Date: 20021011
Docket: T-985-01
Neutral citation: 2002 FCT 1060
OTTAWA, ONTARIO, THIS 11th DAY OF OCTOBER, 2002
PRESENT: THE HONOURABLE MR. JUSTICE LUC MARTINEAU
BETWEEN:
MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
KATINKA WEGERHOFF
Respondent
REASONS FOR ORDER AND ORDER
[1] The current application is pursuant to Rule 300(c) of the Federal Court Rules, 1998 (the "Rules"), subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 (the "Act") and section 21 of the Federal Court Act, appealing the decision of the Citizenship Judge, dated April 6, 2001, wherein the respondent's application for Canadian citizenship was approved.
[2] Furthermore, reference to the respondent's husband's decision which was also appealed by the applicant in file No. T-986-01, heard at the same time, will be made. In both files, the applicant submits that the Citizenship Judge erred in fact and in law in the assessment of these cases and that her decisions should be quashed.
[3] In order to be granted citizenship, the respondent must satisfy three conditions:
a) She must have been lawfully admitted to Canada as a permanent resident;
b) She must not have ceased to be a permanent resident pursuant to section 24 of the Immigration Act, R.S.C. 1985, c. I-2 since such admission; and
c) She must have, within the four years immediately preceding the date of her application, accumulated at least three years of residence (1,095 days in Canada), as calculated under the prescribed formula set out in paragraph 5(1)(c) of the Act.
[4] There is no issue concerning the first two criteria in the present case. The main issue raised by the applicant is whether the respondent accumulated at least three years of residence and, more particularly, whether the time spent in the United States with her husband while he was on a student visa, can be counted toward the accumulation of the 1,095 days of residence required to satisfy the residency requirement found at paragraph 5(1)(c) of the Act.
[5] The respondent became a landed immigrant on March 8, 1993. She stated on her application for citizenship, dated March 16, 1999, that she was absent on three occasions in the four years preceding her application beginning on March 16, 1995. However, the evidence shows that since she left Canada to accompany her husband to the United States, she has never re-entered Canada during the applicable four years period, other than the 144 days established by the Citizenship Judge which correspond to the period preceding her departure from Canada.
[6] The Citizenship Judge granted the respondent's citizenship application even if she was far short of the required 1,095 days of residence in Canada. In a request for additional information from the applicant, the Citizenship Judge justified her decision to grant the application in spite of the time spent in the United States by the respondent, by relying on the fact that the respondent's husband was not able to find a position in Canada. She considered the fact that the respondent's husband had applied to over 80 positions in Canada - unsuccessfully - and that he was on an exchange visitor program for students coming from outside the United States. Moreover, she considered the respondent more a Canadian than an American since her husband was simply a visitor in the United States, who was viewed there as a foreign student. She concluded by recommending the respondent for citizenship since she accompanied her husband when he was taking his fellowship.
[7] The additional information provided by the Citizenship Judge was delivered in the form of the six questions proposed by Reed J. in Koo (Re), [1993] 1 F.C. 286 (F.C.T.D) which act as indicators in determining if an individual has established residence by virtue of a centralised mode of living in Canada. The questions read as follows:
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 respondent's immediate family and dependents (and extended family) reside?
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?
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?
[8] As the respondent has not filed any material, it appears that based on the applicant's material the issues are whether or not one can consider the time spent in the United States since the expiry of the respondent's husband's student visa toward the residency requirement and whether that same amount of time impacts the "quality of connection with Canada". However, I will be answering all six questions in the present reasons.
[9] Before evaluating the issues of the case at bar, it is important to recognize that the applicable standard of review of a decision of a Citizenship Judge, as enunciated by Lutfy J. in Lam v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 410, is a standard "close to the correctness end of the spectrum". Furthermore, he also stated that:
... 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.
[10] I begin with the first question which relates to whether the respondent was present in Canada for a long period before her absences from Canada which occurred immediately before her application for citizenship. It appears that she was residing in Canada for approximately two years before accompanying her husband in the United States. In my opinion, this cannot be considered as a significant period considering that it would still not have been enough to establish deemed residency pursuant to paragraph 5(1)(c) of the Act.
[11] The second question raises the issue of where the respondent's immediate family and dependents (and extended family) reside. In the case at bar, there is no evidence concerning the respondent's extended family. The only mention of family is her husband and two children who all went to the United States at the same time and a brother-in-law residing in Calgary for the past 20 years. However, there is no evidence that the relationship was significant. Therefore, in the case at bar, this is not a criterion to establish constructive residency or to establish residency pursuant to paragraph 5(1)(c) of the Act.
[12] Furthermore, the third question is also significant as it relates to the pattern of physical presence in Canada since they left for the United States. It is alleged that she accompanied her husband on some occasions. However, the evidence indicates that she never visited Canada since she left for the United States aside from the 144 days established by the Citizenship Judge. This shows that there is no pattern of returning home which could have established constructive residency for the purpose of meeting the requirement of paragraph 5(1)(c) of the Act. In my opinion the respondent was merely visiting Canada.
[13] As to the fourth question concerning the extent of the physical absences, it is not disputed that, in the case at bar, the respondent was absent from Canada for 1,316 days and present for 144 days. The absences were a result of accompanying her husband who was on an exchange visitor program to the United States. Although the Citizenship Judge relied on that fact, she should have seen that, as a result of significant physical absences from Canada, the respondent did not meet the residency requirement of paragraph 5(1)(c) of the Act.
[14] Concerning the fifth question, the Citizenship Judge determined that these absences were a result of her husband's completion of his exchange visitor program and that had her husband found employment in Canada they would have returned to Canada. The Citizenship Judge clearly considered the respondent's situation as temporary. However, I cannot find that it is the case here based on the evidence on the record, particularly in light of the fact that while the respondent's husband contends that he applied to more than 80 employment positions, there is no evidence of any such applications save for two letters.
[15] Finally, concerning the last question the respondent must establish the quality of her connection with Canada. The Citizenship Judge concluded that the connection with Canada was more substantial than with other countries because of the contact maintained by the respondent's husband with his brother, his friends and professional contacts. Furthermore, the Citizenship Judge considered that the reason why her husband took the position that was offered to him in the United States was because he could not find a position in Canada.
[16] I do not find that these criteria are strong enough to demonstrate that the respondent had a stronger connection with Canada than with the United States. The respondent and her husband are living in the United States and the only tangible links with Canada are a bank account with the Bank of Montreal, a CIBC visa and a social insurance card. However, that type of evidence was not considered as convincing indicia of a connection with Canada in Koo (Re), supra, where Reed J. stated at p. 300:
... In so far as the quality of the appellant's attachment to Canada is concerned, he has acquired many of what I might call the standard indicia, probably on the recommendation of his consultants: property in the form of a residence; a driver's licence; bank accounts; B.C. medical coverage; a library card (which, clearly, he rarely uses); a tennis club membership (which he certainly does not use since he does not play tennis). Despite these formal indicia of connection to Canada, I have not been persuaded that the quality of the appellant's residence in Canada is more substantial than the quality of his residence in Hong Kong.
[17] Consequently, based on minimal evidence, namely the bank account, the CIBC visa, the social insurance card and the contacts maintained by the respondent's husband in Canada, it is impossible to conclude that the respondent had a more substantial connection with Canada than with the United States where they have been living since 1995.
[18] Finally, it has been established in Chan v. Canada (M.C.I.), [2002] F.C.J. 376 at para. 16, by Pelletier J. that residence must be established first before it can be maintained. The evidence on file does not confirm the Citizenship Judge's decision and, in my view, the Citizenship Judge erred in fact and in law when applying the criteria set out in Koo (Re), supra. It is clear that the respondent does not appear to have settled permanently and centralized her mode of living in Canada but rather it is evident that she has settled in the United States.
[19] Accordingly, I am of the opinion that the test set out in Koo (Re), supra, was not properly applied by the Citizenship Judge and, therefore, the applicant's appeal should be allowed. However, this does not prevent the respondent from making an application for citizenship at a later date when the residency requirement has been fulfilled.
ORDER
The appeal, brought by the Minister of Citizenship and Immigration, is allowed and the decision of the Citizenship Judge is overturned. No costs will be awarded.
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-985-01
STYLE OF CAUSE: Minister of Citizenship and Immigration v. Katinka Wegerhoff
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: September 11, 2002
REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE MARTINEAU
DATED: October 11, 2002
APPEARANCES:
Mrs. Thi My Dung Tran FOR APPLICANT
Mr. Frank Owen Wegerhoff FOR RESPONDENT
SOLICITORS OF RECORD:
Mrs. Thi My Dung Tran FOR APPLICANT
Department of Justice
Montreal, Quebec
Mr. Frank Owen Wegerhoff FOR RESPONDENT
Danville, Indiana