Vancouver, British Columbia, June 21, 2006
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
and
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an appeal by the Minister of Citizenship and Immigration under subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 (the Act), from the decision of a citizenship judge dated November 10, 2005, approving the respondent's application for citizenship.
FACTS
[2] The respondent, Dr. Singh, is a retired surgeon from Amritsar, India. Sponsored by his Canadian son, the respondent obtained permanent resident status in Canada on January 16, 1999, and applied for Canadian citizenship on August 27, 2003.
[3] After landing, the respondent joined a Canadian registered charity, the Canada-India Guru Nanak Medical and Educational Society, in which capacity he volunteered for lengthy periods as an advisor and consultant at the Dhalan-Kaleran Hospital in the Punjab region of India.
[4] In the relevant 1460-day period prior to his citizenship application, from August 27, 1999, to August 27, 2003, the respondent was physically present in Canada for 434 days and absent for 1026 days. As a result, Dr. Singh fell 661 days short of the 1095 day minimum residency requirement set out in paragraph 5(1)(c) of the Act.
DECISION OF THE CITIZENSHIP JUDGE
[5] The citizenship judge approved the respondent's application for citizenship, finding that the residency requirement was met. In the judge's letter of decision dated November 10, 2005, the judge noted that:
[...] Dr. Singh's absences from Canada are mainly related to his volunteer work with a Canadian charity. He spent 829 days with this Canadian charity from a total of 1026 days of absences from Canada.
Further, Dr. Singh seems to have centralized his life in Canada. His wife, who is a Canadian citizen now, and son stayed in Canada all the time while Dr. Singh was on volunteer mission abroad. He transmits all his pension money from India to his Canadian accounts. ... He has also filed income taxes for every single year since his arrival in Canada. Lately, he went back to India to sell his house and transmitted $75,000 to his account in Canada.
He has submitted documents in support of all his claims. In my opinion, he has not only demonstrated great Canadian value of volunteer/charitable work ethic, but also centralized his life in Canada in a way that his family and most material assets are in Canada. Therefore, I am approving the application for Canadian citizenship.
RELEVANT LEGISLATION
[6] The legislation relevant to this appeal is the Citizenship Act, R.S.C. 1985, c. C-29, the relevant excerpts of which are set out in Appendix "A" following these reasons.
ISSUES
[7] The sole issue raised in this appeal is whether the citizenship judge's decision finding that the respondent has "centralized his mode of living" in Canada was unreasonable simpliciter.
STANDARD OF REVIEW
[8] It is settled law that a decision of a citizenship judge under subsection 14(5) of the Act is a question of mixed fact and law to be reviewed by this appellate court on the unreasonableness simpliciter standard. See Chen v. Canada (Minister of Citizenship and Immigration) (2006), 145 A.C.W.S. (3d) 770 (F.C.) at paragraph 6 per Mr. Justice Michael Phelan; and Canada(Minister of Citizenship and Immigration) v. Fu (2004), 128 A.C.W.S. (3d) 1074 (F.C.) at paragraph 7 per Madam Justice Danièle Tremblay-Lamer.
ANALYSIS
[9] Under paragraph 5(1)(c) of the Act, the respondent must satisfy three criteria to be granted citizenship in Canada:
1. lawful admission to Canada as a permanent resident;
2. retention of permanent resident status; and
3. an aggregate period of at least three years of residence in Canada within the four years immediately preceding the date of application for citizenship.
It is common ground that the respondent in this case met the first two criteria. At issue is whether the respondent satisfied the three-year residence requirement calculated in accordance with subparagraphs 5(1)(c)(i) and (ii).
[10] The appellant submits that the citizenship judge's decision to approve the respondent's citizenship application cannot withstand a somewhat probing examination because the judge failed to properly identify and apply a legal test for the respondent's residence.
[11] It is open to a citizenship judge to select and apply a residency test from among those endorsed by this Court (see Lam v. Canada(Minister of Citizenship and Immigration) (1999), 164 F.T.R. 177 (T.D.) at paragraph 14). In this case, the citizenship judge has impliedly adopted the "centralized mode of existence" test articulated by Madam Justice Reed in Re Koo, [1993] 1 F.C. 286 (F.C.T.D.) which set out, at paragraph 10, six questions that can be asked which assist in determining whether the applicant "regularly, normally or customarily lives" in Canada:
[...]
(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.
[12] In this case, the citizenship judge's decision leaves this Court in doubt as to whether the residency factors set out in Re Koo were addressed. Whereas the judge stated:
(1) that the respondent's wife and son remained resident in Canada during his volunteer work in India; and
(2) transmitted substantial assets from India to Canada, used Canadian banking services and filed Canadian income tax returns since landing,
the judge failed to address the remaining factors. As stated by Mr. Justice Douglas Campbell in Seiffert v. Canada(Minister of Citizenship and Immigration), 2005 FC 1072, at paragraph 9, the citizenship judge must leave no doubt that all relevant residency factors were addressed in arriving at the decision:
¶ 9 [...] there is no hard and fast rule that important factors have to be addressed in the manner and order which Justice Reed suggests, but, nevertheless, the decision must leave no doubt that all important relevant factors were addressed in reaching the decision.
[13] Notably, it is not clear whether the citizenship judge:
(i) assessed whether the respondent was physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship;
(ii) characterised the pattern of physical presence in Canada as returning home from India or merely visiting family between volunteer periods;
(iii) accepted the respondent's voluntary mission to Indiaas temporary situation rather than one to continue with some permanence; and
(iv) found the respondent's connection with Canada to be more substantial than his connection with India.
[14] The respondent would have the Court find reasons in the citizenship judge's letter of decision where they are lacking. While the respondent cites authority to ground a finding of substantial connection with Canada under paragraph 16(a) of the Citizenship Regulations, 1993, SOR/93-246, there is nothing in the record upon which this Court can find the judge turned his mind to such authority. On even a searching reading of the judge's letter of decision, I cannot conclude that the relevant Koo factors were addressed.
[15] The citizenship judge was obliged, but failed, to consider whether the respondent first established a centralized mode of living in Canada before his first absence after landing and maintained that centralized mode of living during his absences. These omissions are a failure to consider a necessary step in the residency analysis. See Wu v. Canada (Minister of Citizenship and Immigration) (2003), 122 A.C.W.S. (3d) 989 (F.C.T.D.) per Mr. Justice François Lemieux at paragraphs 13-14. I find that the decision under appeal is not reasonable in the sense that it cannot withstand a somewhat probing examination, warranting the Court's intervention.
[16] The residency requirement is an important pre-condition for citizenship under the Citizenship Act. The residency requirement under the Immigration and Refugee Protection Act and the Immigration and Refugee Protection Regulations is not the same as the residency requirement under the Citizenship Act. In the facts before the Court, it is obvious that the respondent has not been physically present in Canada for a long enough period prior to his absences so as to satisfy the first criteria set out by Madam Justice Reed in Re Koo (see above). It is also obvious to the Court that the respondent does not satisfy most of the other criteria in Re Koo.
CONCLUSION
[17] The citizenship judge's decision that the respondent centralized his life in Canada was unreasonable because he failed to assess factors relevant to whether the respondent regularly, normally or customarily lives in Canada. While the respondent's volunteer practices are laudable objectives, they do not relieve the respondent of the residency requirement for citizenship. For these reasons, the appeal must be allowed.
JUDGMENT
THE COURT ORDERS that the appeal is allowed and the matter remitted for decision to a different citizenship judge.
Appendix "A"
RELEVANT LEGISLATION
1. Citizenship Act, R.S.C. 1985, c. C-29
| Grant of citizenship
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) 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; [...]
Appeal
14. [...]
(5) The Minister or the applicant may appeal to the Court from the decision of the citizenship judge under subsection (2) by filing a notice of appeal in the Registry of the Court within sixty days after the day on which
(a) the citizenship judge approved the application under subsection (2); or
(b) notice was mailed or otherwise given under subsection (3) with respect to the application.
|
Attribution de la citoyenneté
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,
(ii) un jour pour chaque jour de résidence au Canada après son admission à titre de résident permanent;
[...]
Appel
14. (5) Le ministre et le demandeur peuvent interjeter appel de la décision du juge de la citoyenneté en déposant un avis d'appel au greffe de la Cour dans les soixante jours suivant la date, selon le cas:
a) de l'approbation de la demande;
b) de la communication, par courrier ou tout autre moyen, de la décision de rejet.
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FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2275-05
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION v. GURMAIL SINGH
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: June 21, 2006
REASONS FOR JUDGMENT: KELEN J.
APPEARANCES:
| Mr. Jonathan Shapiro |
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| Mr. Gurmail Singh
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(self-represented) |
SOLICITORS OF RECORD:
| Mr. John H. Sims, Q.C. Department of Justice
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| n/a
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