Date: 20021011
Docket: T-1280-01
Neutral citation: 2002 FCT 1067
BETWEEN:
ABDI MOMIN AHMED,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
[1] The appellant, a medical doctor, was born in Borama, Somalia and came to Canada as a permanent resident on July 24, 1994. Upon his arrival, Dr. Ahmed was reunited with his wife and two children who had been living in Canada for four years. A third child was born later in Canada. The appellant's wife and three children are Canadian citizens; the appellant is not.
[2] Dr. Ahmed filed an application for citizenship on December 3, 1999. He was interviewed by the citizenship judge on April 30, 2001 and by correspondence dated May 15, 2001 the citizenship judge refused the application on the basis that the appellant had not met the residence requirements under paragraph 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29 (the Act). Paragraph 5(1)(c) requires that a person applying for citizenship accumulate, within the four years immediately preceding the date of the application, at least three years of residence in Canada. In short, a person requires 1095 days of residence in the four year period preceding the application.
[3] The appellant submits two grounds of appeal. The first is that the citizenship judge's reasons and analysis are insufficient and inadequate. The second ground is that the judge failed to consider all of the appellant's surrounding circumstances when dealing with his application. The respondent, on the other hand, refers to the divergence of approaches taken by the Federal Court to the residency requirement of paragraph 5(1)(c) of the Act. Here, says the respondent, the citizenship judge chose the approach set out in Re Koo, [1993] 1 F.C. 286 (T.D.), applied the factors set out therein and determined that the appellant simply had not satisfied the residence requirements. The reasons and analysis are not deficient, argues the respondent, they are complete.
[4] Because the "issue" regarding the divergence of opinion in Federal Court jurisprudence with respect to the residency requirement of the Act inevitably surfaces during argument on citizenship appeals, I believe that it is beneficial to distinguish between the instances when that issue has relevance and when it does not. In my view, the "issue" regarding the divergence of opinion in Federal Court jurisprudence is not relevant to the issue of whether an appellant has established a residence in Canada. In Goudimenko v. Canada (Minister of Citizenship and Immigration) 2002 FCT 447, [2002] F.C.J. No. 581, the appellant argued that his absences for school ought to have been deemed residence. At paragraph 13, I stated:
The difficulty with the appellant's reasoning is that it fails to address the threshold issue, his establishment of residence in Canada. Unless the threshold test is met, absences from Canada are irrelevant; Canada (Secretary of State) v. Yu (1995), 31 Imm.L.R. (2d) 248 (F.C.T.D.); Re Papadorgiorgakis, supra; Re Koo, supra; Re Choi, [1997] F.C.J. No. 740 (T.D.). In other words, a two stage inquiry exists with respect to the residence requirements of paragraph 5(1)(c) of the Act. At the first stage, the threshold determination is made as to whether or not, and when, residence in Canada has been established. If residence has not been established, the matter ends there. If the threshold has been met, the second stage of the inquiry requires a determination of whether or not the particular applicant's residency satisfied the required total days of residence. It is with respect to the second stage of the inquiry, and particularly with regard to whether absences can be deemed residence, that the divergence of opinion in the Federal Court exists.
[5] Pelletier J., as he then was, while not using the word "threshold", reached the same conclusion in Chan v. Canada (Minister of Citizenship and Immigration) 2002 FCT 270, [2002] F.C.J. No. 376 when he stated at paragraphs 14-16:
It is not obvious from the material before the tribunal when the applicant would have established residence in Canada . . . in the absence of having established a residence, these periods of presence in Canada could not maintain a residence which had not been established.
. . . [The citizenship judge] addressed his mind to the establishment of a residence and concluded that he could not find that the applicant had established a residence in Canada . . .
Counsel's representations as to the effect of the decision of Lutfy A.C.J. in Lam, supra, do not assist the applicant because the issue in this case is whether residence has been established, not whether it has been maintained. There is no disagreement on the question of whether residence must be established before it can be maintained, so there is no opportunity to follow one line of cases or the other. There is only one line of cases.
[6] 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); 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.
[7] I do not regard the reasoning in Re Koo, supra, as a deviation from that basic premise. In my view, Re Koo stands for the proposition that absences may be deemed residence if an individual has centralized his or her existence here. The phrase "centralized his existence", of necessity, requires that an individual has established his or her residence in Canada. If so, the phrase may also be relevant with respect to whether the individual has maintained his or her existence in Canada. The factors enunciated in Re Koo were offered as guidelines to assist in the determination of whether absences during the relevant time period can be deemed residence. They do not constitute a test that requires an exhaustive analysis of each and every segment of each and every factor.
[8] In this particular matter, the appellant's argument regarding the citizenship judge's failure to consider his surrounding circumstances is misguided. While the appellant has the usual passive indicia of residence in Canada, his evidence is scant with respect to whether or not he had ever established himself in Canada. Counsel placed great weight on the fact that the appellant's wife and children live in Canada. That is, in all likelihood, one of the reasons why the appellant's wife and his two non-Canadian born children have been granted Canadian citizenship.
[9] I was urged to consider the fact that the appellant lived in Canada for fifteen months before leaving for his employment in Afghanistan. The appellant referred to several cases where an individual was found to have established residence in Canada after residing here considerably less than fifteen months. The appellant's perception of the end result in those cases is correct but he fails to appreciate the nature and significance of the evidence that was provided in support of the end result. A review of the cases reveals that significant evidence was tendered to indicate that the individuals had established their residence in Canada prior to departing. Here, the only evidence proffered by the appellant regarding the fifteen month time frame was that he arrived in Canada on July 24, 1994 and worked for a short time with the Canadian African Women's Organization in September 1994. He was not able to obtain employment in his area of expertise and on January 2, 1995 he left Canada for a job interview with the United Nations in New York. He was successful and received an offer as a field officer with the World Health Organization assigned to Afghanistan commencing October 18, 1995. There was nothing further. Given the paucity of evidence before the citizenship judge with respect to the fifteen month period between the appellant's arrival in and departure from Canada, I cannot conclude that she erred in failing to find that the appellant had established his residence in Canada at that time.
[10] All other evidence, before the citizenship judge, related to circumstances that existed after the appellant left Canada. Despite the passive indicia, the appellant was only present in Canada for a total of 235 days in the four years preceding his application for citizenship. In these circumstances, the citizenship judge concluded as follows:
You have not established and maintained your presence in Canada nor have you centralized your mode of existence in Canada.
[11] I cannot find that the citizenship judge erred in so concluding. The appellant did not meet the threshold, therefore the matter ends there.
[12] I turn now to the appellant's argument that the citizenship judge's reasons and analysis are insufficient and inadequate. The requirement to provide reasons, in the specific context of citizenship applications, was described by Lutfy J., as he then was, in Lam v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 177 as an obligation to give "clear reasons which demonstrate an understanding of the case law". In Lai v. Canada (Minister of Citizenship and Immigration) (2000), 188 F.T.R. 113, Pelletier J., as he then was, adopted the reasoning of the New Brunswick Court of Appeal in Boyle v. New Brunswick (Workplace Health, Safety and Compensation Commission) (1996), 179 N.B.R. (2d) 43 wherein it was held that merely listing the evidence considered was not sufficient. Reasons must explain to the parties why the tribunal decided as it did and must also be sufficient to enable the appeal court to discharge its appellate function.
[13] In R. v. Sheppard (2002), 284 N.R. 342, 210 D.L.R. (4th) 608, the Supreme Court of Canada discussed the adequacy of reasons. Although decided in the context of criminal law, the principles enunciated in Sheppard can be modified, as required, to fit the context of any number of matters. The Supreme Court held that the requirement of reasons is tied to their purpose and the purpose varies with the context. For purposes of citizenship appeals, I consider the following propositions from Sheppard, modified as required for the context, to be applicable:
(a) The delivery of reasoned decisions is inherent in the judge's role.
(b) An unsuccessful applicant should not be left in doubt as to why he or she was not successful.
(c) Lawyers for parties may require reasons to assist them in considering and advising with respect to a potential appeal.
(d) Not every failure or deficiency in the reasons provides a ground of appeal.
(e) Reasons provide an important function in the appellate process. Where the functional needs are not satisfied, the appellate court may conclude there is an error of law depending on the circumstances of the case and the nature and importance of the decision being rendered.
(f) The judge is not held to some abstract standard of perfection.
(g) The judge's duty is satisfied by reasons which are sufficient to serve the purpose for which the duty is imposed, i.e., a decision which, having regard to the particular circumstances of the case, is reasonably intelligible to the parties and provides the basis for meaningful appellate review of the correctness of the judge's decision.
(h) While it is presumed that judges know the law with which they work day in and day out and deal competently with the issues of fact, the presumption is of limited relevance. Even learned judges can err in particular cases, and it is the correctness of the decision in a particular case that the parties are entitled to have reviewed by the appellate court.
(i) Where the decision is deficient in explaining the result to the parties, but the appeal court considers itself able to do so, the appeal court's explanation, in its own reasons, is sufficient. There is no need in that case for a new hearing.
[14] Here, in the correspondence dated May 15, 2001, the citizenship judge summarized the evidence, identified the issue, identified the factors from Re Koo, supra, and applied the factors to the evidence. She was unable to conclude that the appellant had established residence in Canada. As a consequence, not having satisfied the threshold, regardless of the "residency" test applied, the appellant could not succeed. The analysis portion of the decision explains the reasons for the result. The citizenship judge then proceeded to consider whether a favourable recommendation should be made under subsections 5(3) and (4) of the Act. Finally, the appellant was informed of his right to appeal and of the limitation period applicable to an appeal. The noted components of the correspondence are sufficient to serve their purpose. They provide an explanation to the appellant as to why the citizenship judge decided the way that she did and they provide a basis for meaningful appellate review of the correctness of the decision.
[15] The appellant has not demonstrated that the citizenship judge erred. The appeal is therefore dismissed.
__________________________________
Judge
Ottawa, Ontario
October 11, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-1280-01
STYLE OF CAUSE: ABDI MOMIN AHMED v. MCI
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: October 1, 2002
REASONS FOR ORDER BY THE HONOURABLE MADAME JUSTICE LAYDEN-STEVENSON
DATED: October 11, 2002
APPEARANCES:
Ms. Karla UngerFOR APPLICANT
Ms. Lynn MarchildonFOR RESPONDENT
SOLICITORS OF RECORD:
Ms. Karla UngerFOR APPLICANT
Bell, Unger, Morris
Ottawa, Ontario
Mr. Morris RosenbergFOR RESPONDENT
Department of Justice
Ottawa, Ontario