Date: 20001024
Docket: T-144-00
BETWEEN:
ANNETTE RENATE DOMNIK
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
DAWSON J.
[1] These are my reasons for allowing Ms. Domnik's appeal from the decision of citizenship judge Lamartine Silva, dated November 30, 1999, whereby Judge Silva refused Ms. Domnik's application for Canadian citizenship on the ground that she had not met the residence requirement under paragraph 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29 as amended ("Act").
THE FACTS
[2] Ms. Domnik immigrated to Canada from Germany at the age of seven with her mother and sister. They came to join Ms. Domnik's father, who was already in Canada. At that time Ms. Domnik acquired landed immigrant status in Canada.
[3] Ms. Domnik is now thirty-two years of age, and remains a citizen of Germany. Ms. Domnik applied for Canadian citizenship by application dated April 27, 1998. Her parents and sister are now Canadian citizens.
[4] After immigrating to this country as a child, Ms. Domnik's entire education was completed in Canada. She graduated with a Bachelor of Commerce degree from Queen's University in Kingston in 1991.
[5] Ms. Domnik stated that after graduation she made determined efforts to find an entry level position in strategic marketing in Canada, however she was unable to find such a position in Canada. Therefore, Ms. Domnik applied for, and was offered, a strategic marketing position in Germany with Braun AG.
[6] As a result of accepting the position, Ms. Domnik moved to Germany on January 4, 1992. Since then, with the exception of the period between July of 1994 and October of 1996 when Ms. Domnik worked near Boston, Massachusetts, for a subsidiary of Braun Inc., Ms. Domnik has worked and lived in Germany.
[7] The tribunal record indicates that Ms. Domnik was present in Canada for 181 days of the 1,461 days preceding the filing of her citizenship application. Ms. Domnik therefore had a shortage of 914 days with respect to meeting the statutory three year residence requirement.
[8] Before the citizenship judge, Ms. Domnik claimed that she considered her absence from Canada temporary and that her intention was to return to Canada as soon as her career situation permitted. She emphasized her financial ties to Canada, including RRSP savings, investments, a bank account, a shareholding in a family business, and real property holdings. She has maintained her status as a permanent resident and has sought and obtained a series of returning residents permits from Employment and Immigration Canada, and its successor Citizenship and Immigration Canada. Her "most meaningful social relationships" were said to be centralized in Ontario.
[9] Since November 1, 1996, Ms. Domnik has been employed by Braun Canada Ltd., a Canadian company. In that capacity Ms. Domnik has spent a significant portion of her time on Canadian and U.S. marketing activities. She has been paid a portion of her employment income in Canadian funds, directly into a Canadian bank account. Ms. Domnik advised that by gaining international strategic marketing experience abroad she was positioning herself for a senior marketing/general management position in Canada, hopefully within the Gillette/Braun organization. She advised that she has clearly communicated to her employer her desire to move back to Canada and to work in Canada for one of the Gillette/Braun subsidiaries.
[10] Ms. Domnik advised that she has visited Canada as often as her employment situation permitted, that she has maintained a room in her parents' home, and that when she left Canada she took no significant personal possessions with her, other than clothing and some textbooks related to her work.
[11] Ms. Domnik appeared at the hearing before the citizenship judge on November 22, 1999 and the letter informing her of the refusal of her citizenship application was dated November 30, 1999.
[12] In the refusal letter, the citizenship judge concluded that Ms. Domnik met all of the requirements of the Act with the exception of the requirement found in paragraph 5(1)(c) of the Act relating to residence.
ISSUES
[13] Ms. Domnik raised two issues with respect to the citizenship judge's decision:
| 1. Did the citizenship judge err in finding that she did not satisfy the residence requirement?; and |
| 2. Did the citizenship judge err in declining to make a recommendation for the exercise of the Ministerial discretion pursuant to subsections 5(4) and 15(1) of the Act? |
ANALYSIS
[14] The jurisprudence of this Court establishes that there is a certain amount of deference owed to the specialized knowledge and experience of citizenship judges. In Lam v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 177 (T.D.), the standard of review applicable to appeals to this Court under subsection 14(5) of the Act was described by Mr. Justice Lutfy, as he then was, as follows:
| [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. [emphasis added] |
[15] This jurisprudence also makes it clear that a citizenship judge is entitled to adopt one particular approach to the determination of the residence requirement over another. So long as the approach chosen by the citizenship judge is correctly applied, the intervention of this Court is not warranted.
[16] In the present case, I have concluded that it is not clear from the reasons of the citizenship judge which approach to the residence requirement the judge applied.
[17] The citizenship judge quoted from both the judgment of Muldoon, J. in Re Pourghasemi (1993), 19 Imm. L.R. (2d) 259 (T.D.) and from Reed, J. in Re Koo, [1993] 1 F.C. 286 (T.D.).
[18] Those cases represent disparate views of the residence requirement.
[19] In that portion of the citizenship judge's reasons which was not a simple recital of excerpts from the jurisprudence of this Court, the judge said "[n]o doubt you are aware that under special circumstances, persons have been deemed to satisfy the intent of the residency requirement despite lengthy physical absences from Canada".
[20] This appears to be a reference to a test applied on a number of occasions by Pinard, J. in cases such as Re Mui (1996), 105 F.T.R. 158 (T.D.).
[21] The citizenship judge never specifically articulated the test the judge applied. The ratio of the decision is as follows:
| You arrived in Canada and were landed in August 7, 1975 at the age of 7. You went through school in Canada. And graduated at Queen's University in 1991 with a Bachelor of Commerce. After graduation, you went to live and work in Germany and U.S.A. You rent a home and own a car in Germany. You used your lawyer's address for correspondence; you came to Canada on November 21 for a hearing on November 22, 1999, and left to U.S.A. to go back to Germany on November 27, 1999. Fact: you make your residence in Germany, since 1992. By your own admission you come to Canada just to visit. Fact: you pay no taxes in Canada, but pay in Germany. As a consequence of your need to stay out of Canada for such a long time, I am unable to approve your application for citizenship at this time. I believe you will make a fine citizen one day, but at this time I am unable to modify the requirements to the degree necessary in your case. |
[22] The facts recited above are essentially correct. While Ms. Domnik has not made her residence in Germany since 1992, as stated by the judge, I do not find that error alone to be material because since 1992 Ms. Domnik has resided out of Canada.
[23] However, the judge then went on to recite extracts from the jurisprudence which detailed the distinction between the status of a landed immigrant and a citizen. I find significant the portions of the quoted jurisprudence underlined by the citizenship judge in the refusal letter.
[24] Quoting from the decision of Pratte, J. in Blaha v. Canada (Minister of Citizenship and Immigration), [1971] F.C. 521 (T.D.), the citizenship judge emphasized the following: "Parliament wishes ... to ensure that Canadian citizenship is granted only to persons who have shown they are capable of becoming a part of our society."
[25] Quoting from the decision of Joyal, J. in Canada (Secretary of State) v. Nakhjavani, [1988] 1 F.C. 84 (T.D.), the citizenship judge underlined the following:
| I fail to see where in the period of 1982-1986, the respondents became in any way interwoven into the Canadian fabric of therewise developed the kind of relationship with Canadian or their institutions within the meaning contemplated by Parliament in its Statute. |
| The jurisprudence is clear that before the length or tenure of residence can be subjected to the residency test under the Act, an applicant must first of all establish that he has taken up residence in Canada. |
[26] The jurisprudence so emphasized by the citizenship judge is, in my respectful view, wholly inapplicable to Ms. Domnik's situation.
[27] Before me in oral argument it was very honourably conceded by counsel for the Minister that if Ms. Domnik had applied for citizenship prior to her departure from Canada there is little or no doubt that she would have obtained her Canadian citizenship.
[28] It is clear on the evidence that was before the citizenship judge, that from the time Ms. Domnik was seven, until she was twenty-three and graduated from Queen's University, Ms. Domnik unquestionably showed that she was capable of becoming a part of our society and she did become interwoven into the Canadian fabric.
[29] I find that the reasons of the citizenship judge do not evidence understanding of the unique circumstances before the judge. The reasons demonstrate neither a proper understanding of the case law nor a proper application of the facts before the judge to that case law.
[30] For the reasons given, despite the cogent and helpful submissions of counsel for the Minister, the decision in question will be set aside and Ms. Domnik's appeal allowed.
"Eleanor R. Dawson"
Judge
Ottawa, Ontario
October 24, 2000