Date: 20170726

Docket: T-206-17

Citation: 2017 FC 723

[ENGLISH TRANSLATION]

Montréal, Quebec, July 26, 2017

PRESENT: The Honourable Mr. Justice Shore

BETWEEN:

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Applicant

and

MOTCHIAN AMAN

Respondent

JUDGMENT AND REASONS

I.                    Introduction

[1]               The Citizenship Act, RSC 1985, c. C-29 [Act] is not arbitrary regarding the time a person must be present to become a Canadian citizen. A line has been drawn and must be drawn to ensure that the time that a person must be present in Canada to become a Canadian citizen does not become optional or speculative. Clearly a range of exceptions could demonstrate that the Act leads to situations that are incomprehensible, given that a lack of employment often places an individual between a rock and a hard place in terms of the essential timelines for establishment in Canada. This is reflected in the decisions of judges, who are also between a rock and a hard place, knowing that the interpretation of the Act leads to a result that is hard to deliver and thus to accept, but it is nonetheless the Act that does not offer any choice in those types of cases before the Court.

There exists a long line of authority from this Court wherein it has been determined that to meet the requirements of the Citizenship Act, residence must first be established and then it must be maintained: Canada (Minister of Citizenship and Immigration) v. Chen, [1999] F.C.J. No. 877 (T.D.) per Richard, A.C.J. (as he then was); Canada (Minister of Citizenship and Immigration) v. Yu, [1999] F.C.J. No. 421 (T.D.) per Lutfy, J.(as he then was); Canada (Secretary of State) v. Yu (1995), 31 Imm.L.R. (2d) 248 (F.C.T.D.) per Rothstein, J. (as he then was) [now Supreme Court Justice]; Re Sun (1992) 58 F.T.R. 264 per Noël, J. (as he then was); Re Choi, [1997] F.C.J. No. 740 (T.D.) per Nadon, J. (as he then was); Young v. Canada (Minister of Citizenship and Immigration) (1999) 9 Imm. L.R. (3d) 234 (F.C.T.D.) per Evans, J. (as he then was); Chan v. Canada (Minister of Citizenship and Immigration), supra; Badjeck v. Canada (Minister of Citizenship and Immigration) (2001) 19 Imm. L.R. (3d) 8 (F.C.T.D.) per Rouleau, J.; Re Shaw (1991), 49 F.T.R. 270 per Pinard, J.; Re To (1997), 37 Imm. L.R. (2d) 274 (F.C.T.D.) per Teitelbaum, J.; Re Lo (1996), 128 F.T.R. 247 per MacKay, J.; Canada (Minister of Citizenship and Immigration) v. Liu, [2000] F.C.J. No. 323 (T.D.) per Gibson, J.; Canada (Minister of Citizenship and Immigration) v. Rahman, [1999] F.C.J. No. 655 (T.D.) per Simpson, J.; Jreige v. Canada (Minister of Citizenship and Immigration) (1998) 175 F.T.R. 250 per Lemieux J.; De Lima v. Canada (Minister of Citizenship and Immigration) 2002 FCT 852, [2002] F.C.J. No. 1139 per Martineau, J.; Re Papadogiorgakis, [1978] 2 F.C. 208 (T.D.) per Thurlow, A.C.J.; Canada (Minister of State, Multiculturalism and Citizenship) v. Shahkar, [1991] 1 F.C. 177 (T.D.) per Addy, J.; Re Hung (1996), 106 F.T.R. 236 per Dubé, J.; Canada (Minister of Citizenship and Immigration) v. Ho (1999) 48 Imm.L.R. (2d) 262 (F.C.T.D.) per Cullen, J.; Canada (Secretary of State) v. Martinson (1987), 13 F.T.R. 237 per Martin J. [Reference added]

(Ahmed v Canada (Minister of Citizenship and Immigration), 2002 FCT 1067.)

II.                 Nature of the case

[2]               This is an application for judicial review of a decision by a citizenship judge who, on January 5, 2017, approved the respondent’s application for Canadian citizenship under the requirements of paragraph 5(1)(c) of the Act.

III.               Facts

[3]               The respondent, a 49-year-old citizen of Côte d’Ivoire, arrived in Canada as a permanent resident on December 17, 2008. His spouse and their two youngest children also became permanent residents on December 17, 2008, while their oldest son became one on February 15, 2009.

[4]               Before arriving in Canada, the respondent and his spouse were in Geneva, Switzerland, and both worked for the United Nations Office of the High Commissioner for Refugees [HCR]. When they moved to Canada, the respondent’s spouse began graduate studies and their children began attending school, while the respondent resumed his foreign missions for the HCR on January 11, 2009. Despite his experience and qualifications, he was unable to find work in Canada and had to meet his family’s needs while waiting for his spouse to find work. When his spouse completed her studies and found a job in Canada, the respondent apparently returned to begin searching for a job from February to October 2013. When his spouse was laid off after 20 months, he had no choice but to accept another foreign mission for the HCR.

[5]               The respondent’s spouse and two youngest children obtained Canadian citizenship on August 1, 2014.

[6]               On July 24, 2014, the respondent filed an application for Canadian citizenship, with the qualifying period being from July 24, 2010 to July 24, 2014. During the relevant period, he reported 1,040 days of absence and 420 days in Canada, a shortfall of 675 days of physical presence.

[7]               On December 2, 2015, the respondent went to an interview with a citizenship officer and wrote a citizenship exam, with a result of 19/20. On January 5, 2017, the respondent appeared at a hearing before a citizenship judge.

IV.              Decision

[8]               On January 5, 2017, the citizenship judge found, on the balance of probabilities, that the respondent respected the residency obligation set forth in paragraph 5(1)(c) of the Act.

[9]               The citizenship judge chose to apply the qualitative residency tests developed in Koo (Re), [1993] 1 FCR 286, 1992 CanLII 2417 (FC) [Koo] to determine whether the defendant had centralized his mode of existence in Canada.

[10]           The citizenship judge found that Canada was the place where the respondent “regularly, normally or customarily lives”, based on the six questions proposed by Reed J. in Koo:

[translation]

1. The applicant was physically present in Canada for an extended period prior to recent absences which occurred immediately before his application for citizenship. He arrived on December 17, 2008, and was therefore in Canada approximately 19 months before the start of the period at issue.

2. The applicant’s immediate family and dependents, i.e. his spouse and their three children, live in Canada and were studying or working in Canada during the period at issue.

3. The applicant’s pattern of physical presence indicates that he returned to his country. At the end of each humanitarian mission, he reported that he returned home.

4. The scope of the applicant’s physical absences from Canada represent a shortfall of 675 days of physical presence. However, the applicant met the requirements, given the reasons for his temporary absences and the fact that he always returned to Canada, where he built his life with his family.

5. The applicant’s physical absence is attributable to a clearly temporary situation, as all his trips were done for his work with the HCR, which gave him contracts of varying length. He filed his income tax returns and paid taxes in Canada throughout the period at issue.

6. The applicant has strong ties to Canada. His spouse and children live and work here. The applicant and his spouse have owned a family home in Canada since 2009 and a condo occupied by their son since 2011.

V.                 Issue

[11]           The parties identified the following issue: Did the citizenship judge commit an error in finding that the respondent met the requirements set out in paragraph 5(1)(c) of the Act?

[12]           The parties agreed that the standard of reasonableness applies to a decision by a citizenship judge (Dunsmuir v New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, at para 47; Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), [2011] 3 SCR 708, 2011 SCC 62, at para 12 [Newfoundland Nurses]).

VI.              Relevant provisions

[13]           At the time when the respondent applied for citizenship, the Act stated:

VII.            Analysis

[14]           For the following reasons, this application for judicial review is allowed.

A.                 First aspect – The prior condition of establishment in Canada from the Koo test

[15]           The applicant claims that the citizenship judge committed errors in applying the Koo test. First, the citizenship judge apparently failed to analyze whether the respondent met the first aspect of the Koo test, namely the prior condition of establishing his residence in Canada (Canada (Citizenship and Immigration) v Chang, 2013 FC 432, at para 4 [Chang]; Canada (Citizenship and Immigration) v Ojo, 2015 FC 757, at para 25-27 [Ojo]; Canada (Citizenship and Immigration) v Maher, 2016 FC 42, at para 35; Canada (Citizenship and Immigration) v Huang, 2016 FC 1348, at para 6). She apparently did not explicitly address the preliminary issue and her reasons allegedly cannot be identified if she did. The applicant noted that, during his initial stay of 25 days in Canada, the respondent took steps to settle his spouse and children, but that his family’s establishment is not the same as his own establishment, which the citizenship judge allegedly confused (Canada (Citizenship and Immigration) v Ntilivamunda, 2008 FC 1081, at para 13 [Ntilivamunda]). The decision was apparently tainted by a critical error because it was unreasonable to find that the respondent had established his residence in Canada prior to the qualifying period.

[16]           The respondent claimed, to the contrary, that the citizenship judge implicitly found that he had established his residence in Canada since December 17, 2008, based on clear facts showing that he had fully, permanently, and unequivocally transferred his ties to Canada (Ojo, above, at para 28). It can be concluded that the citizenship judge was satisfied that the prior condition was met (Tulupnikov v Canada (Citizenship and Immigration), 2006 FC 1439, at para 14; Canada (Citizenship and Immigration) v Tazaki, 2011 FC 1173, at para 32). Moreover, the respondent’s case apparently differs from the cases cited by the applicant, as he did not maintain ties with his country of origin (Ojo, above), has no home or family other than in Canada (Chang, above), and did not return to his country of origin to continue working (Ntilivamunda, above).

[17]           The Court feels that this issue is not a determining factor for the outcome of this judicial review and is satisfied with the respondent’s arguments that the citizenship judge implicitly found that the conditions of prior establishment set out in the Koo test were met.

B.                 Second aspect – the six criteria from the Koo test

[18]           Alternatively, the applicant submits that the citizenship judge apparently erred in analyzing the criteria established in Koo. Rather than draw conclusions regarding the six factors, and assessing and weighing the favourable and unfavourable findings, the citizenship judge apparently simply restated the justifications for the respondent’s absences. Moreover, the findings of the citizenship judge were apparently neither justified, transparent or intelligible, as the respondent does not meet certain criteria.

[19]           The respondent instead qualifies the Koo test as being guidelines, examples of questions to be used to determine whether the applicant has centralized his mode of existence in Canada. He has no ties in his country of origin, Côte d’Ivoire, in his last country of residence, Switzerland, or in the various unstable countries in which he was deployed by the HCR during missions, in which he lived in temporary shelters. The only country where he is established is Canada and there is no alternative index country (Collier v Canada (Minister of Citizenship and Immigration), 2005 FC 1511).

(1)               1^st test: Physical presence in Canada for an extended period before being absent

[20]           Contrary to what the citizenship judge found, the applicant feels that the respondent was not physically present in Canada for an extended period before being absent from Canada during the qualifying period. She allegedly incorrectly considered the 19-month period from December 2008 to July 2010, when the respondent was only with his family in Canada for 25 days before resuming foreign missions for the HCR.

[21]           The respondent submits that the citizenship judge simply did not express herself well, but that that is not a critical error that is subject to judicial review. She was aware that the respondent had continued with missions for the HCR. It would therefore be logical for the citizenship judge to instead refer to the fact that the respondent had been a permanent resident of Canada for 19 months prior to the qualifying period. The respondent noted that the decision-maker is not held to an abstract standard of perfection and that the decision must be reviewed in its entirety, without dwelling on a single problematic reason (R. v Sheppard, [2002] 1 SCR 869, 2002 SCC 26; Newfoundland Nurses, above, at para 12).

(2)               3^rd test: The person’s physical presence in Canada: return to his or her country or a visit?

[22]           The applicant claimed that the respondent was allegedly only visiting when he returned to Canada, as he spent more than 50% of his time abroad. The evidence showed that the respondent has gone on continual return trips since his family arrived in Canada and that he still works abroad at this time. His short stays in Canada do not support a conclusion that Canada is the country where he regularly, normally, or customarily lives.

[23]           The respondent instead submits that the citizenship judge drew the only reasonable conclusion that could be drawn from the facts. Following HCR missions, he returned home, to Canada, where his family, his home, and all his ties are established. The respondent’s absences were allegedly a temporary situation, while waiting for his spouse to find full-time work to meet the family’s needs and so he could stop his HCR missions and find work in Canada. The decision by the citizenship judge was therefore supported by the evidence. Physical presence less than 50% of the time is allegedly not enough to find that an applicant is only visiting Canada (Badjeck v Canada (Minister of Citizenship and Immigration), 2001 FCT 1301, at paras 42–43; Pourzand v Canada (Citizenship and Immigration), 2008 FC 395, at para 25).

(3)               4^th test: Scope of the physical absences

[24]           The applicant noted that the scope of the respondent’s physical absences is considerable; he was only in Canada 38% of the time during the qualifying period. The citizenship judge allegedly erred by replacing the requirements of the Act regarding physical ties with the family’s monetary needs (Canada (Citizenship and Immigration) v Olafimihan, 2013 FC 603, at paras 15, 28–29 [Olafimihan]).

[25]           The respondent noted that the citizenship judge considered his physical absences from Canada and that she did not commit any error in assessing them. The scope of the physical absences is allegedly not a solely quantitative test. All the respondent’s ties — emotional, financial — are in Canada and his absences were simply a necessity in order to meet his family’s needs.

(4)               5^th test: The temporary nature of the physical absence from Canada

[26]           The applicant argued that the respondent’s physical absences were not attributable to a clearly temporary situation. The applicant noted that the respondent has conducted HCR missions since 2006 to the present, and that no evidence of a job search was submitted by the respondent in support of his application for citizenship. The citizenship judge allegedly placed emphasis on the justification for the respondent’s absences rather than analyzing the test set out in Koo (Ntilivamunda, above, at paras 17–18). Under the circumstances it was unreasonable to find that the respondent’s absences were a temporary situation (Olafimihan, above, at para 27).

[27]           The respondent suggested that the fifth test from Koo deals with physical absence and what it is attributable to and, as such, the citizenship judge needed to examine that aspect. The respondent reiterated that his times on HCR missions were always temporary and limited to three months, and that he always intended to find a permanent job in Canada when his family’s financial resources permitted.

(5)               Analysis

[28]           The Court finds that the citizenship judge erred in finding that the respondent had been physically present in Canada for an extended period, i.e. 19 months, when of his own admission, he left his family after they moved to Canada, less than a month after their arrival. Nonetheless, that error alone is not fatal to the citizenship judge’s decision.

[29]           However, the Court finds that the citizenship judge erred regarding the respondent’s physical presence in Canada, the scope of his absences and their temporary nature. Due to his employment, the respondent was simply not present in Canada for a sufficient period to show that he regularly, normally, or customarily lives here, and that employment, which is laudable, and which even helps Canada in its efforts regarding refugees, cannot offset the considerable scope of his absences from Canada. Although the Court regrets that the respondent had difficulties finding work in Canada that corresponded to his talent, it adopts the words of Martineau J. in similar circumstances:

[17]      On the other hand, the respondent’s physical absences from Canada over the period in question were not entirely due to a purely temporary situation. To the contrary, according to the evidence in the record, it is clear that it is a permanent situation. While the respondent’s future intentions are not relevant in assessing the nature of the absences over the period in question (Khan v. Canada (Minister of Citizenship and Immigration), 2006 FC 47, [2006] F.C.J. No. 73 (QL); Paez v. Canada (Minister of Citizenship and Immigration), [2008] F.C.J. No. 292 (QL), 2008 FC 204), the respondent indeed indicated that he intended to retire from the WHO only in eight (8) years. At this rate, while he spent all of his leave in Canada (36 days per annum, according to the record), the respondent did not, even over eight years, accumulate the number of days required to genuinely centralize his existence in Canada.

[18]      It is deplorable that for one reason or another, the respondent cannot now work as a physician in the province of Quebec. Unfortunately, the respondent does not satisfy the residence requirement of the Act and his application for citizenship is clearly premature. In this case, the respondent is currently at an impasse similar to a number of permanent residents who want to obtain Canadian citizenship, but whose professional or other obligations abroad are an obstacle for establishing residence within the meaning of the Act.

(Ntilivamunda, above.)

VIII.         Conclusion

[30]           The Act is not arbitrary regarding the time a person must be present to become a Canadian Citizen. A line has been drawn and must be drawn to ensure that the time a person must be present in Canada to become a Canadian citizen does not become optional or speculative. Clearly a range of exceptions could demonstrate that the Act leads to situations that are incomprehensible, given that a lack of employment often places an individual between a rock and a hard place in terms of the essential timelines for establishment in Canada. This is reflected in the decisions of judges, who are also between a rock and a hard place, knowing that the interpretation of the Act leads to a result that is hard to deliver and thus hard to accept, but it is nonetheless the Act that does not offer any choice in those types of cases before the Court.

[31]           For these reasons, the application for judicial review is allowed.

JUDGMENT in T-206-17

THE COURT ORDERS that the application for judicial review be allowed, that the decision be set aside, and that the decision be referred back for reconsideration by another citizenship judge. There are no questions of general importance to certify.

“Michel M.J. Shore”

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:		T-206-17
STYLE OF CAUSE:		THE MINISTER OF CITIZENSHIP AND IMMIGRATION v MOTCHIAN AMAN
PLACE OF HEARING:	Montréal, Quebec
DATE OF HEARING:	July 25, 2017
JUDGMENT AND REASONS:	SHORE J.
DATED:	July 26, 2017

APPEARANCES:

Yaël Levy	For the Applicant
Rosalie Brunel	For the Respondent

SOLICITORS OF RECORD:

Attorney General of Canada Montréal, Quebec	For the Applicant
Brunel Immigration – Avocats Montréal, Quebec	For the Respondent