Federal Court Decisions

 

 

Date: 20061123

Docket: T-468-06

Citation: 2006 FC 1423

Ottawa, Ontario, November 23, 2006

PRESENT:     The Honourable Barry Strayer

 

 

BETWEEN:

SHIRDI NULLIAH

Applicant(s)

and

 

MINISTER OF CITIZENSHIP

AND IMMIGRATION

 

Respondent(s)

 

REASONS FOR JUDGMENT AND JUDGMENT

 

Introduction

[1]               This is an appeal under subsection 14(5) of the Citizenship Act, R.S., 1985, c. C-29 (Act).

 

Facts

[2]               The Applicant is a citizen of South Africa, having been born there in 1978.  He came with his family to Canada in 1983.  He returned briefly to South Africa and then the family has lived here since 1985.  The Applicant went to school in Edmonton between 1985 and 1996.  During that time, he was involved in many student activities, community work and sports.  In 1996 he was accepted into a 5-year medical school program at a medical college in India where he proceeded to study.  After graduation he stayed there for a further year of internship at the same hospital and then a further year of studies for a United States licensing examination program.  He returned to Canada in the summer of 2003.  While studying in India, he had returned annually to see his family.  Within a few weeks after his return to Canada in 2003, he applied for citizenship.  It is common ground that in the four years preceding that application which was submitted on September 26, 2003 he had been present in Canada for only 171 days and absent 1289 days. 

 

[3]               Paragraph 5(1)(c) of the Act states that a permanent resident (which the Applicant was), in order to be given citizenship, must have “within the four years immediately preceding the date of his or her application, accumulated at least three years of residence in Canada…”.  As will be discussed below, this requirement has been frequently interpreted by this Court as not requiring an actual physical presence within Canada for the whole of three years out of the preceding four years, if an Applicant can demonstrate that he has established himself clearly as a Canadian resident notwithstanding absences from the country from time to time. 

 

[4]               The citizenship judge hearing the Applicant’s application for citizenship concluded that during the seven years of medical training in India the Applicant had not “centralized” his mode of living in Canada and that he had therefore not met the requirements of paragraph 5(1)(c) of the Act.  The citizenship judge also declined to make a recommendation under either subsections 5(3) or 5(4) of the Act.  Those subsections provide as follows:

 

[5]               The Applicant appeals these decisions.

 

Analysis

[6]               The parties agreed before me that the standard of review of decisions of citizenship judges on the issue of residence is that of reasonableness.  That corresponds with the analysis of many other judges of this Court:  see, for example, Zeng v. Canada (Minister of Citizenship), 2004 FC 1752 at paras. 9-10; Canada (Minister of Citizenship) v. Lee, 2005 FC 785 at para. 25.  I respectfully concur in that view.  What is involved essentially in such a decision is the application of some principles of law to the particular facts of the case, a process which normally attracts the standard of review of reasonableness.

 

[7]               It has been held in this Court that there are at least two approaches which citizenship judges can take to the application of the residence requirements of paragraph 5(1)(c) of the Act.  One involves a strict mathematical application of the residence requirements, interpreting the word “residence” as equal to “physical presence”.  Another permissible approach is to interpret “residence” as meaning something such as “normal residence”, which is to say that a person need not be physically present for the whole of the three years out of four preceding the application for citizenship, but may be absent from time to time if he or she can establish that they have “centralized” their mode of existence in Canada.  This latter test was enunciated, not for the first time but perhaps most clearly, in Re Koo, (1992) 59 F.T.R. 27 (D.D.) at para. 10.  It has been said in this Court that a citizenship judge may choose either one test or the other, but having chosen one must then apply it in a coherent fashion:  see Canada (Minister of Citizenship) v. Mindich (1999), 170 F.T.R. 148 at para. 9;  Liam v. Canada (Minister of Citizenship), [1999] F.C.J. No. 410 at para. 14.

 

[8]               In the present appeal, the Applicant contends that the citizenship judge had chosen the Re Koo test but failed to apply it coherently, ignoring some of the factors identified by Justice Barbara Reed in Re Koo, above, as being appropriate for determining whether an Applicant had centralized his/her mode of existence in Canada.  On the other hand, the Respondent argues that the citizenship judge here was actually applying the mathematical test and that the use of that test clearly would prevent the Applicant from obtaining citizenship, as he had been present in Canada for only 171 days in the previous four years, whereas he was required to be in Canada for at least 1095 days, that is, three years.  Therefore the Respondent contends that there is no basis for challenging the decision. 

 

[9]               It is true that the citizenship judge here did not express himself as clearly as he might in indicating what test he was applying.  I am satisfied, however, from the careful reading of his decision that he was really attempting to apply the Re Koo type of test.  If he intended to apply the mechanical test of equating “residence” to “physical presence” then he would not have needed to go beyond the first three sentences of the operative part of his decision.  These sentences were as follows: 

According to the Citizenship Act, the four year period preceding the date of application under consideration is September 16, 1999 to September 16, 2003.  During this period you were physically present in Canada for 171 days and were physically absent for 1289 days or nearly 88% of the time.  You are short 929 days of physical presence in Canada.

 

 

[10]           Instead the citizenship judge went on to remark that the Applicant had spent “very little time in Canada during the seven years of medical training”, that he had indicated he was planning to gain clinical experience in the United States and do further studies there, and had noted earlier that the rest of the Applicant’s family were Canadian citizens.  Perhaps more importantly he speaks of the time when the Applicant was studying in India and returning only occasionally to Canada and says:

During that time your mode of living was not centralized in Canada and your connection to India appears to be much stronger than your connection to Canada.

 

 

[11]           None of these points would have been material to a strict application of a requirement of 1095 days of physical presence in Canada in the four years preceding his application for citizenship.  So I can assume the citizenship judge intended to apply the Re Koo test.

 

[12]           Unlike the Applicant, however, I am satisfied that the citizenship judge adequately applied that type of test of centralization of a mode of life in Canada.

 

[13]           In determining whether the citizenship judge here did an adequate analysis of the Re Koo factors, I should first say that in my view it is wrong to treat those factors as enunciated by Justice Reed as some kind of code or mandatory checklist.  I do not think that she intended them as such.  In the paragraph in which she sets out six factors or questions to consider she begins by the following:

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 centralised his or her mode of existence. Questions that can be asked which assist in such a determination are:…

 

 

[14]           It will be seen that she was basically setting out a rationale for not insisting on physical presence as the equivalent of “residence”.  She said that the alternative test is whether an Applicant “regularly, normally or customarily lives” in Canada and offered another formulation as to whether “he or she has centralised his or her mode of existence” in Canada.  She then goes on to list questions “that can be asked which assist in such a determination…” [emphasis added].  In my view the questions which follow are simply examples of questions that might assist in establishing whether the Applicant’s mode of existence had been centralized in Canada.  She does not say that these are the questions which must be asked, nor does she say that they are exhaustive.  I therefore believe that if a citizenship judge’s line of reasoning appears to be rationally directed toward determining if, in the period in question, the Applicant had centralized his life in Canada, his conclusions should not be rejected just because he has not mechanically followed the Re Koo list of questions.

 

[15]           I believe the citizenship judge has adverted to a number of factors which would help him determine whether the Applicant regularly, normally or customarily resided in Canada during three of the four years preceding his application.  The citizenship judge notes that the Applicant was not in fact present regularly in Canada since he finished his grade 12 and went to India in June, 1996.  This is pertinent to question (1) set out in Re Koo.  He notes that the Applicant’s family members are Canadian citizens and his father is a businessman with extensive community involvement presumably in Edmonton where he lives.  This is pertinent to question (2) in Re Koo.  The citizenship judge notes that the Applicant has spent very little time in Canada during the seven years of medical training in India, a matter pertinent to question (3) in Re Koo.  He does note that the Applicant was short 929 days of having the requisite three years presence in Canada, a point pertinent to answering question (4) in Re Koo.  He notes that “your connection to India appears to be much stronger than your connection to Canada”, a point pertinent to answering question (6) in Re Koo.  Most importantly he quotes the language used in Re Koo as the basic test to which the enumerated questions are pertinent: namely in his conclusion “your mode of living was not centralized in Canada”.

 

[16]           Counsel for the Applicant contended that the citizenship judge wrongly applied the evidence because he cited a letter filed with the application for citizenship in September, 2003 in which the Applicant requested urgent processing of his citizenship application so that he could pursue studies and an examination in the United States to get medical qualifications there.  In that letter he also said that he wanted to do a post-graduate degree in the United States and a residency program in surgery there “over the next four years”, adding “without a Canadian citizenship I stand a very dismal chance of attaining a spot at a good university”.  In that letter he concluded by saying:

I do have intentions of coming back to Edmonton, after finishing my higher studies in the US.  I would like to work here and make this my home once again.

 

[Emphasis added]

 

 

The citizenship judge also noted that at the hearing the Applicant indicated that he was going to apply for a medical residency in Canada.  Counsel for the Applicant felt that the citizenship judge erred in paying attention to the letter at all and using it as a basis for saying in his decision “your future in relation to where you will be residing appears unclear”.

 

[17]           In my view it was quite proper for the citizenship judge to have particular regard to the letter of September, 2003 which accompanied the application for citizenship.  In applying the residency requirements, the citizenship judge must consider the events and expressed intentions leading up to the application submitted on September 26, 2003, not what has transpired since the application:  see, for example, Canada (Secretary of State) v. Yu, [1995] F.C.J. No. 919 (T.D.) at para. 8.  It was not improper or irrelevant for the citizenship judge to take note of the letter of September 3, 2006 the thrust of which was to ask for the acceleration of a grant of citizenship to the Applicant in order that he could leave the country and go to the United States where he planned to spend the next four years.  The phrase “I do have intentions of coming back to Edmonton… I would like to work here and make this my home once again.” could reasonably be interpreted by the citizenship judge as the words of a person who did not regard himself as a resident of Canada in 2003.

 

[18]           Similarly counsel for the Applicant complains that the citizenship judge should have taken into account the statement in a “residence questionnaire” completed by the Applicant to the effect that he intends to practice as a doctor in Alberta.  This form was completed on December 4, 2004 some three months after the date of his application for citizenship which for the reasons stated above is the critical date: the citizenship judge should address his mind to events and expressions of intent prior to and including that date.

 

[19]           I am therefore satisfied that the decision of the citizenship judge was reasonable.  He had regard to the relevant factors in concluding that the Applicant had not accumulated three years of residence in Canada during the four years preceding his application for citizenship.

 

[20]           Counsel for the Applicant also argues that the citizenship judge did not make a determination, as he was obliged by subsection 15(1) of the Act to do, as to whether to recommend an exercise of discretion by the Minister under subsection 5(3) or by the Governor in Council under subsection 5(4) to grant citizenship to the Applicant notwithstanding his failure to establish residence.  I believe that this issue was raised by the Applicant to the end that I might refer this matter back to the citizenship judge for consideration.  In reply to my question as to how subsection 5(3) could be relevant to this Applicant, counsel conceded that only subsection 5(4) would be pertinent and that it could have been resorted to on the basis that the Applicant would suffer special unusual hardship if he were denied citizenship in the circumstances.  I have held elsewhere in Re Khat, 1991, 49 F.T.R. at 253 that determinations by a citizenship judge under subsection 15(1) cannot be the subject of an appeal to

this Court.  That aside, I accept the submission by the Respondent that the citizenship judge in this case did make a determination as to whether he could make a recommendation under subsection 5(4).  He stated as follows:

There was no evidence presented to me at the hearing of special circumstances that would justify me in making such a recommendation under either of subsections 5(3) or 5(4).

 

 

Disposition

[21]           For these reasons the appeal will be dismissed.

 

 

JUDGMENT

            THIS COURT ADJUDGES that the appeal be dismissed.

 

 

 

“ B. L. Strayer ”

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          T-468-06

 

STYLE OF CAUSE:                          SHIRDI NULLIAH

                                                            v.

                                                            MINISTER OF CITIZENSHIP AND IMMIGRATION

 

 

PLACE OF HEARING:                    EDMONTON, ALBERTA

 

DATE OF HEARING:                      NOVEMBER 7, 2006

 

REASONS FOR JUDGMENT

AND JUDGMENT:                          JUSTICE STRAYER

 

DATED:                                             November 23, 2006

 

 

 

APPEARANCES:

 

Ms. Wendy Bouwman-Oake	FOR THE APPLICANT
Mr. W. Brad Hardstaff	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Andrew, March & Oake LLP Edmonton, Alberta	FOR THE APPLICANT
John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, Ontario	FOR THE RESPONDENT