicant is a citizen of Lebanon by birth. With
his brother and parents, he became a permanent resident of Canada on
August 8, 1987. However, one month later, on September 6, 1987, the
Applicant traveled to Cyprus with his family where he completed his elementary
and high school education. He then attended university in the United States and
graduated on December 18, 1999 with a Bachelor of Science in Aerospace
Engineering. Shortly thereafter, on December 26, 1999, he returned to Canada
to seek employment, and in May 2000, he was hired by Goodrich Aerospace Canada
Ltd. (Goodrich). It is a Canadian company with facilities in Oakville. The
Applicant worked there between May 2000 and January 2002 as a Systems
Integrator for Landing Gear and Flight Control Systems. During this period, the
Applicant resided in two rented apartments and the Respondent acknowledges that
he established his residence in Canada.
[3]
However,
on January 2, 2002, the Applicant accepted an assignment with Goodrich which
took him to Germany for a
maximum of one year. That assignment was completed in October 2002. He was
immediately assigned to another Goodrich project in the United
Kingdom.
He stayed there until April 2004 and then accepted a further assignment in France which,
although initially for two years, could be extended by agreement. The Applicant
continues to work for Goodrich in France today. During these
assignments, he kept no residence in Canada and there is no
evidence that he left goods in storage here. On his monthly business trips to Canada he stayed in
accommodation supplied by Goodrich, with his aunt in Thornhill, Ontario and with his
brother at McGill University in Montreal. While overseas, he lived
in accommodation provided by Goodrich.
THE CITIZENSHIP
APPLICATION
[4]
The
Applicant’s Application for Citizenship was made on April 30, 2004. This
meant that the relevant period for examining compliance with the residency
requirements in paragraph 5(1)(c) of the Citizenship Act, R.S.C. 1985,
c. C-29 (the Act) runs from April 30, 2000 to April 30, 2004 (the
Period).
[5]
In
the Period, the record is clear that the Applicant was not resident in Canada for the
three years or 1095 days required by the Act.
[6]
What
is not clear is the number of days the Applicant was absent from Canada. He changed
the figures three times while his citizenship application was being considered.
His initial figure was 731 days absent during the Period. This calculation
produced a shortfall of 366 days from the required 1095 days. In his second
submission, he reported 681 days absent and his final submission showed that he
was away from Canada for 541 days in the Period (or put another way, he was present
for 919 days and therefore 176 days short). Because of this substantial change,
the Citizenship Judge concluded that she did not have credible evidence on this
issue.
THE ISSUES AND THE STANDARD
OF REVIEW
[7]
In
this case, the Judge chose to apply the factors in Re Koo, [1993] 1 F.C.
286 (T.D.) at 293-294 to determine whether they suggested that the Applicant
had centralized his mode of existence in Canada.
[8]
The
factors are:
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
employment abroad?
6.
what
is the quality of connection with Canada: is it more substantial
than that which exists with any other country?
(Together the
Koo Factors)
[9]
An
analysis of the Koo Factors involves mixed questions of fact and law. In
this particular case, they were largely factual and involved the exercise of
discretion and credibility findings. These factors suggest deference.
[10]
On
the other hand, the presence of a right to appeal and the fact that the inquiry
relates to an individual and a lack of relative expertise suggest less
deference. In these circumstances, I accept the parties’ submissions that
reasonableness simpliciter is the appropriate standard of review.
THE CITIZENSHIP JUDGE’S
DECISION
[11]
The
Respondent concedes that errors were made in the Decision but submits that none
are material. The Applicant, on the other hand, says that many of the errors are
material and that the application should be reconsidered by a different
Citizenship Judge.
[12]
In
my view, the following errors were made:
(i)
The
Applicant returned to Canada in December 1999 and not in May of 2000 as
the Decision suggests. Further, the Decision suggests that the Applicant left Canada on
November 1, 2001. However, the record is clear that he did not leave for Germany until
January 2, 2002. Nevertheless, these errors were not material because the
Judge took no issue with the fact that the Applicant initially established his
residence in Canada.
(ii)
The
Decision also suggests that the Applicant surrendered his landing documents. In
truth this step was taken by the Applicant’s parents when he was still a minor.
In any event, the Decision correctly shows that his permanent resident status
was reinstated and for this reason I have concluded that this error was not
material.
(iii)
The
Judge also noted that the Applicant’s immediate family lived abroad in the
Period. This statement was true for the Applicant’s parents, but until 2003,
the Applicant’s brother lived in Montreal while attending McGill University. That said,
it is also clear that his brother had not established Canada as his place
of residence. He left after graduation and did not return in the Period. For
this reason, I have concluded that this error was also immaterial.
(iv)
The
Decision incorrectly indicates that the Applicant did not have a Canadian
driver’s licence in the Period. Although he did have a licence, there was no
evidence that he kept a car in Canada during the Period so again I have
concluded that this error was immaterial.
(v)
The
Judge concludes that the Applicant’s connection to Cyprus and the United
States
would be closer than his connection to Canada. However, the
evidence showed that, in the Period, he was only in Cyprus for six days and in the
United
States
for nineteen days. Nevertheless, I think this error is immaterial because in
the Period, the Applicant did not demonstrate a closer connection to Canada than
elsewhere. The record shows that at the end of the Period, he had no
significant assets in Canada, no immediate family in Canada, no
residence and no certainty of employment with Goodrich in Canada once his overseas
assignment ended.
(vi)
The
Decision notes that the Applicant has “some” extended family in Canada. This gives
an understated impression because he actually has nineteen extended family
members who are Canadian citizens. Nevertheless, the fact that the Applicant
has a particular number of family members who are Canadian citizens and
residents does not make him a resident. For this reason, the precise size of his
extended family is not material.
[13]
The
Applicant notes that no mention is made of the fact that the Applicant’s
employer is a Canadian company, that his assignments were temporary and that
the Applicant was required to return to Canada monthly (on average) during his
foreign assignments. However, neither an employer’s place of business nor its
requirements for visiting head office confer resident status on an absent
employee who is an applicant for citizenship, see Leung, Re (1991), 42
F.T.R. 149 at paragraph 32. Further, I have determined that the Judge could not
properly have described all the assignments as temporary. The one in Germany might be so
described but the assignments in the UK and France were not for
fixed terms. Each contract could be extended indefinitely as long as the
parties agreed and none of the contracts committed the employer to rehiring the
Applicant in Canada.
Accordingly, in my view, these criticisms do not disclose material errors.
[14]
The
Applicant says that the Judge erred in failing to make a definitive finding
about the Applicant’s days present and absent in the Period. However, given the
Judge’s concerns about the Applicant’s credibility, there was no reliable
evidence on which she could base a precise finding.
[15]
The
Judge concluded that the Applicant had not spent a long period resident in Canada before he
began to accept overseas assignments. The Applicant says that the period was
nearly two years and represented his entire post-graduation life. He says that
“long” must be considered in that context and that his stay is improperly
described as a “short stay”. However, in my view, the Judge did not err. Two
years is not a long time. This conclusion is generally consistent with
Mr. Justice Mosley’s decision in Khan v. Canada (Minister of
Citizenship and Immigration) 2006 FC 47 in which he upheld a
Citizenship Judge’s conclusion that eighteen months was not a lengthy stay in Canada.
[16]
The
Applicant also submits that he was owed a duty of fairness which was violated.
The violation allegedly occured because the Act and the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) and the Immigration and
Refugee Protection Regulations, SOR/2002-227 (the Regulations) are at
variance in the sense that the residency requirement under the Act to obtain
citizenship (subsections 5(1) and 5(1.1)) is different from the residency
requirement to retain permanent resident status under the IRPA (section 28) and
the Regulations (subsection 61(1) and (3)).
[17]
Specifically,
the Applicant complains that under IRPA and its Regulations, employment
overseas with a Canadian company counts towards fulfillment of his residency
obligation while such employment is not provided by the Act as a method of
meeting its residency requirement.
[18]
In
my view, this submission is without merit. There is nothing unfair about Canada’s decision
to impose more stringent residency obligations on those who choose to apply to
become citizens.
CONCLUSION
[19]
Although
residency was established in the Period, it was not maintained. By choosing to
live and work abroad on an ongoing basis through the second half of the Period,
the Applicant became a visitor when he returned to Canada to see his
relatives and business colleagues. Although he made such trips regularly and
spent considerable time here on such visits, and although he based his financial
affairs here, those facts did not change the fact that he did not centralize
his mode of existence in Canada. He lived and worked abroad.
JUDGMENT
UPON reviewing
the material filed and hearing the submissions of counsel for both parties in Toronto on
August 27, 2007;
THIS COURT
ORDERS AND ADJUDGES that for the
reasons given above the appeal is dismissed. No order is made as to costs.
“Sandra
J. Simpson”
Email this Content