PRESENT: THE HONOURABLE MR. JUSTICE SHORE
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] Without the requisite set number of days, to be or not to be in possession of what it takes, [1] determines who is and who is not eligible to be a citizen!
JUDICIAL PROCEDURE
[2] This is an appeal pursuant to subsection 14(5) of the Citizenship Act[2] (Act) from the decision of a citizenship judge, dated July 22, 2004, whereby the judge refused the Applicant's application for Canadian citizenship on the ground that she had not met the residence requirement under paragraph 5(1)(c) of the Act.
BACKGROUND
[3] A citizen of Mexico, the Applicant, Ms. Maria Del Rosario Morales, first came to Canada as a visitor on August 27, 1996. She settled in Canada on July 27, 1998 as a permanent resident, sponsored by her Canadian husband John McKay. She applied for Canadian citizenship on July 27, 2002.
DECISION UNDER REVIEW
[4] The citizenship judge considered the factors codified in Koo (Re) (T.D.)[3] and noted the following facts, which led to his ultimate decision to reject the citizenship application. Ms. Morales'
two sons are resident in Mexico. Her husband, John McKay, is a Canadian citizen and resident in Canada. Ms. Morales provided numerous passive indicia of residence in Canada, including an employment application, a social insurance card, utility and health records, passport copies, and documents from her husband such as his tax returns, bank records, and property assessments. She also provided letters of reference from family friends. Ms. Morales described her social and philanthropic activities in the Vancouver area. During the 1460 period of consideration for residence, Ms. Morales was actually present in Canadafor 598 days, and was absent from Canada for 862 days. This made for a shortfall of 497 days from the requirements specified in the Act. Ms. Morales' absences were the result of her decision to spend her time at her husband's recreation dwelling in Mazatlan, Mexico. Since July 27, 1998, Ms. Morales has divided her time between Mexico and Canada, spending the majority of her time in Mexico.
ISSUE
[5] Did the citizenship judge err in determining that the Applicant did not satisfy the residency requirement provided in paragraph 5(1)(c) of the Act?
ANALYSIS
[6] The standard of review in citizenship appeals is the standard of reasonableness simpliciter because the question of whether a person has met the residency requirement under the Act is a question of mixed fact and law and citizenship judges are owed some deference by virtue of their special degree of knowledge and experience (Canada (Minister of Citizenship and Immigration) v. Fu[4], Canada (Minister of Citizenship and Immigration) v. Chen[5], Canada (Minister of Citizenship and Immigration) v. Chang[6]).
[7] All applicants for citizenship must satisfy the criteria set out in paragraph 5(1)(c) of the Act, which provides:
| 5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois : [...] c) est un résident permanent au sens du paragraphe 2(1) de la Loi sur l'immigration et la protection des réfugiés et a, dans les quatre ans qui ont précédé la date de sa demande, résidé au Canada pendant au moins trois ans en tout, la durée de sa résidence étant calculée de la manière suivante : (i) un demi-jour pour chaque jour de résidence au Canada avant son admission à titre de résident permanent, | 5. (1) The Minister shall grant citizenship to any person who ... (c) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, and has, within the four years immediately preceding the date of his or her application, accumulated at least three years of residence in Canada calculated in the following manner: (i) for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and |
| (ii) un jour pour chaque jour de résidence au Canada après son admission à titre de résident permanent; [...] | (ii) for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence; ... ... |
[8] Parliament has specifically provided that an applicant for citizenship may be absent from Canada for one year during the four-year period prior to the date of his or her application. Consequently, Parliament has specified that an applicant must be a resident in Canada for at least three years, or 1095 days. Although the term "residence" is not defined in subsection 2(1) of the Act, the allowance for an absence of one year creates a strong inference that an applicant's physical presence in Canada is required during the remaining three years.
[9] The test to determine whether a person is "resident" in Canada for the purposes of satisfying the requirements of the Act is set out by Justice Reed in Koo (Re) (T.D.), supra. That test requires the citizenship judge to determine "...whether Canada is the country in which he or she has centralized his or her mode of existence..."[7]. Justice Reed set out six non-exhaustive factors that can be indicative of whether this test has been met. The factors are for the citizenship judge to weigh. They include:
(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 temporary employment abroad?
(6) what is the quality of the connection with Canada: is it more substantial than that which exists with any other country?
[10] Ms. Morales argues that the citizenship judge erred by requiring her to be actually physically present in Canada in order to establish her residence here, and that he did not give due or any weight to the other factors in the Koo (Re) (T.D.) test.
[11] The Court finds that the citizenship judge applied the test in Koo (Re) (T.D.) correctly. His reasons are clear and the evidence supports his findings. He clearly did not require actual physical residence as Ms. Morales alleges, as it is clear from the decision that he allowed for the possibility that the residence requirement could be met without physical presence when he stated:
As you are probably aware, there is a certain imprecision or cloudiness regarding 'residence' as used in the Citizenship Act. This has engendered considerable legal debate and in practice, general acceptance of some variation from the prescription of 1095 days in the statute under certain conditions and within reasonable limits.
[12] The Court is satisfied that the citizenship judge appropriately considered all of the factors in Koo (Re) (T.D.) in rendering his decision, as follows.
i) Was the individual physically present in Canadafor a long period prior to recent absences which occurred immediately before the application for citizenship?
[13] The citizenship judge noted that Ms. Morales first came to Canada as a visitor on August 27, 1996, and was landed on July 27, 1998. The Tribunal Record reflects that, since her arrival, Ms. Morales has not spent an extended period of time in Canada prior to her pattern of absences, but rather that her travels to Mexico were ongoing immediately prior to and after her landing in Canada.
ii) Where are the applicant's immediate family and dependants (and extended family) resident?
[14] The citizenship judge noted that while Ms. Morales' husband is a resident Canadian, her two sons are resident in Mexico. While Ms. Morales argues that her family connection to Mexico is not strong because one of her sons anticipates moving to Europe, her other son visits her in Canada, and her brother is planning on moving to Canada, their intent is not relevant to the citizenship judge's inquiry. At the time of Ms. Morales' application, her sons and brother were resident in Mexico, and that fact substantiates a connection between Ms. Morales and that country.
iii) Does the pattern of physical presence in Canadaindicate a returning home or merely visiting the country?
[15] Despite recognizing Ms. Morales' life in Canada, the citizenship judge found that Mexico was her home country. He noted that the majority of Ms. Morales' time was spent in Mazatlan, Mexico at her husband's recreational dwelling and that she was leading a happy, regular, and settled life there. He found that Mexico was her place of birth, upbringing, and adult life.
iv) What is the extent of the physical absences?
[16] The citizenship judge found that Ms. Morales had only been physically present in Canada for 598 days of the 1460 day period. This is a significant shortfall and her absences are extensive. Ms. Morales is not merely a few days short of the requirements under the Act, and her absences have included numerous lengthy periods of time of over 130 consecutive days. The citizenship judge noted that Ms. Morales has spent approximately 59% of her time outside of Canada. Given the importance that the Court has placed on this factor (see for example Zhang v. Canada (Minister of Citizenship and Immigration[8]) and Canada (Minister of Citizenship and Immigration) v. Chiu[9]), these absences suggest that Ms. Morales has not centralized her life in Canada.
v) 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 temporary employment abroad?
[17] The citizenship judge found that Ms. Morales' absences from Canada appear to be structural, as a part of her pattern of life, rather than a temporary phenomenon. Ms. Morales argues
that her absences are temporary because they are vacations. However, these absences are not a series of short, disparate vacations. They are consistent, annually repeated, extended absences from
Canada to her home country which render them part of a structural pattern of life rather than a temporary phenomenon with a discernable concluding date, such as temporary employment abroad.
vi) What is the quality of the connection with Canada: is it more substantial than that which exists with any other country?
[18] The citizenship judge found that, at best, Ms. Morales, life was split between Canada and Mexico and that she had not centralized her life in Canada, but divided it. Since her landing in July 1998, Ms. Morales has spent the majority of her time in Mexico. Her degree of connection is equal or more substantial with Mexico than with Canada.
[19] The Court finds that the citizenship judge's decision was reasonable and will not interfere with it.[10] In the present case, the citizenship judge considered Ms. Morales' ties to Canada, notwithstanding her lack of actual physical presence in the country, and found that she had not sufficiently centralized her life here based on the totality of the evidence. He properly applied the test in Koo (Re), supra, and his decision should stand.
CONCLUSION
[20] For these reasons, the Court answers the question at issue in the negative. Consequently, the application for judicial review is dismissed.
ORDER
THIS COURT ORDERS that
1. The application for judicial review be dismissed.
2. No question is to be certified.
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1438-04
STYLE OF CAUSE: MARIA DEL ROSARIO MORALES
v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Vancouver, B.C.
AND ORDER BY: The Honourable Mr. Justice Shore
APPEARANCES:
Ms. Thora Sigurdson FOR THE APPLICANT
Mr. Jonathan Shapiro FOR THE RESPONDENT
SOLICITORS OF RECORD:
FASKEN MARTINEAU DuMOULIN FOR THE APPLICANT
Vancouver, British Columbia
JOHN H. SIMS Q.C. FOR THE RESPONDENT
Deputy Minister of Justice and
Deputy Attorney General
[1] Possession of a centralized mode of existence or life.
[2] R.S.C. 1985, c. C-29.
[3] [1992] F.C.J. No. 1107 (QL).
[4] [2004] F.C.J. No. 88 (F.C.) (QL).
[5] [2004] F.C.J. No. 1040 (F.C.) (QL).
[6] [2003] F.C.J. No. 1871 (F.C.) (QL).
[7] Koo (Re) (T.D.), supra at para. 10.
[8] [2000] F.C.J. No. 1943 (QL).
[9] [1999] F.C.J. No. 896 (T.D.) (QL).
[10] With respect to the reasonableness of a decision, reference is made to the Law Society of New Brunswick v. Ryan, [2003] S.C.C. 20 at paragraph 55.