Date: 20030225
Docket: T-721-02
Neutral citation: 2003 FCT 226
Between:
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Appellant
- and -
KENNETH CAMPBELL BARKER
Respondent
REASONS FOR ORDER
KELEN J.:
- [1] This is an appeal by the Minister of Citizenship and Immigration of the decisions of Citizenship Judge Northcote dated March 20, 2002, granting the respondent and his wife Canadian citizenship. The sole issue in this appeal is whether the respondent satisfies the residency requirements of paragraph 5(1)(c) of the Citizenship Act, R.S.C., 1985, c. C-29 (the "Act").
- [2] The hearing was held simultaneously with the hearing in docket T-924-99, the appeal involving Diane Kathleen Barker, the wife of the respondent.
FACTS
- The respondent was born May 27, 1956 in Ladysmith, South Africa and is a citizen of South Africa. On July 24, 1995, the respondent was admitted to Canada as a permanent resident with his wife and two children. The respondent had difficulty securing employment in Canada in his area of expertise, high-level management in the retail industry, and it was necessary for him to return to South Africa in September 1995 to sell the couple's house. He expected that this process would take six months, but it proved to be much more difficult than he had anticipated. The respondent's family returned to South Africa and his wife resurrected the company she had wound down upon their departure.
- [4] During this time, the respondent travelled to Canada six times for the purposes of establishing contacts, attending employment interviews and doing market research. He did not secure a job offer on any of his trips to Canada, but claims that if he had received one, he would have left South Africa immediately. On August 3, 1998, the couple sold their house in South Africa and returned to Canada on Returning Resident Permits.
- [5] The respondent and his family settled in Toronto and the respondent commenced employment with Levi Strauss & Co. (Canada) Inc. in March 1999. The respondent remained with Levi Strauss until January 2000, when he accepted a position as Business Unit Manager for apparel with Adidas Canada. As part of his employment with both Levi Strauss and Adidas, the respondent was required to make a number of short business outside of Canada. Most of these trips lasted less than a week and were to the United States.
- [6] During this time, the respondent's wife also obtained employment in Canada with Holt Renfrew & Co. Limited and the couple's children attended school in Toronto. The respondent obtained an Ontario Health Card, Social Insurance Number, Ontario Driver's License and opened a bank account with the Canadian Imperial Bank of Commerce.
- [7] In January 2001 the respondent was promoted to Director of Apparel Merchandising for Adidas America and given a three-year assignment in Portland, Oregon. The respondent initially refused the promotion because he did not want to leave Canada. However, mindful of the earlier difficulties he had experienced in finding employment in Canada, he eventually agreed to the transfer. On January 17, 2001, the respondent and his family left Canada for the United States. The respondent is currently working in United States on a temporary work visa and intends to return to Canada at the end of his assignment. His work at Adidas involves active contact with Adidas Canada and Canadian suppliers.
- [8] On January 15, 2001, the respondent, along with his wife, daughter and son, applied for Canadian citizenship. At the time of application, the respondent had been physically present in Canada for 813 days in the previous four years, while his wife had been physically present in Canada for 892 days in the previous four years. Despite falling short of the 1,095-day limit found in paragraph 5(1)(c) of the Act, the respondent and his wife were granted citizenship by the Citizenship Judge Northcote. The Citizenship Judge found that the respondent "had a longtime desire to settle in Canada for many years" and that "he expects to move back to Canada by the early part of 2004." In light of these factors, the Citizenship Judge found the respondent had complied with paragraph 5(1)(c) and awarded him and his wife citizenship.
RELEVANT LEGISLATION
Grant of citizenship
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,
Attribution de la citoyenneté
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 récédé la date de sa demande, résidé au Canada pendant au moins trois ans en tout, la
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;
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;
STANDARD OF REVIEW
- The standard of review on an appeal of this nature is correctness insofar as it relates to the application of the residency test in paragraph 5(1)(c), see Zhang v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 778 at para. 7 (T.D.) (QL). Nonetheless, the Court should show some degree of deference to the Citizenship Judge and not substitute its opinion for that of the Judge where he or she, "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)", see Lam v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 177 at para. 33. The function of this Court is to verify that the Citizenship Judge has properly applied the test of his or her choosing, see Canada (Minister of Citizenship and Immigration) v. Mindich (1999), 170 F.T.R. 148 at para. 9.
TEST FOR RESIDENCY
- This Court has set out a number of different residency tests for paragraph 5(1)(c). As the Citizenship Judge based her analysis on Koo (Re), [1993] 1 F.C. 286 (T.D.), the Court will focus on the residency test set out in that case.
- [13] In Koo at pp. 293-294, Madam Justice Reed set out a flexible six-part test for residency that is not dependent solely on how many days an applicant has been physically present in Canada:
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 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
- [14] The appellant argues that the Citizenship Judge made two reviewable errors. First, the appellant contends that the respondent never centralized his mode of existence in Canada. Any intention the respondent may have had to permanently establish himself in Canada was abandoned, as demonstrated by the substantial number of absences he accumulated. Second, even if it is accepted that the respondent centralized his mode of existence in Canada, he has now "decentralized" his mode of existence by moving to the United States and his intention to "re-centralize" his mode of existence in Canada in 2004 is not enough to satisfy paragraph 5(1)(c), see Canada (Minister of Citizenship and Immigration) v. Gambino, 2002 FCT 818.
- [15] The respondent contends that he centralized his mode of existence in Canada and set down significant roots before he was transferred to the United States. He argues that his absence from Canada between 1995 and 1998 was due to necessity, as he could not stay here without employment. Furthermore, he claims he has not abandoned his intention to reside in Canada, but rather has strengthened his ties to this country while working in the United States through frequent visits to friends and family who reside here.
- [16] The Court finds that the respondent has not satisfied the residency requirement in paragraph 5(1)(c). Prior to August 3, 1998, the respondent's mode of existence was clearly centralized in South Africa. The respondent and his family had a far more substantial connection with South Africa than Canada from 1995 to 1998. This is demonstrated by considering the following facts in light of Koo:
- · the respondent spent less than two months in Canada before returning to South Africa in September 1995;
- · the respondent's family was also residing in South Africa from September 1995 to August 1998.
- · the respondent's pattern of return to Canada from 1995-1998 was more in the nature of visits to the country; and
- · after leaving Canada in 1995, the respondent's wife did not return to Canada until they relocated in August 1998.
[21] I have no doubt that upon relocating to Canada on August 3,1998 the respondent and his family centralized their mode of existence in this country. The respondent and his wife obtained employment in Canada and the couple's children attended school here. The respondent's absences after August 1998 were mostly short, business-related trips to the United States.
[22] Nevertheless, this means that the respondent had accumulated only 2½ years of residence in Canada in the four years preceding his application for citizenship on January 17, 2001. This is an insufficient amount of time to meet the requirement in paragraph 5(1)(c). The Citizenship Judge erred by finding that the respondent and his wife were resident in Canada satisfied paragraph 5(1)(c). Accordingly, her decision to grant them citizenship shall be set aside.
[23] This leaves one issue raised by the parties outstanding: was the respondent resident in Canada after January 17, 2001? The Citizenship Judge found the respondent's mode of existence remained centralized in Canada after his move to the United States. In support of this finding, the Citizenship Judge stated that the respondent's "[j]urisdiction of employment includes Canada (2 to 3 days per week)" and that he expects to move back to Canada in early 2004. The Citizenship Judge erred by taking into account an irrelevant consideration. The language of paragraph 5(1)(c) is "backwards-looking" in orientation. An applicant must have accumulated at least three years of residence "within the four years immediately preceding the date of his application" [emphasis added]. Therefore, where an applicant resides following his or her application is not a relevant consideration.
[24] The Court is not deciding whether the respondent was residing in Canada after January 17, 2001. It would be improper for the Court to do so on this appeal. Whether the respondent's mode of existence has remained centralized in Canada is a question that will be determined by a Citizenship Judge if the respondent elects to file a new application.
[25] For these reasons the Citizenship Judge erred in applying the residency test in paragraph 5(1)(c). The appeal is allowed. The decision of Citizenship Judge Northcote to grant citizenship to the respondent and his wife is to be set aside.
"Michael A. Kelen"
J.F.C.C.
Ottawa, Ontario
February 25, 2003
FEDERAL COURT OF CANADA
Date: 20030225
Docket: T-721-02
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
KENNETH CAMPBELL BARKER
Respondent
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-721-02
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND
IMMIGRATION v. KENNETH CAMPBELL BARKER
PLACE OF HEARING: TORONTO
DATE OF HEARING: FEBRUARY 10, 2003
REASONS FOR ORDER : THE HONOURABLE MR. JUSTICE KELEN
DATED: FEBRUARY 25, 2003
APPEARANCES:
BRAD GOTKIN FOR THE APPLICANT
IRA NISHISATO FOR THE RESPONDENT
SOLICITORS OF RECORD:
MORRIS ROSENBERG FOR THE APPLICANT
DEPUTY ATTORNEY GENERAL
OF CANADA
BORDEN LADNER GERVAIS LLP FOR THE RESPONDENT
TORONTO