Date: 20030214
Docket: T-1294-01
Neutral citation: 2003 FCT 169
Ottawa, Ontario, this 14th day of February, 2003
Present: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
HUSSEIN MOHAMED ALIBHAL
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Proceeding
[1] This is an application for an appeal under subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 (the "Act") of the decision of Citizenship Judge Doreen Wicks (the "Citizenship Judge"), dated June 7, 2001, wherein the Citizenship Judge did not approve the Applicant's application for a grant of citizenship under subsection 5(1) of the Act.
Background
[2] Hussein Mohamed Alibhal (the "Applicant"), is a fifty-two year old male citizen of Tanzania. On July 12, 1997, the Applicant arrived in Canada as a permanent resident, with his wife and three of his children.
[3] In September 1997, the Applicant obtained employment with Industrial Textiles Limited ("Industrial Textiles") as a special representative hired to purchase textile goods in Pakistan, Sri Lanka and other international markets and immediately left Canada for a 41 day business trip to Pakistan. In the course of this employment, the Applicant has been absent from Canada for 663 days and present in Canada for only 432 days.
[4] In addition to owning a home in Toronto, where his wife and three of his children reside, the Applicant has established a number of passive indicia of residence in Canada. For example, he is a member of the Sajjadiyya Trust, which carries out charitable projects in the areas of education, medicine, housing and general welfare for its members, and has joined the Jaffari Islamic Centre and purchased burial plots in Canada through this religious organization. The Applicant also donates to various Canadian charitable organizations and has filed Income Tax and Benefit Returns every year since his arrival in Canada. The Applicant has medical insurance from Canada Life, a social insurance number, a family physician in Canada, an Ontario health card, chequing and saving accounts with CIBC in North York, an account with Bell Canada, a membership with Aeroplan and owns a car, which is insured in Canada. Outside Canada, he maintains ownership of a home in Pakistan.
[5] The Applicant signed his application for Canadian citizenship on July 12, 2000, three years after becoming a permanent resident.
[6] On June 7, 2001, the Citizenship Judge refused the Applicant's application for citizenship because the Applicant did not meet the residency requirements set out in the Act.
[7] In her Reasons for Decision Regarding Residence, the Citizenship Judge elaborated on her reasons for refusing the Applicant's application for citizenship:
I have non-approved applicant. Much time has been spent out of Canada.
In Re: ANITA Leung (T-458-90), Justice A. Walsh stated: "Many Canadian citizens whether Canadian born or naturalized, must spend a large part of their time abroad in connection with their business and this is their choice. An applicant for citizenship however, does not have such freedom because of the provisions of section 5(1) of the Act."
The evidence clearly shows the respondent could not have centralized his mode of existence in Canada before the specific time, which is less than three years before the date of his application for Canadian Citizenship.
Applicant's Submissions
[8] The Applicant submitted that the Citizenship Judge made an error of law and fact in refusing the Applicant's application for citizenship.
[9] The Applicant relied on the decision of Thurlow A.C.J. in Re Papadogiorgakis, [1978] 2 F.C. 208 at 214 (T.D.) for the proposition that actual physical presence in Canada for the 1095 days set out in paragraph 5(1)(c) of the Act is not required. Rather, residency can be established if the applicant "in mind and in fact settles into or maintains or centralizes his ordinary mode of living with its accessories in social relations, interest and conveniences"in Canada (see also Re Lee, [1988] F.C.J. No. 1135 (T.D.) (QL); Canada (Secretary of State) v. Nakhjavani, [1988] 1 F.C. 84 (T.D.)). The relevant test is whether the Applicant regularly, normally or customarily lives in Canada (Re Koo, [1993] 1 F.C. 286 (T.D.)).
[10] In the Applicant's submission, his physical absences from Canada were caused by a temporary situation in the course of his employment. This Court has held that strong weight must be put on the fact that the only reason for an Applicant's absences from Canada is his business travel (Re Lai, [1994] F.C.J. No. 1483 (T.D.) (QL); Re Hung, [1996] F.C.J. No. 107 (T.D.) (QL); Re Lo, [1996] F.C.J. No. 1585 (T.D.) (QL); Re Chang, [1997] F.C.J. No. 1507 (T.D.) (QL); Re To, [1997] F.C.J. No. 248 (T.D.) (QL)). The Applicant submitted that the factors of his case have been consistently found to be indicators of a centralized mode of living in Canada in cases where the applicant was required to travel for business purposes. The fact that the Applicant's wife and children reside in Canada is of particular importance. (Yiu v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1692 (T.D.) (QL); Re Hung, supra; Re Lo, supra; Re Lai, supra; Re Chang, supra).
[11] The Citizenship Judge relied on the case of Re Leung, [1991] F.C.J. No. 160 (T.D) (QL). The Applicant submitted that Re Leung, supra is distinguishable from the present case because Ms. Leung's absences from Canada were for personal reasons and she had no family in Canada (see Re Chan, [1993] F.C.J. No. 1170 (T.D.) (QL)).
[12] The Applicant submitted that the Citizenship Judge incorrectly applied the factors in Re Koo, supra and erred in determining that he did not meet the residency requirements of paragraph 5(1)(c) of the Act.
Respondent's Submissions
[13] The Respondent submitted that the Citizenship Judge properly considered the factors set out in Re Koo, supra and properly applied the centralized existence test to the facts of this case.
Relevant Statutory Provisions
[14] Subsection 5(1) of the Act sets out the criteria for the granting of Canadian citizenship. Paragraph 5(1)(c) is at issue in this case:
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5. (1) The Minister shall grant citizenship to any person who ... (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; |
5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois_: ... 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;
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Analysis
[15] In my view, the Applicant has failed to establish that the decision of the Citizenship Judge should be overturned. My reasons follow.
[16] The Applicant is not challenging the factual findings made by the Citizenship Judge. Rather, he is challenging the Citizenship Judge's application of the facts of this case to the residency requirements of paragraph 5(1)(c). The appropriate standard of review for the issue actually raised by the Applicant was set out by Lutfy J., as he then was, in Lam v. Canada (Minister of Citizenship in Immigration), [1999] F.C.J. No. 410 at paragraph 33:
The appropriate standard, in these circumstances, is one close to the correctness end of the spectrum. However, where citizenship judges, in clear reasons which demonstrate an understanding of the case law, properly decide that the facts satisfy their view of the statutory test in paragraph 5(1)(c), the reviewing judges ought not to substitute arbitrarily their different opinion of the residency requirement.
[17] Although referring to Re Leung, supra, it appears that the Citizenship Judge applied the centralized mode of existence test, as set out in Re Koo, supra, which permits an individual to satisfy the residency requirements by establishing that Canada is the country in which he regularly, normally or customarily lives.
[18] In Re Koo supra, Reed J. set out a list of six factors at pages 293 and 294 which point to sufficient attachment to
Canada so as to allow for the granting of citizenship, even where the required minimum number of days has not been met:
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 dependants (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 appellant 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 employment abroad?
(6) what is the quality of the connection with Canada: is it more substantial than that which exists with any other country?
[19] Formal indicia of connection to Canada, such as a driver's licence, bank accounts and membership cards, will not be sufficient on their own to establish a centralized mode of existence in Canada. Rather, the quality of the Respondent's connection to Canada must indicate that he regularly, normally and customarily resides in this country. (Re Koo supra).
[20] Although the Applicant's immediate family resides in Canada and although he has many of the passive indicia of a connection to Canada, when the Re Koo factors are examined, it is apparent that Canada is not where he regularly, normally or customarily resides. The Applicant has been physically absent from Canada for a substantial amount of time. In the three years preceding his citizenship application, the Applicant was absent from Canada for 663 days; he was physically present in Canada for only 423 days. It is significant that the Applicant was only present in Canada for a short time, approximately two months, before leaving on his first business trip (Re Kong, [1999] F.C.J. No. 665 (T.D.) (QL); Re Kwan,[1998] F.C.J. No. 1734 (T.D.) (QL); see also Re Lai, supra)). In addition, there is no indication that the Applicant's business trips out of Canada are temporary or are likely to cease.
[21] Further, unlike in many of the cases cited by the Applicant, there is no evidence that the Applicant had to choose between accepting the offer of employment as a special representative to purchase textiles in international markets for Industrial Textiles or continue a fruitless job search in Canada (see e.g. Re Lai, supra; Re Lo, supra; Re Chan, supra). This suggests that the Applicant voluntarily chose his employment and was aware that this employment would involve trips outside of Canada. In my view, the following statement of Walsh J. in Re Leung, supra, which was relied upon by the Citizenship Judge, is applicable to this case:
Many Canadian citizens, whether Canadian born or naturalized must spend a large part of their time abroad in connection with their businesses, and this is their choice. An applicant for citizenship, however, does not have such freedom because of the provisions of section 5(1) of the Act.
[22] In Re Leung, supra, the applicant chose to accept a lucrative and desirable position with the Hong Kong Stock Exchange. Although she also spent time working in Canada and had an impressive list of accomplishments within Canada, Walsh J. refused to overturn the Citizenship Judge's non-approval of her citizenship application because the applicant had not established herself in Canada.
[23] There are a number of other factors which support the conclusion that the Applicant has not centralized his mode of existence in Canada. The Applicant owns an ancestral home in Pakistan, a country that he takes frequent business trips to. Therefore, his situation is distinguishable from that in Re Banerjee, [1994] F.C.J. No. 1360 (T.D.) (QL) and Re Hung, supra where the fact that the applicants owned no real property outside of Canada was cited as an example of their connection to Canada.
[24] The Citizenship Judge also found that, although the Applicant donated to numerous Canadian charities, he was not actually involved in the community.
[25] Finally, the Applicant applied for citizenship approximately three years after the day he arrived in Canada. As a result, his application is somewhat premature, as he has "diminished his chances of success because he did not give himself any breathing room to demonstrate the centralization of his ordinary mode of living in Canada" (Re Kong, supra at para. 50).
[26] In conclusion, the Citizenship Judge properly considered the factors in Re Koo, supra and determined that the Applicant had not centralized his mode of existence in Canada.
[27] The Citizenship Judge understood the case law, applied the facts of this case to the jurisprudence and properly decided that this Applicant had not centralized his mode of living in Canada. I am not prepared to re-weigh the evidence and substitute another conclusion for that reached by the Citizenship Judge.
ORDER
THIS COURT ORDERS that this appeal is dismissed.
JUDGE
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: T-1294-01
STYLE OF CAUSE: HUSSEIN MOHAMED ALIBHAL
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
DATE OF HEARING: MONDAY, FEBRUARY 10, 2003
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: SNIDER J.
DATED: FRIDAY, FEBRUARY 14, 2003
APPEARANCES BY: Mr. Ravi Jain
For the Applicant
Mr. Stephen Jarvis
For the Respondent
SOLICITORS OF RECORD:Ravi Jain
Barristers & Solicitors
390 Bay Street
Suite 2800
Toronto, Ontario
M5H 2Y2
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent