Docket: T-251-17
Citation:
2017 FC 916
Ottawa, Ontario, October 17, 2017
PRESENT: The
Honourable Mr. Justice Southcott
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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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THOMAS CLIFFORD KWASIE VAAH
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
This is an application for judicial review
brought by the Minister of Citizenship and Immigration, seeking to quash a
decision by a Citizenship Judge [the Judge] dated January 19, 2017 [the
Decision], which approved the Respondent’s application for citizenship under s.
5(1)(c) of the Citizenship Act, RSC 1985, c C-29 [the Act].
[2]
For the reasons explained in greater detail
below, this application is allowed. The Decision is not reasonable, because it
does not demonstrate that the Judge considered whether the Respondent
established residence in Canada at the beginning of the relevant time period
or, in assessing whether he remained resident in Canada during his subsequent
absences, considered whether those absences can be characterized as being for a
temporary purpose.
II.
Background
[3]
The Respondent, Mr. Thomas Clifford Kwasie Vaah,
is a citizen of Ghana. He is 48 years old and an employee of the United
Nations. Mr. Vaah entered Canada as a permanent resident on December 24, 2010.
On April 10, 2014, he applied for Canadian citizenship with his spouse and
children as a family unit, despite having a self-declared shortfall of 768 days
in the preceding four year period [the Relevant Period] from the 1,095 days required
under s. 5(1)(c) of the Act. His absences from Canada were due to his work with
the United Nations, for which he is required to travel to war zones around the
world.
[4]
In deciding whether Mr. Vaah satisfied the
residence requirement for Canadian citizenship, the Judge chose to adopt the
analytical approach used in Papadogiorgakis (Re), [1978] 2 FC 208 (FCTD)
[Papadogiorgakis]. The Judge’s analysis, which results in her approving Mr.
Vaah’s application for citizenship, reads as follows:
[19] In Papadogiorgakis, [1978]
2 F.C. 208 (F.C.T.D.), Thurlow A.C.J. considered whether an applicant, who had
been physically present in Canada only for comparatively short periods of time
during the relevant four-year period, continued to be resident in Canada within
the meaning of the Citizenship Act, while he was absent for the purpose
of attending the University of Massachusetts. In his reasons for judgment,
Thurlow A.C.J. stated that:
A person with an established home of
his own in which he lives does not cease to be resident there when he leaves it
for a temporary purpose whether on business or vacation or even to pursue a
course of study. The fact of his family remaining there while he is away may
lend support for the conclusion that he has not ceased to reside there. The conclusion
may be reached, as well, even though the absence may be more or less lengthy.
It is also enhanced if he returns there frequently when the opportunity to do
so arises.
It is, as Rand J. appears to me to be
saying in the passage I have read, “chiefly a matter of the degree to which a
person in mind and fact settles into or maintains or centralizes his ordinary
mode of living with its accessories in social relations, interests and
conveniences at or in the place in question”.
[20] The Applicant bought a house and
carried a big mortgage. He returns every six to eight weeks to be with his
family. In his culture, the father figure is very important to the children. He
has established his home in Canada and he does not go anywhere else. He does
not cease to be resident when he leaves for UN assignments which provide a
livelihood for his own family and he sometimes sends money to his eight
siblings in Ghana to alleviate their poor living condition.
[21] It is obvious that he has
maintained his ordinary mode of living here with his family in Canada - his
spouse is gainfully employed here and his children are all going to school or
university. Canada is his home, even though he does not have the luxury of
staying here all the time.
[22] Given the foregoing, I find that
the Applicant did not cease to be resident in Canada during his absences and
that he centralized his mode of existence in Canada during the relevant period.
III.
Issues and Standard of Review
[5]
The issue raised by the Minister is whether the
Judge erred in her application of the principles of the analytical approach set
out in Papadogiorgakis. The parties agree, and I concur, that the
applicable standard of review is reasonableness: Kohestani v Canada
(Citizenship and Immigration), 2012 FC 373 at para 12.
IV.
Analysis
[6]
The Minister submits, and Mr. Vaah does not
dispute, that a citizenship judge’s assessment whether an applicant meets the
residence requirements of s. 5(1)(c) of the Act involves a two-step test. The judge
must first decide, as a threshold issue, whether the applicant has established
residence in Canada prior to or at the beginning of the relevant time period.
If so, the next question is whether the applicant has the required number of
days of residence in that time. It is in answering that second question that
the judge can choose different analytical approaches, including the
Papadogiorgakis analysis selected by the Judge in the case at hand: Canada
(Citizenship and Immigration) v Ojo, 2015 FC 757 at paras 25-26; Canada
(Citizenship and Immigration) v Udwadia, 2012 FC 394 at para 21.
[7]
The Minister argues that the Judge erred by
failing to determine if Mr. Vaah met the threshold issue of demonstrating his
establishment of residence in Canada before assessing his absences. Mr. Vaah’s
position is that the Decision demonstrates that the Judge did make an explicit
finding on this question and that, even in the absence of an explicit finding,
a conclusion on the threshold issue can be implicit in a judge’s decision when
read in the context of the evidence on the record: Canada (Citizenship and
Immigration) v Ileubby, 2016 FC 946 at paras 44 and 52. Mr. Vaah refers to
the Judge’s finding that he “has established his home
in Canada and he does not go anywhere else” and “has
maintained his ordinary mode of living here with his family in Canada.”
[8]
I am unable to conclude that the Decision
demonstrates either an explicit or implicit finding on the threshold issue.
While the Judge does state that Mr. Vaah has established his home in Canada,
this statement follows the Judge’s reference to Mr. Vaah having bought a house,
carrying a big mortgage, and returning every six to eight weeks to be with his
family. It is therefore not clear that the reference to establishing a home can
be read as a conclusion that Mr. Vaah established residence in Canada at the
beginning of the Relevant Period. This is particularly the case given that, as
noted by the Respondent at the hearing of this application, the house purchase
referenced by the Judge took place in 2012, well into the Relevant Period. Nor
can I conclude that the Judge’s reference to Mr. Vaah maintaining his ordinary
mode of living here with his family in Canada can be interpreted as a
conclusion on the threshold issue.
[9]
The Minister notes that Mr. Vaah first arrived
in Canada on December 24, 2010, acquiring permanent resident status on that day,
and then stayed in Canada for only 12 days before leaving on his next overseas
assignment on January 6, 2011. The Minister therefore relies on the decision in
Canada (Citizenship and Immigration) v Ntilivamunda, 2008 FC 1081 [Ntilivamunda],
which considered a somewhat similar set of circumstances in which an applicant,
who worked abroad as a physician with the World Health Organization [WHO], arrived
in Canada and spent only 22 days here before leaving to resume his work abroad.
Justice Martineau concluded, at paragraphs 13-14, that the citizenship judge
had erred in granting citizenship to the respondent in that case, because the
22 day stay in Canada before leaving again for abroad was clearly insufficient
to amount to genuine establishment of residence within the meaning of the case
law.
[10]
As every application for citizenship turns on
its own individual set of facts, I am not concluding that Ntilivamunda necessarily
precludes a favourable result in Mr. Vaah’s citizenship application. However,
given Justice Martineau’s decision in relation to the threshold issue in that
case, I cannot find that the Judge addressed it in the case at hand in the
absence of a clear and supportable analysis and conclusion on that issue.
[11]
The Minister also argues that the Judge erred in
considering the second question relevant to the residency analysis, i.e whether
the applicant has the required number of days of residence in the relevant time
period. The Minister’s position is that the Judge did not consider a factor fundamental
to the Papadogiorgakis analysis, which is whether Mr. Vaah’s absences
from Canada can be considered temporary, given their nature, frequency and
length. The Minister notes that, as a consequence of his overseas employment,
Mr. Vaah has had absences of 6 to 8 weeks abroad, following which he would
return to Canada for an average of 21 days between assignments, and that at no
time did he spend more than 42 continuous days in Canada since he acquired
permanent residence.
[12]
Again, the Minister relies on Ntilivamunda,
in which the respondent’s employment with the WHO resulted in him having stays
in Canada averaging 28 days between assignments and overall only 167 days of
physical presence in Canada during the relevant period. Justice Martineau
concluded at paragraph 17 of that decision that the respondent’s physical
absences from Canada were due to a permanent situation, not a temporary one.
[13]
It is noteworthy that, while the respondent in Ntilivamunda
indicated he intended to retire from the WHO in eight years, Justice Martineau concluded
that the respondent’s future intentions were not relevant in assessing the
nature of the absences during the relevant period. In the case at hand, Mr.
Vaah notes that he explained to the Judge at his citizenship hearing that, once
he was granted Canadian citizenship, he wished to apply for employment with the
Canadian Foreign Service. However, there is no indication in the Decision that
the Judge that took this evidence into account in assessing whether Mr. Vaah’s
absences for his employment could be characterized as being for a temporary
purpose. Indeed, there is no explicit analysis of this question in the Decision
at all.
[14]
As with the threshold issue, because of the
fact-specific nature of each citizenship application, I am not concluding that Ntilivamunda
necessarily precludes a conclusion that Mr. Vaah’s absences for his overseas
employment can be characterized as temporary in nature. However, as that case
clearly raises a concern whether a pattern of repeated absences for overseas
employment can be characterized as temporary, I again find that the Decision is
not reasonable in the absence of a clear and supportable analysis and
conclusion on that issue.
[15]
Having identified the errors explained above, my
conclusion is that the Decision is unreasonable, and this application for
judicial review must be allowed. Neither party proposed any question for
certification for appeal, and none is stated.
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