Federal Court Decisions

Date: 20020429

Docket: T-359-01

Neutral citation: 2002 FCT 488

Ottawa, Ontario, this 29th day of April, 2002

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                                                 MANDAL, Animesh

                                                                                                                                                       Applicant

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                 This is an appeal of the decision of the Citizenship Judge dated January 15, 2001, wherein the applicant's application for Canadian citizenship under paragraph 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29 was not approved.

[2]                 The applicant seeks:

1.          an order for a writ of certiorari quashing the decision of the Citizenship Judge;

2.          an order declaring that the applicant meets the requirement of subsection 5(1) of the Citizenship Act, supra;

3.          an order for a writ of mandamus directing that the Citizenship Office grant citizenship to the applicant;

4.          an order allowing the appeal.

Background

[3]                 The applicant, Animesh Mandal, is an Indian citizen, and was landed in Canada on August 11, 1995. The applicant's wife and two children were also landed on the same date and have since received Canadian citizenship. The applicant submitted his application for citizenship on February 13, 1999.

[4]                 Supporting his application for citizenship, while in Canada the applicant has obtained a social insurance number, an Ontario Health Card, and an Ontario driver's license. The applicant has filed personal income tax returns for 1995 through 1999 as a resident of Ontario. The applicant has filed corporate tax returns for the years 1997, 1998 and 1999. The applicant has purchased a house where his family resides in Scarborough, Ontario. The applicant has maintained bank accounts with the Royal Bank and has a mortgage with the TD Bank.

[5]                 The applicant did not provide evidence that he has been substantially involved in the community or that he has performed any volunteer work while in Canada.

[6]                 The applicant is not a Kuwaiti citizen but had temporary resident status while living in Kuwait prior to coming to Canada. Since landing in Canada, the applicant has travelled to Kuwait at least six times on business.

[7]                 The applicant's history of presence in (and absence from) Canada is as follows:

[8]                 In the letter containing the decision, the Citizenship Judge stated in part:

I found that you did not meet the requirement of residence. Under Subsection 5(1)(c) of the Citizenship Act, an applicant is required to have accumulated at least three years (1,095 days) of residence in Canada within the four years immediately preceding his or her application.

According to the evidence on your file and presented to me at the hearing, your absences from Canada total 716 days in the four years preceding your application for Citizenship (13 February 1999). During this period, you were physically present in Canada for 565 days and short for 530 days.

After having carefully considered the material and submissions in support of making a favourable recommendation for the use of discretion in your case, I have decided that your case does not warrant making a favourable recommendation for the following reasons:

You have not established and maintained your presence in Canada.

You have not centralized your mode of existence in Canada.

In short, all the facts of your case indicate that you have a closer connection to Kuwait than to Canada.

[9]                 This is the judicial review of the decision of the Citizenship Judge.

Applicant's Submission

[10]            The applicant submits that correctness is the appropriate standard of review for the review of a decision made by a Citizenship Judge.

[11]            The applicant submits that the Court found in Re Papadogiorgakis [1978] 2 F.C. 208 at 214, that temporary absences from Canada will not preclude an applicant from being a Canadian resident. The applicant submits that an applicant will be a Canadian resident as if it is shown that

the applicant "in mind and fact settles into, or maintains, or centralizes his ordinary mode of living with its accessories in social relations, interest and conveniences" in Canada.

[12]            The applicant submits that physical presence is only one of the many factors that need to be considered when making a decision under paragraph 5(1)(c) of the Act.

[13]            The applicant submits that this Court in Re Koo [1993] 1 F.C. 286 held that there are six questions that should be used by the Court as guidance in reaching a conclusion on residency.

[14]            The applicant submits that the Citizenship Judge should have taken into account that the applicant's absences were due to business activities. The applicant submits that strong weight should be given to the fact that the applicant's only reason for absence is his business travel. The applicant submits that when he is in Kuwait, he does not rent property but rather stays at the residence of a friend.

[15]            The applicant submits that there are ample indicia that the applicant resides in Canada, and submits that the Citizenship Judge erred in finding that the applicant had a closer connection to Kuwait than to Canada.

Respondent's Submissions

[16]            The respondent submits that the meaning of "residence" for the purposes of section 5 has been examined by the Court in many cases such as Re Koo [1993] 1 F.C. 286 at 293-94. In Re Koo, supra, Reed J. determined that the test was where the person "regularly, normally or customarily lives" or has centralized their mode of existence. The respondent submits that the relevant criteria includes the length of the person's stays in Canada, the residence of the person's immediate and extended family, the extent and the reasons for the physical absences, the quality of the connection with Canada in comparison with any other country and whether the time spent in Canada indicates a returning home as opposed to a mere visit.

[17]            The respondent submits that the Citizenship Judge applied the correct criteria.

[18]            The respondent submits that with the exception of the period between July 2, 1996 and July 14, 1997, the applicant did not reside in Canada. Apart from that period, the respondent submits that the applicant was never physically present in Canada for more than 35 days. By contrast, the respondent submits that the applicant's absences from Canada averaged 102 days in length.

[19]            The respondent submits that the Citizenship Judge noted the applicant was in Canada for only four weeks following his being landed before leaving for Kuwait.

[20]            The respondent acknowledges that the applicant's immediate family resides in Canada.

[21]            The respondent submits that the applicant's pattern of physical presence indicates visiting rather than residing in Canada.

[22]            The respondent submits that the applicant's explanation of physical absence from Canada, in every case, is business. The respondent submits that the Citizenship Judge correctly found that this pattern was likely to continue indefinitely.

[23]            The respondent submits that the applicant has not demonstrated that the Citizenship Judge was in error in finding that the applicant had very little connection to Canada, was not involved in the community, and performed no volunteer work.

[24]            Issue

Did the Citizenship Judge err in deciding that the applicant did not satisfy the residency requirement under paragraph 5(1)(c) of the Citizenship Act?

Relevant Statutory Provisions and Regulations

[25]            The relevant sections of the Citizenship Act, supra state as follows:

Analysis and Decision

[26]            Issue

Did the Citizenship Judge err in deciding that the applicant did not satisfy the residency requirement under paragraph 5(1)(c) of the Citizenship Act?

The applicant was present in Canada for 565 days and absent for 717 days between August 11, 1995 and February 13, 1999.

[27]            Paragraph 5(1)(c) of the Act contains the requirement that the applicant be physically present in Canada for three years (or 1,095 days) during the four years prior to applying for citizenship. The applicant was physically present in Canada for 565 days (530 days short of 1,095) and absent for 717 days since August 11, 1995. This amounts to one and a half years that the applicant was present in Canada during the previous four years. This is approximately half the time required by the Act.

[28]            The decisions of this Court have held that in certain situations, periods of time spent away (absences) can be counted as time to accumulate the required 1,095 days of residence that are required by paragraph 5(1)(c) of the Act.

[29]            The absences from Canada have only been counted towards the required residence time of 1,095 days if the applicant has centralized his or her mode of living in Canada prior to the absences.

[30]            This view was expressed by Dubé J. of this Court in Canada (Minister of Citizienshp) v. Lo [1999] F.C.J. No. 130 (QL) at paragraphs 3 to 6:

Physical presence in Canada throughout the period is less essential where a person has in mind and fact settled into or maintained or centralized his or her own ordinary mode of living in this country. That was the case of the student in the Papadogorgakis case (supra), who had established a mode of living in Nova Scotia before going to study in the United States.

Unfortunately such is not the case of the respondent here who, obviously, cannot have established a mode of living in Canada in only 7 days.

Consequently her application was premature. Now that she has completed her studies and has settled in Vancouver, she may in due course make a fresh application for Canadian citizenship and undoubtedly will be successful.

Thus the appeal of the Minister is allowed.

[31]            I am of the view that the applicant did not establish a centralized mode of living in Canada in the 31 days he spent in Canada before his first absence of 159 days. Thus, I am not prepared to count his periods of absences from Canada towards his residence requirements. Accordingly, I am of the opinion that the Citizenship Judge was correct in her determination.

[32]            I would reach the same conclusion by applying the test outlined in Re Koo, supra. The test in Re Koo, supra stated as follows at pages 293 to 294:

The conclusion I draw from the jurisprudence is that the test is whether it can be said that Canada is the place where the applicant "regularly, normally or customarily lives". Another formulation of the same test is whether Canada is the country in which he or she has centralized his or her mode of existence. Questions that can be asked which assist in such a determination are:

(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 1,095-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?

In my view, the applicant fails in regard to questions (1), (3), (4), (5) and (6).

[33]            Under question (1), the applicant has only had one stay in Canada longer than 35 days (which was slightly longer than a year), but the absences from Canada occurred consistently both before and after that stay. In my view, this is a negative factor under the test.

[34]            Under question (2), the applicant's immediately family are in Canada, so this is a positive factor for the applicant.

[35]            Under question (3), the applicant has only one stay longer than 35 days in four years, which to me indicates that he is visiting rather than living in Canada. I see this as a negative factor for the applicant.

[36]            Under question (4), the applicant is 530 days short of the 1,095 day requirement. In contrast, the applicant is only about half way to meeting the requisite stay period. In particular, the applicant has been present in Canada for only one and a half years out of the last four years and absent from Canada two and a half years. In my view this is a negative factor under the test.

[37]            Under question (5), the applicant's stated reasons for the extended absences has been work related. In my view, there is no indication that the applicant's current pattern of working outside Canada will not continue indefinitely. I see this as a negative factor for the applicant.

[38]            Under question (6), the applicant's physical presence pattern and work schedule suggest that the applicant has a more substantial connection to Kuwait than to Canada. According to the applicant's citizenship application, he spent 705 days in Kuwait (including 273 days which are listed as Kuwait/India) since landing in Canada, during which time he spent only 565 days in Canada. I recognize that the applicant's wife and children are in Canada, but this factor has already been considered under question (2). I agree with the Citizenship Judge that it appears that the applicant is more closely connected to Kuwait than to Canada.

[39]            If the more flexible approach in Re Koo, supra is followed, in cases where the applicant is significantly short of the requirement to be present 1,095 days in the four years preceding the citizenship application, the applicant must be able to demonstrate that there are significant factors that mitigate this failure to meet the presence requirement of the Citizenship Act, supra such that citizenship should still be granted. Where the applicant is short by half the time stipulated under the Act, this amounts to a significant burden on the applicant in order to succeed in demonstrating why he should be approved for citizenship. The applicant has failed to provide sufficiently compelling reasons why Canadian citizenship should be approved despite being short some 530 days in the presence requirement.

[40]            In my view, the Citizenship Judge did not err whether a standard of review of reasonableness simpliciter or the "close to correctness" standard set out by Lutfy J. (as he then was) in Lam v. Canada (1999) 164 F.T.R. 177 (F.C.T.D.) is used.

[41]            The application (appeal) of the applicant is dismissed.

[42]            The applicant's citizenship application was simply premature as I have no doubt that the applicant will become a citizen of Canada when he is able to satisfy the residence requirements of paragraph 5(1)(c) of the Citizenship Act, supra.

ORDER

[43]            IT IS ORDERED that the application (appeal) of the applicant is dismissed.

                                                                                   "John A. O'Keefe"             

                                                                                                      J.F.C.C.                      

Ottawa, Ontario

April 29, 2002