Docket: T-2409-14
Citation:
2015 FC 699
Vancouver, British Columbia, June 1, 2015
PRESENT: The
Honourable Mr. Justice de Montigny
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BETWEEN:
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Applicant
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and
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CHLOE DANIELLE
PATMORE
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Respondent
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JUDGMENT AND REASONS
[1]
This is a judicial review under
s. 22(1) of the Citizenship Act, RS 1985, c C-29, of a decision by a Citizenship Judge, dated October 24, 2014, approving
the Respondent’s citizenship application. The Applicant challenges the
Citizenship judge’s decision essentially on the basis that he erred in finding
that the Respondent had established residence in Canada after an initial stay
of six days.
[2]
Having carefully considered the record and the
submissions (written and oral) of the parties, I have come to the conclusion
that this application must be dismissed.
Facts
[3]
The Respondent is a citizen of the United
Kingdom (UK). She was landed as a permanent resident of Canada, along with her
family, on January 2, 2008; she was then 17 years of age. She left Canada six
days later to complete her final semester of high school in France. The rest of
her family remained at their new home in Victoria, British Columbia.
[4]
After graduating from high school, the
Respondent completed a dual law degree (English and French law) at University
College in London (England) and at Université Paris II in Paris (France) from
September 2008 to June 2012. During the 2012-2013 academic year, she completed
the Legal Practice Course in London.
[5]
Throughout those years, the Respondent returned
to Canada for short visits. The total number of days of physical presence in
Canada during the relevant period (March 10, 2008 – March 10, 2012) is not
entirely clear, although the differences are not significant for the purpose of
this application. In her Application for Canadian citizenship, the Respondent
listed 10 absences for a total number of 1178 days of absence, whereas in the
Residence Questionnaire completed in July 2012, she listed 11 absences totaling
1202 days of absence. Upon review of her application, a citizenship officer
revised the calculation to 1183 days of absence resulting in 277 days of
physical presence and a shortfall of 818 days of the legislated requirement of
1095 days.
[6]
During her summer vacation in 2008, the
Respondent came to Canada for one month before beginning university in London.
She declared that she worked at Tim Hortons during this period. During her 2009
summer vacation, the Respondent came to Canada for 24 days. She again claimed
that she worked for Tim Hortons during this period. In summer 2010, the
Respondent returned to Canada from May 30 until September 2010 and claims that
she worked at a dress shop. In summer 2011, the Respondent came to Canada for a
17 day period, during which she states that she worked for Cascade Painting
(her father’s business).
[7]
On March 10, 2012, while residing in the United
Kingdom, the Respondent completed an application for Canadian citizenship.
[8]
During her summer 2012 vacation, the Respondent
returned to Canada in May 2012 and volunteered at a law firm in Victoria,
British Columbia, for a period of four weeks in June and July of 2012.
[9]
From the information on the record, it is not
clear when the Respondent returned to Canada or for how long she remained in
Canada after completing the Legal Practice course in 2013, although she
attended an interview with a citizenship judge in July 2013. She later attended
a further interview with the citizenship judge who wrote the impugned decision
on October 24, 2014.
The Citizenship Judge’s
decision
[10]
In a decision dated October 24, 2014, the
Citizenship judge approved the Respondent’s application for Canadian
citizenship. He applied the residency test set out in Re Papadogiorgakis,
[1978] FCJ No 31, [1978] 2 FC 208 [Re Papadogiorgakis], and made the
following findings:
•
During the material time, the Respondent
centralized her mode of living as a minor child living with her family in their
home in Victoria, BC. Although she was in Canada for less than a week after
first arriving in Canada before she returned to France to complete her
secondary education, “in no way could her initial time
in Canada or subsequent periods be called a ‘stay’ or a ‘visit’”;
•
Her absences from Canada were for the temporary
purpose of pursuing her studies and did not break the continuity of her
maintaining or centralizing her ordinary mode of living with her family in
Canada;
•
She returned home at frequent intervals at
Christmas and on summer holidays;
•
She was engaged in Canadian society during those
brief periods through employment (including part-time work at Tim Hortons, at a
clothing shop, and as painter for her father’s business) or social and
charitable activity;
•
She left the bulk of her belongings at her
parents’ house in Victoria and was totally dependent on her parents for the
entire period;
•
The Respondent completed her studies in June
2013 and obtained law degrees from the UK and France;
•
In July 2013, the Respondent informed a
citizenship judge that she intended to remain in Canada and wished to get
accredited as a lawyer;
•
The Respondent must be a Canadian citizen in
order to practice law in Canada.
Issues
[11]
The only substantive issue to be determined in
this application is whether the Citizenship judge erred in his interpretation
of the residence requirement under the Citizenship Act, and more
particularly in finding that the Respondent had initially established residency
in Canada before returning to France to pursue her studies a mere six days
after being landed in Canada.
Analysis
[12]
Subsection 5(1)(c) of the Citizenship Act
sets out three criteria that an applicant must satisfy to be granted
citizenship:
(a) Lawful admission to Canada as a permanent resident;
(b) Retention of permanent resident status; and
(c) The accumulation of at least three years of residence in Canada,
within the four years immediately preceding the date of the application, as
calculated under the prescribed formula set out under the paragraph.
[13]
The third criterion, namely “residence”, is the
issue in this Application. “Residence” is not specifically defined under s 2(1)
of the Citizenship Act. As a result, three tests have emerged in the
jurisprudence of this Court in order to determine whether an applicant has
satisfied the residency requirement. I recently summarized these tests in Boland
v The Minister of Citizenship and Immigration, 2015 FC 376:
[14] In Re Papadogiorgakis, [1978] 2
FC 208, the Court created a test that requires a citizenship judge to assess
the quality of the applicant’s attachment to Canada (the so-called “centralized
mode of living test”). The applicant’s absences from Canada during the relevant
period can be counted towards satisfying the residence requirement where such
absences are for a temporary purpose and the applicant demonstrates an
intention to establish a permanent home in Canada.
[15] The Court articulated a second test in Re
Pourghasemi that requires the citizenship judge to determine whether the
applicant has been physically present in Canada for at least 1095 days during
the relevant period. According to this test, physical presence in Canada is
essential to satisfy the residency requirement.
[16]A third test was developed in Re Koo,
1992 CanLII 2417 (FC), [1993] 1 FC 286 [Koo], drawing on the elements of
the other two approaches. The Koo test requires the citizenship judge to
determine whether Canada is the place where the applicant “regularly, normally
or customarily lives” or has “centralized his or her mode of existence” by
examining six factors to guide the assessment.
[14]
Counsel for the Applicant did not dispute that
the Citizenship judge could apply either one of these tests, and did not submit
that his choice of the “centralized mode of living” test was in error. The
argument, rather, is that the Citizenship judge misapplied the chosen test and
did not properly assess the evidence before him. Despite counsel’s submissions
to the contrary, this is clearly an issue of mixed fact and law, and
citizenship judges are owed a degree of deference on such issues by reason of
their special knowledge and expertise in these matters. Indeed, I would come to
the same conclusion even if a discrete legal issue relating to the
interpretation of one of the tests or, for that matter, the selection of the
proper test, was the issue, for the reasons given by the Chief Justice in Huang
v Canada (Minister of Citizenship and Immigration), 2013 FC 576 (at para
13). These are matters that go to the interpretation of the “home statute” of
citizenship judges, and the Supreme Court has made it clear in a number of
recent decisions that such matters are reviewable on a standard of
reasonableness: see, for example, Alberta (Information and Privacy
Commissioner) v Alberta Teachers’ Association, 2011 SCC 61; Agraira v
Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36;
Smith v Alliance Pipeline Ltd., 2011 SCC 7; McLean v British Columbia
(Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895; Canadian
Artists’ Representation v National Gallery of Canada, 2014 SCC 42, [2014] 2
SCR 197; Ontario (Community Safety and Correctional Services) v Ontario
(Information and Privacy Commissioner), 2014 SCC 31, [2014] 1 S.C.R. 674.
[15]
The Applicant argues that the Citizenship judge
erred in finding that the Respondent had initially established residency in
Canada after a mere six day stay before returning to France and failed to
provide any reasons or analysis as to how the Respondent had established
residence in less than one week. The Applicant further argues that the
Citizenship judge misapplied the test articulated in Re Papadogiorgakis and
erred in finding that the Respondent had met the residence requirement based on
her commitment to return to Canada at every opportunity, her dependency on her
parents and her intention to reside in Canada.
[16]
I agree with the Applicant that in order to meet
the residence requirements under s. 5(1)(c) of the Citizenship Act, an
applicant must first show by objective facts that they have initially
established a residence in Canada. As noted by Madame Justice Layden-Stevenson
in Ahmed v Canada (Minister of Citizenship and Immigration), [2002] FCJ
No 1415 (at paras 4-5), the issue regarding the divergence of opinion in the
Federal Court jurisprudence is not relevant to the issue of whether an
Applicant has established a residence in Canada, but whether or not it has been
maintained (see also: Canada (Minister of Citizenship and Immigration) v
Takla, 2009 FC 1120, at para 50; Canada (Minister of Citizenship and
Immigration) v Camorlinga-Posch, 2009 FC 613, at para 18; Jreige v
Canada (Minister of Citizenship and Immigration), [1999] FCJ No 1469
(QL)(TD), at paras 23-25; Canada (Minister of Citizenship and Immigration) v
Naveen, 2013 FC 972, at para 15 [Naveen]).
[17]
That being said, and with all due respect, I
disagree with counsel for the Applicant that the Citizenship judge did not
provide any reasons for his finding as to how the Respondent had initially
established residence. While his reasons could have been more explicit, the
Citizenship judge found that the Respondent had centralized her mode of living
in Canada even though she departed from Canada a mere six days after having
initially established residency in Canada for a number of reasons:
She was a minor child both on her arrival in
Canada, and on her departure to resume her studies. She had been living with
her parents previously and only returned to France because she was pursuing her
studies there;
Her absences were temporary;
She kept all her goods in the family home
she moved into as a minor child, and took with her out of Canada only those
goods she absolutely required;
She returned to Canada during each break,
even if not for the entire period of those breaks. While in Canada she resumed
living with her family in the family home, she took part-time employment both
in and out of the family business, she volunteered for a charity, she took
recreational trips in Canada, she attended family events, she obtained a
British Columbia Driver’s license, and she sought direction from the Federation
of Law Societies of Canada to receive credit for her education. On that last
point, it is agreed between the parties that the Citizenship judge erred in
holding that the Respondent needed to become a Canadian citizen in order to
practice law in Canada: see Andrews v Law Society of British Columbia,
[1989] 1 S.C.R. 143.
[18]
There is a long line of cases from this Court
suggesting that the period of time an applicant spends in a foreign country to
pursue studies should qualify as residency in Canada even if they have left the
country shortly after having initially established residency: see, for example,
Ng v Canada (Minister of Citizenship and Immigration), [2001] FCJ No 55;
Re Chan, [1997] FCJ No 1457; Canada (Minister of Citizenship and
Immigration) v Luk, [1998] FCJ No 1661; Canada (Minister of Citizenship
and Immigration) v Yeung, [1999] FCJ No 615; Canada (Minister of
Citizenship and Immigration) v Wong, [1999] FCJ No 620; Re Chung,
[1997] FCJ No 732; Re Hsu, [1998] FCJ No 1660; Re Wong, [1998]
FCJ No 1; Re Cheung, [1990] FCJ No 11; Re Khoury, [1995] FCJ No
1518.
[19]
In oral and written submissions, counsel for the
Applicant placed much reliance on the decision of my colleague in Naveen,
supra. As in this case, Ms Naveen had spent only a few days (four) in
Canada before leaving to pursue her educational degree abroad, and she had
spent a total of either 143 or 159 days in Canada during the relevant period.
As in the case at bar, the Citizenship judge had applied the Papadogiorgakis
test to find that Ms Naveen had centralized her mode of living in Canada.
[20]
In that case, Mr Justice Annis acknowledged that
the courts have minimized the importance of physical presence in Canada in
student cases and have treated an inferred intention to return to Canada as the
most salient factor. In other words, the dependency of the student on the
family will be a key factor in assessing the implied intention to return to
Canada. As he stated:
In effect, these decisions piggyback the
students’ residency on that of their families. So long as there is a strong
family nexus and a state of dependency of the student, the requirements of
section 5(1)(c) are considered to have been met.
Naveen, at
para 17.
[21]
Contrary to the situation in Naveen, the
evidence here could reasonably be found to be sufficient to establish this
strong family nexus and a state of dependency. Ms Naveen was 23 years old when
she became a permanent resident in Canada, she had left home at 19 to study in
California until graduating in 2005, and then went to Harvard Medical School. She
had never worked in Canada but did work in the United States as a college
residence advisor, a teaching assistant and a research mentor. Moreover, there
was no evidence showing that the Respondent was dependent on her parents to
subsidise her education.
[22]
It is readily apparent that the situation is
quite different in the case at bar. The Respondent was a minor when she and her
parents arrived in Canada, and as such she was presumably more dependent on her
parents than a young adult who has left home three years before her parents
arrived in Canada. With regard to the Respondent’s financial dependence on her
parents, the Applicant contends that there was no documentary evidence before
the Citizenship judge that the Respondent was financially dependent on her
parents. Yet, both a letter from the Respondent’s parents dated March 22, 2012
and the Respondent’s citizenship application confirmed that she was supported
by her parents throughout her education. In my view, it was not unreasonable
for the Citizenship judge to accept that the Respondent, as a young university
student living in London, was dependent on her parents without requiring
further corroborating evidence. Notably, her parents in their letter offered to
provide additional bank statements to prove her dependence if required.
[23]
With respect to the failure of the Respondent to
return home at every available opportunity, the evidence before the Citizenship
judge indicates that she did so with some regularity at least twice annually. Again,
this is quite different from the situation in Naveen, where the
Respondent apparently repeatedly failed to return to Canada when opportunities
availed themselves.
[24]
In short, the Citizenship judge had the
opportunity to interview the Respondent and to assess her commitment to Canada.
He came to the conclusion that she had centralized her mode of living in
Canada, that her initial establishment and her subsequent visits could not
properly be referred to as “visits or stay” ,
and that she was significantly engaged with Canadian society when in Canada to
the extent her studies permitted. The issue for the Court is not whether it
would have come to the same conclusion, but whether the Citizenship judge could
reasonably come to his conclusion on the basis of the record that was before
him. I believe he could. While his reasons could perhaps have been more articulate,
it cannot be said that they lack intelligibility or that they are not supported
by the evidence. As such, they are defensible and meet the standard of
reasonableness.
Conclusion
[25]
For all of the foregoing reasons, this
application for judicial review is dismissed, without costs.
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