Federal Court Decisions

Date: 20031125

Docket: T-1532-02

Citation: 2003 FC 1384

Ottawa, Ontario, this 25th day of November, 2003

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

BETWEEN:

                                                    NARINDER KUMAR SHARMA

                                                                                                                                                       Applicant

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                 This is an appeal under section 21 of the Federal Court Act, R.S.C. 1985, c. F-7, and subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29, of the decision dated August 19, 2002 of Citizenship Judge R. Cruden, wherein the applicant's application for Canadian citizenship was denied on the basis that he had not met the residence requirements under paragraph 5(1)(c) of the Citizenship Act, supra.

[2]                 The applicant seeks an order:

1.          Allowing this application and quashing the decision of the Citizenship Judge dated August 19, 2002.

2.          Declaring that the applicant did meet the residence requirements set out under paragraph 5(1)(c) of the Citizenship Act, supra during the relevant time period.

3.          Awarding costs in favour of the applicant.

Background

[3]                 The applicant, Narinder Kumar Sharma, was born in India. On April 4, 1998, the applicant landed in Canada with his wife and two children and acquired permanent resident status. The applicant's wife and two sons became Canadian citizens in May 2001.

[4]                 At the time of his arrival in Canada, the applicant was working with UNICEF as a Programme Coordinator in Damascus, Syria. All of the applicant's absences from Canada were due to his work commitments with UNICEF in Syria:

No.	Dates	Location	Days Away
1	April 17, 1998 - September 24, 1998	Syria	160
2	October 9, 1998 - December 24, 1998	Syria	76
3	January 4, 1999 - March 25, 1999	Syria	80
4	April 12, 1999 - December 25, 1999	Syria	255
5	January 9, 2000 - September 15, 2000	Syria	250
6	October 5, 2000 - December 22, 2000	Syria	78
7	January 5, 2001 - March 2, 2001	Syria	56
8	March 5, 2001 - August 31, 2001	Syria	179
		Total	1134

[5]                 The applicant's first absence from Canada began 13 days after landing. Between the eight periods of time spent working in Syria, the applicant spent 15, 11, 28, 15, 20, 14, and 3 days in Canada respectively. From the time of his landing to the time of his citizenship application, dated September 27, 2001, the applicant had been out of Canada 1,134 days and present in Canada 137 days. This is a 958 day shortfall of the minimum 1,095 days required by paragraph 5(1)(c) of the Citizenship Act, supra.

[6]                 The applicant applied for and was issued Returning Resident Permits by Citizenship and Immigration Canada with validity dates of January 10, 2001, January 10, 2002 and May 30, 2002.

[7]                 At the time of his citizenship application, the applicant held the following:

1.          A Canadian Social Insurance Number;

2.          An Ontario Health Card;

3.          An Ontario Driver's Licence;

4.          Membership in the CAA of Central Ontario;

5.          A bank account, 2 RESP's, non-registered investments and a registered investment product with the TD Bank Financial Group;

6.          Ownership as a joint tenant with his wife of a condominium in Mississauga, Ontario;

7.          Registration of a sole proprietorship under the business name of NS-Hydrotech Canada;

[8]                 Following his citizenship application, the applicant joined the Indo-Canadian Chamber of Commerce and the Ontario Groundwater Association.

[9]                 The applicant filed personal income tax returns as a resident of Ontario since 1998 when he became a permanent Canadian resident.

[10]            The applicant was interviewed by Citizenship Judge R. Cruden on June 18, 2002. In a decision dated August 19, 2003, the applicant was denied citizenship for failing to meet the residency requirements of the Citizenship Act, supra. The decision states in part:

Thirteen days after being legally landed in Canada, you returned to your employment in Syria. Subsequently, you spent only 137 days in Canada in the period of time under consideration. I conclude that you did not establish your own residence in Canada and that you did not maintain residence here. Canada was not the place where you normally, regularly and usually resided. You had little opportunity to socialize with Canadians in Canada. You stated that you made application, without success to work for Canadian companies. Justice J. Mahoney in the Ronaasen Precedent stated that "the intention to return to Canada, however firm, is not enough to establish ongoing residence." At this time your commitment to Canada is not evident. You have contracted to continue to work in Syria with the full knowledge that you have little opportunity to spend time in Canada. This makes it extremely difficult to absorb Canadian values and integrate oneself into Canadian society. Presently, you [sic] connection with Syria appears greater than you [sic] connection with Canada. You have the potential to become a fine citizen on [sic] day, but I cannot approved [sic] this application.

For the above reasons, I am unable to approve this application only because you do not meet the residence requirement under paragraph 5(1)(c).

I have, in accordance with subsection 15(1) of the Act, considered whether to make a favourable recommendation under subsections 5(3) and (4) of the Act. You did not file any material in support of my making a favourable recommendation for the use of discretion. After having carefully considered all the circumstances of your case, I have decided that your case does not warrant making a favourable recommendation.

[11]            The applicant now appeals this decision.

Applicant's Submissions

[12]            The applicant directs the Court's attention to substantial indicia of his connection to Canada, which he argues clearly demonstrates his intention to make Canada his permanent home. His family resides in Canada, he has acquired Canadian identity documents, he owns real property in Ontario, his children attend Canadian schools, he has started a business and established himself in the Canadian community.

[13]            The applicant points out that his temporary employment with the United Nations agency UNICEF has been the only reason for his absences from Canada. He states that only after being unable to find work in Canada in his field did he renew his contract with UNICEF to work in Syria. The applicant argues that his time as an International Civil Servant with UNICEF should not impinge on the merit of his citizenship application, especially since Canada is a member of the United Nations and Citizenship and Immigration Canada issued him Returning Resident Permits which facilitated his absences from Canada.

[14]            The applicant states that he has severed all ties with India, the country of his birth, and has established extensive ties to Canada, which is where he intends to make his permanent home with his family, who are already citizens.

[15]            Relying on Re Chowdhury, [2000] F.C.J. No. 1206 (T.D.) and Singh v. Canada (MCI), [1999] F.C.J. No. 786 (T.D.), which cites Mr. Justice Thurlow in Re Papadogiorgakis [1978] 2 F.C. 208 (T.D.), the applicant argues that physical presence in Canada is no longer required to fulfill the Act's residency requirements.   

[16]            The applicant argues the standard of review to be applied to Citizenship Judge Cruden's decision is one of correctness: Lam v. Canada (MCI), [1999] F.C.J. No. 410 (T.D.). The applicant invites this Court to overturn the decision below and find that the residency requirements of the Act are met, as application of the six criteria for residency set out by this Court in Re Koo, [1993] 1 F.C. 286 (T.D.) indicate that his citizenship application should have been approved.

[17]            Finally, the applicant submits that Citizenship Judge Cruden's statement that no documents were filed in support of a discretionary favourable recommendation pursuant to subsection 5(4) is unsustainable. The applicant argues all of the documents before Citizenship Judge Cruden supported such a recommendation.

[18]            The applicant asks this Court to allow his appeal with costs.

Respondent's Submissions

[19]            Relying on Lam, supra, the respondent submits that Citizenship Judge Cruden's decision deserves more deference than the standard of review of correctness suggests. It is argued that where, as here, a citizenship judge clearly articulates an understanding of the case law and properly applies the facts to the statutory test set out in paragraph 5(1)(c) of the Act, this Court should not substitute its interpretation of the residency requirement. In the respondent's submission, there is no basis on which to disturb the decision below.

[20]            The respondent submits that the purpose of the Act's residency requirement is to ensure that applicants for citizenship become familiar with Canada and become integrated into Canadian society or "Canadianized": Re Pourghasemi (1993), 19 Imm. L.R. (2d) 259 (F.C.T.D.).

[21]            Furthermore, the respondent submits that the Act's allowance for one year's absence during the four years preceding a citizenship application creates a strong inference that an applicant's presence in Canada during the other three years under consideration must be substantial. The respondent cites Re Hui (1994), 24 Imm. L.R. (2d) 8 (F.C.T.D.) in support of this proposition.

[22]            Notwithstanding that different formulations of the residency test have been followed by this Court, the respondent submits that the existing jurisprudence clearly indicates that a two stage inquiry exists with respect to the residency requirements of paragraph 5(1)(c) of the Act. First, an applicant must initially establish residence in Canada at least three years prior to their application and, second, they must have maintained residence in Canada throughout the time under consideration: Ahmed v. Canada (MCI), 2002 FCT 1067; Goudimenko v. Canada (MCI), 2002 FCT 447.

[23]            The respondent submits that Citizenship Judge Cruden clearly turned her mind to this two-part inquiry and found that the applicant neither established nor maintained residence in Canada.

[24]            In the respondent's view, the facts before Citizenship Judge Cruden supported the decision that the applicant failed to establish residence in Canada. The applicant stayed in Canada only 13 days after being landed. His first absence was for 160 days and over the next four years, he spent only 137 days in Canada. The respondent submits that the applicant was never in Canada long enough to establish a residence here.

[25]            The respondent relies on Mandal v. Canada (MCI), 2002 FCT 488 as a decision based on similar facts where it was held that the citizenship judge had not erred in concluding the applicant had failed to establish residence in Canada.

[26]            In response to the applicant's argument that physical presence is no longer required for residence under the Act, the respondent argues the cases cited do not assist the applicant's argument. In special or exceptional circumstances, physical presence in Canada is not required to maintain residence once it is established. Since the respondent takes the position the applicant never "established" residence in Canada, it is argued that the matter ends there and the Citizenship Judge's decision should stand.

[27]            Relying on Re Tsoi, [1997] F.C.J. No. 82 (T.D.), the respondent submits that allowing the applicant's appeal would result in the meaning of the residency requirement becoming reductio ad absurdum.

[28]            The respondent further submits that Citizenship Judge Cruden clearly considered the materials set out by the applicant but did not find the circumstances of the applicant's case to warrant a favourable recommendation pursuant to subsection 5(4) of the Act.

[29]            Issues

1.          Did Citizenship Judge Cruden err in finding that the applicant did not meet the requirements of paragraph 5(1)(c) of the Citizenship Act, supra?

2.          Did Citizenship Judge Cruden err in failing to exercise the discretion granted by subsection 5(4) of the Citizenship Act, supra to make a favourable recommendation to the Minister?

Relevant Statutory Provisions

[30]            The relevant sections of the Citizenship Act, supra state:

5. (1) The Minister shall grant citizenship to any person who . . . (c) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, and has, within the four years immediately preceding the date of his or her 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) est un résident permanent au sens du paragraphe 2(1) de la Loi sur l'immigration et la protection des réfugiés 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; . . .

Analysis and Decision

[31]            Standard of Review

I would adopt the standard of review set out in Lam, supra by Lutfy J. (as he then was) at paragraph 33:

Justice and fairness, both for the citizenship applicants and the Minister, require some continuity with respect to the standard of review while the current Act is still in force and despite the end of the de novo trials. 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. It is to this extent that some deference is owed to the special knowledge and experience of the citizenship judge during this period of transition.

[32]            Issue 1

Did Citizenship Judge Cruden err in finding that the applicant did not meet the requirements of paragraph 5(1)(c) of the Citizenship Act, supra?

In essence, paragraph 5 requires an applicant for Canadian citizenship to have spent three years or 1,095 days of residency in Canada in the four years immediately preceding the date of his application. In the present case, the applicant was present in Canada for only 137 days. This means that the applicant is short 958 days of the minimum 1,095 days required by paragraph 5(1)(c) of the Act.

[33]            There are certain situations where absences from Canada have been counted towards the required 1,095 days of residency required by the Act.

[34]            A review of the authorities indicates that the period of absences from Canada have only been counted towards the required 1,095 days if the applicant has centralized his or her mode of living in Canada before the absences begin (see, for example, Goudimenko v. Canada (Minister of Citizenship and Immigration), 2002 FCT 447; Ahmed v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1067; Canada (Minister of Citizenship and Immigration) v. Brockie, [2000] F.C.J. No. 1967 (T.D.); Mandal v. Canada (Minister of Citizenship and Immigration), 2002 FCT 488).

[35]            The applicant has submitted that because he was under contract to UNICEF, he could not terminate his contract of employment immediately when he entered Canada. When his contract ended, he could not obtain employment in Canada. As a result, he took employment with the United Nations and as a result of this, he was absent from Canada at the times noted above.

[36]            The applicant also states that his Returning Resident Permits ought to allow the absences for these periods to be counted towards the residency requirements. I do not agree. There is nothing in the Citizenship Act, supra to support the applicant's contention.

[37]            The fact that the applicant is working for the United Nations agency UNICEF, does not assist him as this Court has held that persons in similar situations have to meet the requirements that they establish and maintain residency during the relevant time periods (see: Ahmed, supra; Shrestha v. Canada (Minister of Citizenship and Immigration), 2003 FCT 594).

[38]            Dubé J. of this Court stated as follows in Canada (Minister of Citizenship and Immigration) v. Lo, [1999] F.C.J. No. 130 (T.D.) (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.

[39]            The applicant's first absence from Canada came 13 days after he was landed in Canada. In my view, the applicant did not establish a centralized mode of living in Canada in the 13 days prior to his first absence of 160 days from Canada. As a result, I am not able to count his periods of absence from Canada towards his residence requirement of 1,095 days.

[40]            Another approach to establishing residency is outlined Re Koo, supra. Reed J. stated 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?

[41]            The applicant submits that an analysis of the factors in Re Koo, supra, indicate that his citizenship application should have been approved. I disagree, for the reasons that follow. I am of the view that factor 2 favours the applicant and factor 6 is probably neutral. The other factors do not favour the applicant.

[42]            It is obvious when you look at factor 1, it is contemplated that an applicant must have been present in Canada for a long period of time prior to absences which occurred immediately before the application for citizenship. In this case, the applicant was present for only 13 days before his first absence.

[43]            Under factor 2, the applicant's wife and family are in Canada.

[44]            Under factor 3, the applicant's pattern of brief periods of physical presence in Canada are indicative of visiting his family, not returning home.

[45]            Under factor 4, the applicant, since his date of landing until the date of his application, has been out of Canada for 1,134 days and present in Canada for 137 days. This constitutes an extensive absence from the country.

[46]            Under factor 5, although the applicant works with UNICEF on limited duration contracts, his employment has been renewed a number of times and is no longer consistent with being a "clearly temporary situation".

[47]            Under factor 6, the applicant's family's connection is more substantial than that which exists with any other country. The applicant would have a strong connection with Canada if he spent more time in Canada.

[48]            It is my opinion that in assessing the factors in Re Koo, supra, I would reach the same conclusion as above, namely that the applicant has not established a centralized mode of living in Canada.

[49]            Issue 2

Did Citizenship Judge Cruden err in failing to exercise the discretion granted by subsection 5(4) of the Citizenship Act, supra to make a favourable recommendation to the Minister?

Subsection 15(1) of the Act requires that where a citizenship judge is unable to approve an application, the citizenship judge must, before denying the application, consider whether or not to recommend an exercise of discretion under subsections 5(3), 5(4) or 9(2) as the circumstances may require.            

[50]            Subsection 9(2) does not apply to this case. As to the application of subsections 5(3) and 5(4), this is a discretionary decision of the Citizenship Judge. The Citizenship Judge addressed this in the decision by stating:

I have, in accordance with subsection 15(1) of the Act, considered whether to make a favourable recommendation under subsections 5(3) and (4) of the Act. You did not file any material in support of my making a favourable recommendation for the use of discretion. After having carefully considered all the circumstances of your case, I have decided that your case does not warrant making a favourable recommendation.

[51]            The applicant states that the Citizenship Judge's statement that no materials were filed in support of a favourable recommendation for the use of discretion is unsustainable as he filed several documents. I take the Citizenship Judge to be saying that the applicant did not file any separate or additional material with respect to the exercise of discretion. That the Citizenship Judge considered all the material filed on the appeal is supported by the fact that the Citizenship Judge stated, "After having carefully considered all the circumstances of your case, I have decided that your case does not warrant making a favourable recommendation." I am not prepared to interfere with the Citizenship Judge's exercise of discretion.

[52]            In my view, the Citizenship Judge did not err and the application (appeal) of the applicant is denied.

                                                  ORDER

[53]            IT IS ORDERED that the application (appeal) of the applicant is denied.

                                                                                   "John A. O'Keefe"             

                                                                                                           J.F.C.                      

Ottawa, Ontario

November 25, 2003

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   T-1532-02

STYLE OF CAUSE: NARINDER KUMAR SHARMA

- and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

                                                         

PLACE OF HEARING:                                   Toronto, Ontario

DATE OF HEARING:                                     Thursday, October 16, 2003

REASONS FOR ORDER AND ORDER OF O'Keefe J.

DATED:                      Tuesday, November 25, 2003

APPEARANCES:

Jaswant Singh Mangat

FOR APPLICANT

Rhonda Marquis

FOR RESPONDENT

SOLICITORS OF RECORD:

Mangat & Company

Mississauga, Ontario

FOR APPLICANT

Morris Rosenberg, Q.C.

Deputy Attorney General of Canada

FOR RESPONDENT