Ottawa, Ontario, February 28th, 2007
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an appeal pursuant to subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 (the Act) of a decision of a Citizenship Judge dated March 8, 2006, which denied the applicant’s application for citizenship.
[2] The applicant became a permanent resident of Canada on July 5, 2001. He was selected under the Investor category of the Business Immigration program. He applied for citizenship on December 21, 2004.
[3] The applicant arrived in Canada with his wife and four children. All five of his family members have since been granted Canadian citizenship. The applicant, however, was denied citizenship because he had accumulated eight protracted absences from Canada during the time before his application for citizenship, together amounting to 1,032 days of absence out of the total 1,258 days considered by the Citizenship Judge. His absences from Canada, during each of which he travelled to Saudi Arabia and Lebanon, were as follows:
1. August 8, 2001 to January 31, 2002 (176 days), after first spending 33 days in Canada;
2. February 26, 2002 – August 15-2002 (170 days);
3. September 10, 2002 to December 2, 2002 (83 days);
4. December 22, 2002 to February 6, 2003 (46 days);
5. February 28, 2003 to May 1, 2003 (62 days);
6. May 20, 2003 to November 11, 2003 (184 days);
7. December 12, 2003 to January 31, 2003 (49 days); and
8. February 22, 2003 to November 11, 2004 (263 days).
Issue
[4] The issue raised in this appeal is whether the Citizenship Judge erred in concluding that the applicant had not satisfied the residency requirements under subparagraph 5(1)(c)(ii) of the Act.
Relevant legislation
[5] The key legislative provision at issue in this appeal is subparagraph 5(1)(c)(ii) of the Act, which provides as follows:
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Grant of citizenship 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: […] (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; […] |
Attribution de la citoyenneté 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 : […] (ii) un jour pour chaque jour de résidence au Canada après son admission à titre de résident permanent; […]
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Standard of review
[6] The issue of whether a person has met the residency requirement under the Act is a question of mixed fact and law. 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)": Lam v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 177 at paragraph 33 per Justice Allan Lutfy (as he then was). 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. Citizenship Judges are owed some deference in light of their special degree of knowledge and experience. The Act also provides a statutory right of appeal of a Citizenship Judge’s decision to the Federal Court. I agree with Justice Mosley’s reasoning in Zeng v. Canada (Minister of Citizenship and Immigration), 2004 FC 1752, in which he stated:
¶9 Applying a pragmatic and functional analysis to the review of the decisions of citizenship judges respecting the residency requirement of the Act, several judges of this court have recently concluded that a more appropriate standard would be reasonableness simpliciter: Chen v. Canada (Minister of Citizenship and Immigration) 2004 FC 1693, [2004] F.C.J. No. 2069; Rasaei v. Canada (Minister of Citizenship and Immigration) 2004 FC 1688, [2004] F.C.J. No. 2051; Gunnarson v. Canada (Minister of Citizenship and Immigration) 2004 FC 1592, [2004] F.C.J. No. 1913; Canada (Minister of Citizenship and Immigration) v. Chen 2004 FC 848, [2004] F.C.J. No. 1040; Canada (Minister of Citizenship and Immigration) v. Fu 2004 FC 60, [2004] F.C.J. No. 88; Canada (Minister of Citizenship and Immigration) v. Chang 2003 FC 1472, [2003] F.C.J. No. 1871.
¶10 I agree that the question of whether a person has met the residency requirement under the Act is a question of mixed law and fact and that Citizenship Judges are owed some deference by virtue of their special degree of knowledge and experience. Accordingly, I accept that the appropriate standard of review is reasonableness simpliciter and that, as stated by Snider J.in Chen, supra at paragraph 5, "as long as there is a demonstrated understanding of the case law and appreciation of the facts and their application to the statutory test, deference should be shown."
[Emphasis added]
I also adopt Justice Mosley’s comments in Huang v. Canada (Minister of Citizenship and Immigration.), 2005 FC 861, where at paragraph 12 he concluded that “for pure questions of fact greater deference should be shown to the Citizenship Judge's findings resulting in a standard of patent unreasonableness.”
[7] Accordingly, I conclude that the appropriate standard of review applicable to the principal issue in this appeal is one of reasonableness, and that the purely factual findings of the Citizenship Judge are reviewed on a standard of patent unreasonableness.
[8] A decision is unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. This means that a decision may satisfy the standard if it is supported by a tenable explanation even if it is not one that the reviewing courts find compelling: Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247.
The test for residency
[9] The term “residence” is not defined by statute but rather by case law. The Federal Court’s jurisprudence has yielded three distinct approaches to residence, each of which places a different emphasis on an individual’s physical presence in Canada. These approaches were summarized by Mr. Justice James Russell in Zhao v. Canada (Minister of Citizenship and Immigration), 2006 FC 1536 at paragraphs 50 and 51:
¶50 There are three general tests that have been developed by the Federal Court, and a citizenship judge may adopt and apply whichever one he or she chooses as long as it is applied properly: So v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1232, 2001 FCT 733 at paragraph 29. Under the first test, a person cannot reside in a place where the person is not physically present. Thus, it is necessary for a potential citizen to establish that he or she has been physically present in Canada for the requisite period of time. This flows from the decision in Pourghasemi (Re) (F.C.T.D.) (1993), 62 F.T.R.122, 19 Imm. L.R. (2d) 259 at paragraph 3 (F.C.T.D.), where Justice Muldoon emphasized how important it is for a potential new citizen to be immersed in Canadian society. Two other contrary tests represent a more flexible approach to residency. First, Thurlow A.C.J. in Papadogiorgakis, [1978] 2 F.C. 208, 88 D.L.R. (3d) 243 (F.C.T.D.) held that residency entails more than a mere counting of days. He held that residency is a matter of the degree to which a person, in mind or fact, settles into or maintains or centralizes his or her ordinary mode of living, including social relations, interests and conveniences. The question becomes whether an applicant's linkages suggest that Canada is his or her home, regardless of any absences from the country.
¶51 Justice Reed has outlined the third approach, which is really just an extension of Justice Thurlow's test. In Re: Koo, [1993] 1 F.C. 286 59 F.T.R. 27 (F.C.T.D.), Justice Reed held that the question before the Court is whether Canada is the country in which an applicant has centralized his or her mode of existence. This involves consideration of several factors:
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 1095 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?
The general principle is that the quality of residence in Canada must be more substantial than elsewhere. See also Lin v. Canada (Minister of Citizenship and Immigration) (2002), 21 Imm. L.R. (3d) 104, 2002 FCT 346.
The decision under review
[10] The Citizenship Judge applied the test set out in Re Koo, above, and determined whether Canada was the place where the applicant “regularly, normally or customarily lives” based on her assessment of the six factors identified by Reed J. above.
Factor 1: Was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship?
[11] The applicant arrived in Canada on July 5, 2001. He remained in Canada for 33 days before returning to Saudi Arabia for 176 days. The Citizenship Judge stated at page 3 of the decision that one cannot establish an active residence in 33 days. She further noted that the first prolonged absence was “the first in a regular pattern of prolong[ed] absences (8 in all) punctuated with returns to Canada (lasting 3 to 4 weeks).” The applicant’s immediate absence before filing his application had been for a period of 263 days. The Citizenship Judge further found that the applicant’s pattern of absences was still ongoing.
Factor 2: Where are the applicant's immediate family and dependents (and extended family) resident?
[12] The Citizenship Judge assessed the second factor as follows:
Your wife and 4 children (now young adults) came to Canada with you. Your eldest daughter, now a Canadian, went back to live with her husband in Riyadh. You stated that all of your relatives, extended family are in Lebanon.
Factor 3: Does the pattern of physical presence in Canada indicate a returning home or merely visiting the country?
[13] With respect to the third factor, the Citizenship Judge stated as follows:
You live and work in Saudi Arabia. Your immediate family is in Canada and you have a family matrimonial home in Ottawa but as you stated you come for a visit 3 to 4 times a year. In my view, Canada is the place you return to visit with your family while you work and live in Saudi Arabia.
[Emphasis added]
Factor 4: What is the extent of the physical absences?
[14] The fourth factor identified by Reed J. in Re Koo, above, recognizes that it is easier to deem an individual to be resident if his absences place him only a few days short of the 1,095 day total. In the case of the applicant, however, the Citizenship Judge emphasised that he was absent 1,032 days and present in Canada for only 226 days.
Factor 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?
[15] The Citizenship Judge referred to the applicant’s evidence at the hearing and concluded that his absences from Canada were not caused by a “clearly temporary situation”:
At the hearing when question on the extent of your prolonged ongoing absences you explained that you can provide a lot of money for your family by continuing your consulting business in Saudi Arabia. You stated that you did not want to come and live here permanently as yet because you “don’t know the value of the future”. In my view your period and nature of absences (still ongoing) can not be considered as a temporary situation.
[Emphasis added]
Factor 6: What is the quality of the connection with Canada: is it more substantial than that which exists with any other country?
[16] The Citizenship Judge acknowledged the presence of the applicant’s family in Canada, but concluded that the applicant had a more substantial connection to Saudi Arabia based on the continuous pattern of his lengthy absences. The Citizenship Judge also referred to the applicant’s statement during the hearing regarding his desire to become a Canadian citizen:
I understand that your family is here and you are committed to your family, however your continuous pattern of lengthy absences with short visits to Canada demonstrates a more substantial quality connection to Saudi Arabia. In my opinion, you do not “regularly, normally or customarily live” in Canada. At the hearing you when asked why, having the numerous benefits of a permanent resident, you wanted your Canadian citizenship you replied: “I need the passport, as a Palestinian it is difficult to travel and I want to go to Hawaii with my wife”.
[Emphasis added]
[17] Having assessed the six factors identified in Re Koo, above, the Citizenship Judge concluded that the applicant had not satisfied the residence requirement under the Act.
[18] The Citizenship Judge also considered whether to make a favourable recommendation under subsections 5(3) and (4) of the Act as she was required under subsection 15(1). These exceptional provisions allow for a favourable recommendation in cases of special and undue hardship or where an applicant has provided services of an exceptional value to Canada. The applicant did not take issue on this appeal with the Citizenship Judge’s decision not to apply them.
Applicant’s Position
[19] The applicant argues that he established a residence in Canada before his period of absence and that the time during which he was physically absent from Canada may therefore be counted towards the required residency period under subparagraph 5(1)(c)(ii) of the Act. The applicant referred the Court to several factors which, in his submission, indicate that he established a residence in Canada. The following is a summary of the factors identified by the applicant:
1. The applicant purchased his family home on August 3, 2001. He lives in this home with his wife, daughters and son. He maintained a continuous intention to keep that residence as his home, and his family has continually occupied the home since purchasing it.
2. All of the bills relating to the residence, including the mortgage, insurance, taxes, telephone, hydro, cable, and other utilities are registered in the applicant’s name and are sent to his attention for payment. He provided copies of these bills to the Citizenship Judge.
3. On February 21, 2002, the applicant and his son registered a general partnership agreement under the laws of Ontario in respect of “Sleiman Trading”. The applicant financed his son’s active Ontario business, “Mobileit”, which is a mobile telephone and data retailer.
4. The applicant has an active banking history in Canada which includes maintenance of five bank accounts with the Bank of Montreal. These include accounts for chequing, investment chequing, term investments, premium savings, and U.S. dollars.
5. Since March 1, 2002, the applicant has owned three vehicles registered in Ontario under his name. He currently owns two of these cars.
7. The applicant declared personal income and filed taxed returns in Canada for each of the 2001 to 2004 tax years. He declared Canada as his place of residence on each of his tax returns.
8. Since February 2002, the applicant has been a patient of Dr. Sabry, a family physician in Orleans, a suburb of Ottawa.
9. The applicant’s first daughter has been enrolled and continuously attended university in Canada since September 2001 until graduating with a Bachelor’s Degree in Chemical Engineering from the University of Ottawa.
10. The applicant’s second daughter has continuously attended school in Canada since the fall of 2001 and is currently enrolled at the University of Ottawa.
11. The applicant’s son has continuously attended school in Ottawa since the fall of 2001.
12. Each of the applicant’s five family members has been granted Canadian citizenship. English is their language of daily use.
13. All of the applicant’s assets, except for three pieces of foreign real estate, are located in Canada. By the time of his interview, the applicant was able to demonstrate that he had transferred $960,000 to Canada.
14. Before arriving in Canada, the applicant retired from his 24 years of employment as an oil executive in Saudi Arabia.
15. The applicant was absent Canada for the purpose of:
a) liquidating his foreign assets in both Lebanon and Saudi Arabia so that he could transfer the value to Canada;
b) managing the foreign real estate in Lebanon which the applicant could not sell;
c) providing fee-for-service business management consulting to a company in Saudi Arabia; and
d) attending his brother’s funeral in Lebanon.
16. The applicant was born and raised in Lebanon, but is a stateless Palestinian and does not have Lebanese citizenship.
17. The applicant’s only connection to Lebanon is the three pieces of real estate he owns in that country.
18. The applicant has the legal right to enter and remain in Lebanon, but has entered for only very short durations and has not remained there since becoming a permanent resident of Canada. He visits Lebanon intermittently for periods of less than ten days each and only for the purpose of managing his properties.
19. The applicant is not a citizen of Saudi Arabia. The applicant’s temporary work permit in Saudi Arabia is valid only until November 14, 2006 and is not automatically renewable.
20. The applicant temporarily rents a small apartment in Saudi Arabia.
21. The applicant receives consulting fees for the business advisory services he provides for a company in Saudi Arabia. He is not registered on the company’s payroll, and he is not a full-time permanent employee of the company.
[20] The applicant argues that his connection to Canada is more substantial than it is to Lebanon or Saudi Arabia. Rather than characterizing the periods of his stay in Canada as visits, the applicant submits that during these periods he was “returning home” after temporary business or employment situations required him to travel abroad.
[21] The applicant relies on the Federal Court’s judgment in Canada (Secretary of State) v. Nakhjavani, [1988] 1 F.C. 84, 13 F.T.R. 107, 2 Imm. L.R. (2d) 241, in which Justice Joyal stated at paragraph 15:
¶15 The Papadogiorgakis [above] case did not necessarily short-circuit the residency requirements of the Canadian Citizenship Act but it did remove it from the numbers-crunching game of figuring out whether or not any particular applicant had physically resided in Canada for three-quarters of the time during a four-year period. It imposed on the courts an enquiry covering both intention and fact, neither of these elements being considered determinative by itself. A self-serving declaration of intention therefore might have little weight unless it were buttressed by objective facts representing tangible expressions of that intention i.e. ownership of residential property, car registration, bank accounts, club or association memberships, and particularly, the continuing presence in Canada of immediate family members and to whom an individual might return from time to time even for only brief periods of time.
[Emphasis added]
[22] The applicant also referred the Court to Re Calderwood, [1989] 1 F.C. 198, 21 F.T.R. 105 (F.C.T.D.), in which the Justice Joyal held at paragraph 8 that indicia such as family connections to Canada, a continuing place of residence, Canadian bank accounts, a provincial driver’s licence, provincial health care registration, and frequency of return periods in Canada may be applied to ensure that periods spent outside Canada are included in the minimum residency calculation. The applicant argues that, in light of the same indicia demonstrated in this case, the Citizenship Judge ought to have concluded that the applicant was resident in Canada despite his absences.
Analysis
Issue: Did the Citizenship Judge err in concluding that the applicant had not satisfied the residency requirements under subparagraph 5(1)(c)(ii) of the Act?
[23] The facts of this case support the finding that the applicant did not maintain a "central existence" in Canada, or a "quality of attachment to Canada", during the four years before his citizenship application. The required time spent by the applicant in Canada in the last four years is 1,095 days in order to qualify for citizenship. The applicant only spent 226 days.
[24] As noted above, the standard of review applicable to this appeal is one based on reasonableness. I have reviewed the reasons of the Citizenship Judge and find that she did identify and apply the residency test and six factors set out in Re Koo, above. I find that the Citizenship Judge demonstrated in her reasons an understanding of the test and reasonably—if not correctly—decided that the facts do not satisfy the residency requirement under this test.
Factor 1 – Physical presence in Canada for a long period prior to absences
[25] As Justice James Russell held in Eltom v. Canada (Minister of Citizenship and Immigration), 2005 FC 1555 at paragraph 21, in applying the Koo test, the analysis is divided into two parts:
1. whether the applicant has established residency in Canada; and
2. whether the applicant has maintained that residency.
Justice Russell held that an applicant could
not “bootstrap” his qualification as a resident based on the conduct of his
family. I agree. In the case at bar, the applicant only lived in Canada for 33 days before first leaving for
Saudi Arabia, the country where
he had lived for the previous 25 years. He stayed in Saudi Arabia for almost six
months, then returned to Canada
for three weeks, and four days before leaving again for Saudi Arabia for almost six months. While
the Court was impressed with the applicant’s accomplishments within his first
33 days in Canada; e.g., purchasing a residence, purchasing automobiles,
establishing bank accounts, etc., the applicant had not centralized his
existence in Canada before
leaving Canada. The applicant
did not have a physical presence in Canada for a long period prior to his absences.
[26] Justice Russell also considered the “passive” indicia of residency in Eltom, above. He held that the Citizenship Judge must evaluate the quality of the applicant’s connection with Canada and that passive indicia such as owing homes, cars, credit cards, etc. are not enough to demonstrate that the applicant has “Canadianized” himself. I agree. Justice Russell said that the Court looks for some level of involvement in the social life of Canada, which, in the case at bar, the applicant has not done. The applicant has not “Canadianized” himself.
Factor 6 – Quality of connection with Canada
[27] The Court finds that the Citizenship Judge reasonably concluded that the appellant has not demonstrated a quality of connection with Canada that is more substantial than that which exists with any other country. In this case, the applicant has more of a connection with Saudi Arabia, where he has lived for the past 30 years, than he has with Canada. Canada has been chosen by his family as the country in which to centralize their existence. The applicant must also centralize his existence in Canada and demonstrate that Canada is his residence before he can obtain Canadian citizenship. He cannot “bootstrap” his citizenship application to that of his wife and children and expect to similarly qualify for citizenship.
Factor 5 – Physical absences caused by a clearly temporary situation
[28] With respect to the extensive and protracted absences from Canada, it is clear that these physical absences are not caused by a “clearly temporary situation”. They are an integral part of the applicant’s life. Moreover, the pattern of physical presence in Canada indicates a life split between two countries rather than a centralized mode of existence in Canada. As Mr. Justice Luc Martineau held in Canada (Minister of Citizenship and Immigration) v. Chen, 2004 FC 848 at paragraph 10:
When absences are a regular pattern of life rather than a temporary phenomenon, they will indicate a life split between two countries, rather than a centralized mode of existence in Canada, as is contemplated by the Act.
Other factors
[29]
My comments with
respect to the other factors -- factor 2 (the location of the applicant’s
immediate family), factor 3 (the pattern of physical presence in Canada
indicating a returning home or merely visiting), and factor 4 (the extent of
the physical absences – if the applicant is only a few days short of the 1,095
day total required then it is easier to find deemed residence) -- are that the
conclusions of the Citizenship Judge were reasonable, and ought not to be
set aside.
[30] The applicant referred the Court to Papadogiorgakis v. Canada (Minister of Citizenship and Immigration), [1978] 2 F.C. 208 per Thurlow A.C.J. (as he then was). This is one of the three general tests developed by the Federal Court which a citizenship judge may adopt and apply. In the case at bar, the Citizenship Judge did not adopt and apply this test. Rather, the Citizenship Judge applied the test in Re: Koo, so the Papadogiorgakis criteria are not relevant.
[31] The applicant also referred the Court to Collier v. Canada (Minister of Citizenship and Immigration), 2005 FC 1511 per Mr. Justice Paul Rouleau. That case is distinguishable because the citizenship judge in Collier failed to identify an “index country”, a country to which the applicant has greater ties than she has to Canada. No such error was made in the case at bar since the applicant has strong ties to an index country -- Saudi Arabia, the country where he has lived for the past 30 years.
Conclusion
[32] In this case, the applicant could have maximized his revenue with his consulting business in Saudi Arabia. After having transferred his assets, moved his family and purchased a family home in Canada the applicant argued before the Citizenship Judge and this Court that he had centred his existence in Canada. The applicant then faced a personal choice as to how best to pursue his livelihood and provide for his family. To do this, he left to work in Saudi Arabia. The applicant chose this option because it was in his family’s financial interest. There is no question that, if the applicant had first obtained citizenship, he would be free to pursue business opportunities anywhere in the world--including his previous country of residence--and retain the right to enter and remain in Canada. Instead, the applicant pursued business opportunities abroad before situating himself in Canada for the three year period contemplated under the Act. The result, as found by the Citizenship Judge, is that he had not yet established residence in Canada. The Court recognizes that the applicant is an outstanding man, and he will likely be an asset to Canada as a citizen in the future when his business interests allow him to spend the required time in Canada to qualify for citizenship.
[33] For these reasons, this appeal is dismissed.
JUDGMENT
THIS COURT ADJUDGES AND ORDERS that:
This appeal is dismissed with costs.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-763-06
STYLE OF CAUSE: MOHAMAD HUSSEIN SLEIMAN v. MCI
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: February 12, 2007
APPEARANCES:
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Mr. Warren L. Creates
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Mr. Alexandre Kaufman
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SOLICITORS OF RECORD:
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WARREN L. CREATES Toronto, Ontario
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JOHN H. SIMS, Q.C. Deputy Attorney General of Canada
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