Date: 20081028
Docket: T-563-08
Citation: 2008
FC 1205
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
DIEGO ALBERTO FIGUEROA CASTRO
Respondent
REASONS FOR JUDGMENT
GIBSON D.J.
I. Introduction
[1]
These
reasons follow the hearing of an appeal brought by the Applicant under ss.14(5)
of the Citizenship Act.
The Applicant seeks an order or judgment allowing the appeal and quashing the
decision of a Citizenship Judge allowing the Respondent’s application for
Canadian citizenship. The decision at issue is dated the 11th of
February, 2008. The Applicant alleges that the Respondent failed to meet the
residency requirement set out in paragraph 5(1)(c) of the Act. In general
terms, that provision requires that an applicant for Canadian citizenship must
be “resident” within Canada for a period or periods amounting to three
years within the four years immediately preceding the date of his or her
application.
II. Background
[2]
The
Applicant arrived in Canada on the 3rd of August, 1999, on
a student permit. At the time of his arrival, the Applicant was a citizen of Mexico. On the 5th
of April, 2001, he was granted permanent resident status in Canada in the
skilled worker category. In Canada, he completed both his undergraduate degree
and a first level post-graduate degree and then worked in Canada for a period
of time and for the University where he had studied.
[3]
On
the 11th of January, 2007, the Applicant applied for Canadian
citizenship. Thus, the relevant period for determining whether or not the
Applicant met the residency requirement set out in paragraph 5(1)(c) of the Act
commenced on the 11th of January, 2003.
[4]
On
the 1st of August, 2003, the Applicant left Canada to return to
Mexico where his
parents and sister continued to live. He remained in Mexico until the 5th
of August, 2005, which is to say, for 734 days, after which he returned to Canada. During his
stay in Mexico, the
Applicant was for a time unemployed, he was then self-employed and finally he
was employed by Hewlett Packard.
[5]
Following
his return to Canada, and until the date of his application for Canadian
citizenship, the Applicant was absent from Canada on four separate occasions,
twice on holiday in Mexico, once to attend a wedding in Mexico and once to
attend a conference in the United States. In the result, in the relevant
period, the Applicant was absent from Canada for 817 days and was
present in Canada for 643
days. Thus, his physical presence in Canada was somewhat short of
the statutory residence requirement to qualify for Canadian citizenship. However,
the issue does not end there. The concept of “residence” in Canada has been
interpreted not to require physical presence in Canada in all
circumstances.
III. The Decision under Review
[6]
The
learned Citizenship Court Judge determined that the Applicant met the residency
requirement and in so doing applied the test enunciated by Justice Reed in Re
Koo. In that
decision, Justice Reed wrote:
The
conclusion I draw from the jurisprudence is that the test is whether it can be
said that Canada is the place where the
Applicant “regularly, normally or customarily lives”. Another formulation of
the same test is whether Canada is the country in which he or
she has centralized his or her mode of existence. Questions that can be asked
which assist in such a determination or:
(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 dependants (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 deem residence than of 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 the
connection with Canada: is it more substantial than
that which exists with any other country?
[7]
The
learned Citizenship Court Judge responded to the foregoing questions as follows:
(1) Yes, Client came to Canada, studied Master of Science at
York University started his company in Edmonton. Working for HP.
(2) Mother, father, sister live in
Mexico. Good circle of friends and
business associate in Canada.
(3) Canada is his home. He has
centralized his mode of existence in Canada.
Bank records, work, NOA, education, Travelling for business purposes
(4) In the relevant period he has
been travelling for business and has been away 817 days vs. 643 days in. He is
travelling for business and has strong ties to Canada.
(5) It is a temporary situation,
he wishes to be transferred back to HP Canada.
(6) Strong connection, Studies for
masters degree, pays taxes, running business.
[8]
In
the form in which the foregoing answers appear, under the heading “reasons”,
the following appears:
Client has sufficiently strong ties to Canada, Pay [sic] taxes, Bank
account, business set up, work for HP travels for business. I am satisfied this
to meets [sic] the residency requirements of the Act. Good knowledge about Canada – Approved.
[9]
In
the same form, under the heading “decision”, the Citizenship Judge wrote:
I am satisfied that the client has
sufficiently strong ties to Canada. He has lived here for
considerable length of time. Studied, set up business, pays taxes, travelling
for business.
Good knowledge about Canada Approved.
IV. The Issues
[10]
As
in all matters such as this, the issue of standard of review arises. A second
issue here before the Court is whether or not the appropriate test has been properly
applied against the relevant standard of review or, put another way, are the
reasons of the citizenship judge for finding as he or she did that the
Applicant has or has not discharged his or her onus, intelligible and justified
by the evidence.
[11]
In
a case somewhat similar to this, Chen v. Canada (Minister of
Citizenship and Immigration), Justice
Dawson wrote at paragraphs 3-5 and 18 of her reasons:
The term “residence” is not defined under
the Act or the Citizenship Regulations, … The Court has effectively
established two types of tests for residence: one quantitative and the other
qualitative. The first requires an applicant to be physically present in Canada for a total of three years,
calculated on the basis of a strict counting of days…. The second adopts a more
contextual and flexible reading of residence, requiring an applicant to have a
strong connection to Canada or to centralize his or her mode of living in Canada… It is open to a citizenship
judge to choose one of these recognized approaches, and it is the role of the
Court, on judicial review, to determine whether the chosen test has been
properly applied…
In this case, the citizenship judge adopted
the test set forth in Pourghasemi [the quantitative test and not the
test adopted here]. This is evidenced by her expressed reference to the
question at issue: [has] the applicant met the residency requirement of 1095
days in Canada and is the information
provided credible?
Whether Mr. Chen established
that he was physically present in Canada
for 1095 days is a question of fact. I am satisfied, and the parties agree,
that the judge’s finding on this point is reviewable on the standard of
reasonableness…
…
To summarize, the onus was on
Mr. Chen to provide sufficient evidence to establish that he met the residency
requirement of the Act. Statements made in an application for citizenship need
not be taken at face value. … The reasons of the citizenship judge for finding
that Mr. Chen had not discharged his onus were intelligible and, with the one exception
noted above, were justified by the evidence. The decision is defensible in fact
and law, and so falls within the range of acceptable outcomes. The decision
was, therefore, reasonable.
[citations omitted]
[12]
Counsel
before me were satisfied that here, as in Chen, the appropriate standard
of review is reasonableness. I agree. Against that standard then the issue
that remains, paraphrased from the last quoted paragraph from Chen, are
the following:
are the reasons of the Citizenship Judge
for finding that the respondent had discharged his onus to provide sufficient
evidence to establish that he met the residency requirement of the Act
intelligible and justified by the evidence?
V. Analysis
[13]
Against
the standard of review of reasonableness, I am satisfied that the response to
the issue question just stated above must be: “No”. Put another way, I
conclude that the decision here under appeal is not defensible in fact and law
and so does not fall within the range of acceptable outcomes.
[14]
In
the responses quoted above to the Re Koo issue questions also quoted
above, the Citizenship Judge evidences confusion, misunderstanding and
vagueness. It cannot be determined how his answers to the questions support
the conclusion that he reaches. Examples follow.
[15]
In
response to the first question it must be noted that the Respondent’s most
significant absence from Canada extending for slightly in excess of two years,
ended in early August, 2005, almost a year and a half before the Respondent’s
application for Canadian citizenship was filed. During that absence, the
Respondent worked in Mexico for Hewlett Packard and, during the same
absence, and before working for Hewlett Packard, he was apparently
self-employed.
[16]
In
response to the second question, the Citizenship Judge correctly acknowledges
that all of the Respondent’s immediate family lived in Mexico. There is
no evidence that he has any dependants. The Citizenship Judge’s reference to a
“good circle of friends and [a] business associate in Canada” is hardly
relevant to the question and is not elaborated upon.
[17]
The
response to question 3 only obliquely answers the related question and is not
supported by any analysis, and is certainly without any balancing of whether
the Respondent is more closely tied to Mexico and his family there than he is
to Canada. The reference to “travelling for business purposes” simply does not
appear to be consistent with the evidence regarding the Respondent’s long stay
in Mexico.
[18]
The
Citizenship Judge’s response to question 4 simply repeats what he has earlier
written. The reference to the effect that the Respondent “… has been travelling
for business…” in the relevant period is not consistent with the evidence.
[19]
The
response to question 5 is confusing. There is no explanation whatsoever as to
why the Citizenship Judge concludes that, presumably the Respondent’s long
absence in Mexico is “… a
temporary situation…” is non-existent and inconsistent with the evidence of the
Respondent’s activities post his application for Canadian citizenship.
[20]
Finally,
the statement in response to the last question to the effect that the
Respondent has a strong connection to Canada based on his studies, his payment
of taxes and his running of a business, all presumably in Canada, is
inconsistent with the totality of the evidence and is unresponsive to the
question in that it is in no sense a comparative analysis.
[21]
For
the foregoing brief reasons, I conclude that the decision under appeal, against
the standard of review of reasonableness, cannot stand. The decision, on its
face, is simply not defensible either in fact or in law. In the result, it
does not fall within the range of acceptable outcomes.
VI. Conclusion
[22]
This
appeal is allowed. The decision under appeal, dated the 11th of
February, 2008 and approving a grant of Canadian citizenship to the Respondent
is quashed.
“Frederick E. Gibson”
OTTAWA, ONTARIO
October 28, 2008
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