Date: 20041101
Docket: T-2485-03
Citation: 2004 FC1385
BETWEEN:
FREDERICK ANTONIO FARIA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PHELAN J.
Overview
[1] Mr. Faria applied for citizenship although he had only been in Canada a total of 504 days over the period of 3 years (1095 days). Mr. Faria, while owning homes in Canada and having settled his family here, maintained his principal business in Dubai. The Citizenship Judge held that he had not centralized his mode of existence in Canada. Mr. Faria sought judicial review of this determination by the Citizenship Judge.
Background
[2] Mr. Faria, and his wife and children came to Canada in March, 1996 and became a permanent residents in August, 1996.
[3] Approximately 4 or 5 days after arriving in Canada Mr. Faria and his family went to New York for more than a week. They returned to Canada but left shortly thereafter for Dubai where the children registered for school.
[4] Mr. Faria also started a business while in Dubai. It is this business which has kept Mr. Faria away from Canada for such a significant period, living and doing business there and elsewhere in the world.
[5] After the children finished school in Dubai, the family returned to Canada where eventually two of the children attend Canadian universities and one is studying in Dubai.
[6] Mr. Faria owns a home in Thornhill and owns three condominiums in Toronto. His family is resident here and they are Canadian citizens.
[7] Mr. Faria has expressed his intention to move his business from Dubai to Canada, however this has not been accomplished; even though Mr. Faria says that his intention to become a Canadian citizen commenced in 1996.
[8] The Citizenship Judge noted that Mr. Faria was 531 days short of the number of days of residence required by paragraph 5(1)(c) of the Citizenship Act which reads:
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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; . . . . |
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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 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; . . . .
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[9] In considering whether Mr. Faria had centralized his mode of existence she considered the questions raised in Re Koo [1992] F.C.J. No. 1107 (T.D.), as follows:
1. Was the individual physically present in Canada for a long period prior to recent absences that occurred immdiately before the application for citizenshipp?
2. Where are the applicant's immediate family and dependants (and extended family) resident?
3. Does the pattern of physical presence in Canada indicate a returning home visiting the country?
4. What is the extent of the physical absences - if an applicant is only a few days short of the 1,095 days total it is easier to find deemed residence than if those absences are extensive?
5. Is the physical absence cause 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?
Analysis
[10] The standard of review of a citizenship judge's decision is generally held to be correctness Re Agha [1999] F.CJ. No. 577 (T.D.). Further, this Court has a statutorily mandated standard of review not necessarily dictated by the case law but set by Parliament.
[11] Whatever the standard of review, an applicant for citizenship must, for purposes of residency, establish by objective facts, firstly that he established a residence in Canada at least three years preceding his application, and secondly that he has maintained the established residence throughout the relevant time period. Re Wong [1996] F.C.J. No. 591 (T.D.).
[12] The burden rests on the particular applicant and he cannot "bootstrap" his way into residency by reference to the conduct of other members of his family. Each individual is considered on his own merits and on his own conduct.
[13] With respect to the test for residency, cases under other statutes enacted for different purposes, such as the Income Tax Act, are not determinative of whether residency has been established for purposes of the Citizenship Act.
[14] The Applicant argues that the "intention test" for residency is applicable in this case. The Applicant further argues that the case law has not developed several tests for residency - place of living, reason for being in Canada, intention, three part, indicia of residence, quality of attachment - which then allows a citizenship judge to pick and choose which one of the tests to apply in any given case. He says that if the law were as described, the process would be arbitrary, uncertain, inconsistant and unfair.
[15] If the law were as described, I would agree with the submission that the process would have all of those frailties and more. However, as I understand the law, what are sometimes called "tests" are really factors to be considered or weighed in the overall assessment of whether an applicant has proven residence over the applicable three year period.
[16] The Applicant argues that the Citizenship Judge erred in rigidly following the questions in Koo while ignoring Mr. Faria's intent to be resident in Canada. The Applicant further argues that the rigid application of Koo creates a residency problem for international business people who must, of necessity, travel extensively for business.
[17] With respect, I do not see that the Citizenship Judge slavishly applied Koo or considered the Koo questions to be exhaustive. That Canada's citizenship laws may make proving residence for international business people more difficult, or present such people with difficult decisions as to their mode of living and working, is a matter for Parliament.
[18] The current state of the law requires that an applicant firstly establish residence and then maintain that residence. While there is apparently no doubt that Mr. Faria's family established residence, there is evidence that he himself did not.
[19] Having moved to Canada from the United Arab Emirates in March, 1996, Mr. Faria then left Canada a few days later for the United States, then went to Dubai where he established his business. That pattern of conduct is somewhat inconsistent with the establishment of residence in Canada.
[20] Further, Mr. Faria had been absent from Canada (this calculation is largely influenced by whether one includes absences authorized by Returning Resident Permits) from 896 days (as calculated by the Respondent), to 689 days as calculated by the Applicant, to 531 days as found by the Citizenship Judge. These absences were caused by demands of the business which he set up in Dubai at the same time as he claims he was establishing residency in Canada.
[21] Despite his expressed intentions to move his business to Canada, it has not been accomplished, despite having the period from 1996 to 2003/2004 in which to complete the transfer.
[22] While he returns to Canada for major holidays, and his family is resident here, that is insufficient to establish his own residence. (Zhou v. Minister of Citizenship and Immigration, [2004] F.C.J. 1367).
[23] Having reviewed all of the circumstances, I do not see where the Citizenship Judge erred. She demonstrated an understanding of the law and properly determined all the facts.
[24] Therefore this application for judicial review will be dismissed.
"Michael L. Phelan"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2485-03
STYLE OF CAUSE: FREDERICK ANTONIO FARIA v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: September 14, 2004
REASONS FOR ORDER: Phelan J.
DATED: November 1, 2004
APPEARANCES:
Ms. Charlotte M.Janssen FOR THE APPLICANT
Mr. Negar Hashemi FOR THE RESPONDENT
SOLICITORS OF RECORD:
Janssen & Associates
Toronto, Ontario FOR THE APPLICANT
Mr. Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT