Date: 20001128
Docket: T-1994-99
BETWEEN:
MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
ALISTAIR GEORGE BROCKIE
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.:
PROCEEDINGS
[1] This is an appeal brought under subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 (the "Act") of the decision of Citizenship Judge Scott dated September 15, 1999. In her decision, Citizenship Judge Scott approved the respondent's application for Canadian citizenship. The applicant, the Minister of Citizenship and Immigration (the "applicant") seeks an Order quashing the above decision and an Order "giving the decision that Citizenship Judge Scott should have given, namely, refusing the respondent's application for Canadian citizenship."
BACKGROUND FACTS
[2] The respondent, Alistair George Brockie (the "respondent"), a citizen of Scotland, was granted permanent residence in Canada on August 28, 1995 and entered Canada with his wife and daughter on that same day. The respondent's wife gave birth to their son in Canada in 1997. The respondent submitted his application for Canadian citizenship on August 29, 1998.
[3] Citizenship Judge Barbara Scott determined that the residence test of paragraph 5(1)(c) of the Act, which requires at least three years (1,095 days) of residence in Canada within the four years immediately preceding the date of the application for citizenship, had been met by the respondent. The Citizenship Judge determined that the respondent was physically present in Canada for 580 days and therefore had a shortage of 516 days of the 1,095 required by the Act. In her decision at page 5 of the certified materials, Scott's hand written reasons are as follows:
| Although absences are extensive, they are virtually all work related -- highly specialized work (off shore drilling). Because the client's family and home is here, because work travel is involuntary, because he has "Canadianized" himself through local sports clubs and continuing life in Canada, he meets the criteria as set out by Madame Justice Reed in re: Koo whereby absences may be counted as presence. |
[4] According to the respondent's figures, his absences from Canada were as follows:
| From |
To |
Destination |
No. of Days Absent from Canada |
Reason for Absence |
|
| 1 |
Sept. 12/95 |
Oct. 4/95 |
UK |
22 |
Work |
| 2 |
Oct. 24/95 |
Nov. 15/95 |
UK |
22 |
Work |
| 3 |
Dec. 5/95 |
Dec. 27/95 |
UK |
22 |
Work |
| 4 |
Jan. 16/96 |
Feb. 7/96 |
UK |
22 |
Work |
| 5 |
Feb. 27/96 |
March 20/96 |
UK |
22 |
Work |
| 6 |
April 9/96 |
May 1/96 |
UK |
22 |
Work |
| 7 |
June 21/96 |
July 8/96 |
UK |
17 |
Work |
| 8 |
Sept. 17/96 |
Oct. 9/96 |
UK |
22 |
Work |
| 9 |
Oct. 29/96 |
Nov. 20/96 |
UK |
22 |
Work |
| 10 |
Dec. 10/96 |
Jan. 3/97 |
UK |
24 |
Work |
| 11 |
Jan. 19/97 |
Feb. 12/97 |
UK |
24 |
Work |
| 12 |
March 13/97 |
April 4/97 |
UK |
22 |
Work |
| 13 |
April 22/97 |
May 18/97 |
Indonesia |
26 |
Work |
| 14 |
June 24/97 |
July 25/97 |
Indonesia |
31 |
Work |
| 15 |
Aug. 20/97 |
Sept. 20/97 |
Indonesia |
31 |
Work |
| 16 |
Oct. 8/97 |
Nov. 6/97 |
Indonesia |
29 |
Work |
| 17 |
Nov. 26/97 |
Dec. 19/97 |
Indonesia |
23 |
Work |
| 18 |
Dec. 20/97 |
Jan. 2/98 |
UK |
13 |
Vacation |
| 19 |
Jan. 3/98 |
Jan. 30/98 |
Indonesia |
27 |
Vacation |
| 20 |
Feb. 13/98 |
Feb. 15/98 |
USA |
2 |
Vacation |
| 21 |
March 24/98 |
April 20/98 |
Italy |
27 |
Vacation |
| 22 |
May 22/98 |
May 26/98 |
UK |
4 |
Vacation |
| 23 |
May 27/98 |
June 17/98 |
Dubai |
21 |
Vacation |
| 24 |
July 21/98 |
Aug. 10/98 |
UK |
20 |
Vacation |
| TOTAL |
516 |
[5] Aside from absences number 18 and 20 which were vacations and number 22 spent working at the UK office of an Oil company, the respondent's absences were due to his work at offshore drilling sites.
[6] The respondent puts forth the following as indicia of his residence:
| [ · ] He quit his job with Shell and became self-employed as a drilling consultant when his permanent residence application was accepted |
| [ · ] When he first came to Canada, he and his family moved all of their household possessions to Canada. |
| [ · ] Upon arriving in Canada, he rented out his Scottish property and then later sold it to provide equity to purchase a Canadian residence. |
| [ · ] He maintained no other residence than that in Canada. |
| [ · ] His employment expertise is in offshore drilling which requires him to work at overseas locations. |
| [ · ] He and his family centralized their mode of living in Calgary, Alberta: among other things, his daughter was enrolled in preschool; his family participated in their local community association and obtained a family library membership; he joined and played with the Calgary United Soccer Association; he canvassed for local charities; his family purchased a vehicle; and his family utilized Canadian banks and credit cards. |
| [7] The respondent has his own UK company, AGB Consultancy Ltd. and set |
up his own Canadian company, Monashee Resources Inc., which at the time of his application had not been able to secure a contract with a Canadian company.
ISSUE
| [8] Did Citizenship Judge Scott err in finding that the respondent met the |
residence requirements of paragraph 5(1)(c) of the Citizenship Act?
APPLICANT'S SUBMISSIONS
| [9] The applicant submits the jurisprudence demonstrates two interpretations |
of the test to be followed for paragraph 5(1)(c):
1. The test in Re Papadogiorgakis, [1978] 2 F.C. 208 (F.C.T.D.) that physical presence in Canada is not necessary but only evidence of establishment of a centralized mode of living in Canada; and
2. The opposite test applied by Muldoon J. in Pourghasemi, Re (1993), 62 F.T.R. 122 (F.C.T.D.) that at least three years of physical presence in Canada is mandatory.
| [10] The jurisprudence indicates, regardless of the test used, that applicants |
must demonstrate by objective facts an established residence of their own in Canada three years preceding the application which has been maintained during this time. Where in the four years preceding the application, a Canadian residence is not established prior to any absence from Canada, the requirements of the Act have not been met. The applicant submits actual residence must be established and that mere intention is insufficient.
| [11] The applicant submits that Pourghasemi, supra, more accurately reflects |
Parliament's intent having regard to the underlying objectives of paragraph 5(1)(c). The recent cases of Canada (Minister of Citizenship and Immigration) v. Ho (1998), 48 Imm. L.R. (2d) 262; Chan (Re), [1999] F.C.J. No. 21, T-2283-97 (January 6, 1999) (F.C.T.D.); and Afandi (Re), [1998] F.C.J. No. 1606, T-2476-97 (November 6, 1998) (F.C.T.D.) have adopted the approach in Pourghasemi, supra. The applicant also offers the cases of Koo, Re (1992), 59 F.T.R. 27 (F.C.T.D.) and Canada (Minister of Citizenship and Immigration) v. Lok (1998), 152 F.T.R. 207 where the residence requirements were found not to be met by Reed J.
| [12] The applicant submits this Honourable Court has held that absence from Canada |
for the purpose of work during the qualifying period is insufficient to overcome the legislative purpose of the residence requirement in spite of other formal indicia of connection to Canada in cases such as Canada (Minister of Citizenship and Immigration) v. Bernal, [1998] F.C.J. No. 1600, T-781-98 (November 4, 1998) (F.C.T.D.); Chan (Re), supra; Canada (Minister of Citizenship and Immigration) v. Kadid, [1999] F.C.J. No. 714, T-1232-98 (May 5, 1999) (F.C.T.D.); and Canada (Minister of Citizenship and Immigration) v. Lee, [1999] F.C.J. No. 1797, T-1277-98 (November 18, 1999) (F.C.T.D.). The applicant argues that the facts in this case are indistinguishable from those in Koo, Lok, Bernal, Chan, Kadid and Lee, supra.
| [13] The applicant argues that, in any event, even Re Papadogiorgakis, supra |
recognized the requirement for actual presence in Canada. Thurlow J. indicated that the departure from that strict requirement could only be in a close case, and only then, after an applicant had already established an extended physical and substantial presence in Canada before the proscribed time period under the Act. In Re Papadogiorgakis, supra, the applicant had been physically present in Canada for over three years before the four year period in paragraph 5(1)(c) and for two years during that time period.
| [14] The applicant argues this case is not a "close case" as the respondent was only in |
Canada for 15 days after being lawfully admitted for permanent residence (which he received only three years prior to applying for citizenship) before his first absence which lasted 22 days. The respondent has only been physically present in Canada for 579 days, or 52 % of the qualifying period. The applicant also submits the respondent did not establish a Canadian residence prior to any absence from Canada, nor in the alternative, did he maintain an established residence throughout the relevant period. The respondent had lease agreements terminable on short notice, kept a similar work pattern as he had in the United Kingdom and continued to work solely for a foreign employer.
RESPONDENT'S SUBMISSIONS
| [15] The respondent argues that aside from Canada (Minister of Citizenship and |
Immigration) v. Chan, supra, the decisions cited by the applicant do not reflect the varied standard of review since the change of the Federal Court Rules, 1998. The decision of Lufty J. (as he then was) in Lam v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 177 (F.C.T.D.) is the starting point in the respondent's submission. In Lam, supra, three interpretations of the test for paragraph 5(1)(c) were considered: the Papadogiorgakis and Pourgasemi, supra approaches, and the approach in Koo, Re, supra, specifically, whether Canada is where the person "regularly, normally or customarily lives" or has their centralised mode of existence. After examining whether there was a privative clause, the role of the Tribunal, the purpose of the Act, the expert nature of the Tribunal, and the nature of the problems heard by Citizenship Judges, Lufty J. concluded the appropriate standard of review was one of correctness.
| [16] In moving from a de novo hearing to an application-based review, a Citizenship |
Judge is open to elect the test for residency. Provided the judge's reasons demonstrate knowledge of the test and its proper application, the Court ought not to set aside the decision. The respondent cites some 24 decisions which have followed Lam, supra to show that this has now become the prevalent approach. The Koo, Re, supra approach was clearly adopted by the Citizenship Judge in this case. The reasons of the Citizenship Judge show that all the relevant factors before her were considered and that she properly applied the Koo, Re, supra approach in determining Canada as the place the respondent "regularly, normally, or customarily lives."
| [17] The respondent submits the facts before the Citizenship Judge showed that he had |
established Canada as his place of residence. All of his possessions were moved to Canada and he quit his job in order to relocate to Canada. Although the characterization of his work with AGB as a "foreign employer" is strictly correct; AGB is merely his personal corporation for the purposes of providing consulting services to offshore operations.
RELEVANT STATUTORY PROVISIONS
| [18] Paragraph 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29 states: |
| 5. (1) The Minister shall grant citizenship to any person who (a) makes application for citizenship; (b) is eighteen years of age or over; (c) has been lawfully admitted to Canada for permanent residence, has not ceased since such admission to be a permanent resident pursuant to section 24 of the Immigration Act, and has, within the four years immediately preceding the date of his 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; (d) has an adequate knowledge of one of the official languages of Canada; (e) has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship; and (f) is not under a deportation order and is not the subject of a declaration by the Governor in Council made pursuant to section 20. |
| 5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois_: a) en fait la demande; b) est âgée d'au moins dix-huit ans; c) a été légalement admise au Canada à titre de résident permanent, n'a pas depuis perdu ce titre en application de l'article 24 de la Loi sur l'immigration, 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; d) a une connaissance suffisante de l'une des langues officielles du Canada; e) a une connaissance suffisante du Canada et des responsabilités et avantages conférés par la citoyenneté; f) n'est pas sous le coup d'une mesure d'expulsion et n'est pas visée par une déclaration du gouverneur en conseil faite en application de l'article 20. |
| ANALYSIS AND DECISION |
| [19] It is a requirement of paragraph 5(1)(c) of the Act that an applicant for citizenship |
| (respondent) have at least three years (1,095 days) of residence in Canada in the four years immediately preceding the date of the application for citizenship. |
| [20] The jurisprudence of this Court has held that in certain circumstances, periods of |
| time spent away (absences) from Canada can be counted as time to accumulate the required minimum 1,095 days of residence. The absences from Canada can only be counted as periods of residence if an applicant has centralized his or her mode of living in Canada prior to the absences. |
| [21] The respondent, according to his figures, was absent from Canada for 516 days in |
| the four year period immediately preceding his application for citizenship. |
| [22] Dube J. of this Court stated in Canada (Minister of Citizenship) v. Lo (January 22, |
| 1999), Docket T-1082-98 at page 2: |
| 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. |
| [23] I have come to the conclusion that the respondent did not establish a centralized |
| mode of living in Canada in the 15 days he was in Canada before his first absence from Canada. I am therefore not prepared to count his periods of absence from Canada toward the residence requirement in paragraph 5(1)(c) of the Act. As a result, the Citizenship Judge made a reviewable error when she ruled that the respondent had met the residence requirements of paragraph 5(1)(c) of the Act and granted the respondent citizenship. In my opinion, the Citizenship Judge erred whether a standard of review of "reasonableness simpliciter" or the "close to correctness" standard set by Lutfy J. (as he then was) in Lam, supra is adopted. |
| [24] In coming to the conclusion that I have reached, I have considered the |
| respondent's activities in Canada, but it is my opinion as noted above, that it is next to impossible to establish a centralized mode of living in Canada in a mere 15 days of residency. I have also considered the fact that the respondent has no other residence except Canada, but in my opinion a centralized mode of living in Canada must be established before departure from Canada in order to have the time spent away from Canada apply to the residency requirement of 1,095 days. |
| [25] Simply put, the respondent's application is premature and I have no doubt that the |
| respondent will become a citizen of Canada when he is able to satisfy the residence requirements of paragraph 5(1)(c) of the Act. |
| [26] The appeal of the Minister is allowed. |
| ORDER |
| [27] IT IS ORDERED THAT the appeal of the Minister is allowed. |
| "John A. O'Keefe" |
| J.F.C.C. |
| Toronto, Ontario |
| November 28, 2000 |
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
| COURT NO.: T-1994-99 |
| STYLE OF CAUSE: MINISTER OF CITIZENSHIP AND IMMIGRATION |
Applicant
- and -
ALISTAIR GEORGE BROCKIE
Respondent
PLACE OF HEARING: CALGARY, ALBERTA
DATE OF HEARING: THURSDAY, NOVEMBER 16, 2000
REASONS FOR ORDER
| AND ORDER BY: O'KEEFE J. |
| DATED: TUESDAY, NOVEMBER 28, 2000 |
APPEARANCES:
| Ms. Tracy King at Mr. Bradstaff's office |
For the Applicant
| Mr. Tony Clark |
For the Respondent
SOLICITORS OF RECORD: Department of Justice
Edmonton Regional Local Office
211 Bank of Montreal Building
10199 - 101 Street
Edmonton, Alberta
T5J 3Y4
| For the Applicant |
Sherritt Greene
Barristers & Solicitors
2902, 500- 4th Avenue S.W.
Calgary, Alberta
T2P 2V6
| For the Respondent |
FEDERAL COURT OF CANADA
Date: 20001128
Docket: T-1994-99
Between:
MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
ALISTAIR GEORGE BROCKIE
Respondent
REASONS FOR ORDER AND ORDER