Date: 20031216
Citation: 2003 FC 1479
BETWEEN:
JASMINE MANN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] Jasmine Mann, an Indian citizen, married Ravinder Singh Siddou, a Canadian citizen. Under his sponsorship she received an immigrant visa and flew with him to Vancouver to start a new life. That life turned out to be hell on earth.
[2] Things did not go well in the Siddou household. Ms. Mann wanted to do the necessary to qualify as a dentist in Canada. Her husband, and his mother who lived with them, were opposed. The three of them flew back to India which for Mr. Siddou and his mother was only an eight-day trip. However, while in India they stole Ms. Mann's Indian passport and Canadian visa. It took more than two years, and a judicial review ordered by this Court, before she was issued a Canadian returning resident visa. She promptly returned to Canada and has remained here ever since.
[3] She applied for Canadian citizenship. She was turned down for the sole reason that she had not, within the four years immediately preceding the date of her application, accumulated at least three years of residence in Canada as required by section 5 of the Citizenship Act, R.S.C. 1985, c. C-29. She has appealed that decision.
[4] I will expand upon the facts before reviewing the law.
THE FACTS
[5] Ms. Mann and Mr. Siddou were married twice over in India, once before and once after she obtained her visa. Upon Mr. Siddou's sponsorship she had a fiancé visa which required the couple to marry within 90 days. On arrival in Canada on November 26, 1998, she disclosed this information to the immigration officer at Vancouver International Airport and enquired whether she was obliged to marry again in Canada. She was told that since she had already married she did not have to marry again, and the officer noted in her Landing Immigration Document that he had seen a copy of the marriage certificate.
[6] On February 5, 1999 Mr. Siddou, Mr. Siddou's mother and Ms. Mann flew to India. Mr. Siddou returned to Canada on February 13, 1999, leaving Ms. Mann in India without her Indian passport and Canadian immigrant visa.
[7] That is not all that Mr. Siddou did. On February 3, 1999, two days before leaving for India, he wrote to Citizenship and Immigration Canada through solicitors to state that he had not married Ms. Mann, would not marry her, that she was leaving Canada for India, and did not plan to return. He followed up on March 4, 1999 by providing a copy of Ms. Mann's airline ticket, a one-way ticket. Curiously, and contrary to his earlier assertions that he had not married Ms. Mann, Mr. Siddou instituted divorce proceedings in British Columbia on February 22, 2000. The divorce was granted soon after.
[8] The first step in Ms. Mann's long and arduous journey back to Canada was to obtain a duplicate Indian passport which she received on April 29, 1999. Within a week thereof she attended at the visa section of the Canadian High Commission in New Delhi. Naturally, the officer was suspicious and told her that Mr. Siddou had cancelled her sponsorship. Consequently, he refused to re-issue an immigrant visa, notwithstanding the information she provided that they had in fact married.
[9] She pressed on and hired Mr. Mangat, her solicitor in this case. Ultimately, there was a formal refusal of her application for a returning resident permit and an application for judicial review was filed before this Court. With the Minister's consent, judicial review was granted by Teitelbaum J. on July 27, 2000.
[10] Nevertheless, she waited, was reinterviewed, waited, was reinterviewed and still did not get her visa. Mr. Mangat threatened further legal proceedings.
[11] Finally, on April 3, 2001 she was issued a returning resident permit and returned to Canada on April 18, 2001. She remained in Canada continuously until she applied for Canadian citizenship December 18, 2001, and I am told is still here.
[12] On February 12 of this year her application for citizenship was refused by the Citizenship judge. In essence he approached the shortfall in the number of days she was physically present in Canada by asking whether she had centralized her mode of existence here. He purported to follow the decision of Reed J. in Re Koo, [1993] 1 F.C. 286, 59 F.T.R. 27, 19 Imm. L.R. (2d) 1.
[13] The Citizenship judge found that during the period under consideration she was left with a shortfall of 779 days. Although he noted Ms. Mann's sad tale, he said:
Your pattern of life since your arrival in 1998 is one that is split between India and Canada, with the majority of your time being spent in India, your place of birth.
...
I cannot approve your application at this time as you have not spent enough time in Canada. It is difficult to learn much about Canada or the Canadian way of life when the person spends more time out of Canada than in Canada.
...
At best your life is split between Canada and India. You have not centralized your life in this country, but have had it divided between India and Canada. Your absences appear to be structural. That is, they appear to be a pattern of life rather than a temporary phenomenon. They are not related to a humanitarian emergency, the temporary assignment of overseas duties to an employee of a Canadian company, a unique educational program, or assignment by the Canadian government to overseas duties.
[14] He also decided against making a recommendation to the Minister to exercise discretion to grant Ms. Mann citizenship despite the shortfall in days.
THE LAW
[15] The law is in a sorry state. The problem is that the Act does not say that the only days that count towards residence are those in which the applicant is physically present here. Thus, on the one hand, it has been held that the only days that count are those in which the applicant is physically present here, which is understandable in that the applicant need only be here for three of the four years immediately preceding the application. On the other, it has also been held that a person may be here in mind, but not in body, and that those days also count.
[16] In Re Papadogiorgakis, [1978] 2 F.C. 208, 88 D.L.R. (3d) 243, Thurlow, A.C.J., was dealing with the current Act in its infancy and noted that the language differed from the former Act, R.S.C. 1970 c. C-19. He was of the view that a person was normally resident within Canada only if he or she was physically present here, so as to ensure that citizenship in only granted to persons who have shown they are capable of being part of our society. However, there are exceptions. In that case, even before becoming a permanent resident, Mr. Papadogiorgakis had established his home in Canada. He then attended university in the United States. In that context, his frequent, but short, sojourns in Canada were characterized as returning home, rather than as mere visits, and his American days also counted as Canadian days.
[17] This was followed by the decision of Reed J. in Re Koo, supra, :
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 employment abroad?
(6) what is the quality of the connection with Canada: is it more substantial than that which exists with any other country?
[18] Muldoon J. took a contrary approach in Re Pourghasemi (1993), 62 F.T.R. 122, 19 Imm. L.R. (2d) 259. He said that the purpose of the Act was to ensure that everyone
...at least has been compulsorily presented with everyday opportunity to become "Canadianized". This happens by "rubbing elbows" with Canadians in shopping malls, corner stores, libraries, concert halls, auto repair shops, pubs, cabarets, elevators, churches, synagogues, mosques and temples - in a word wherever one can meet and converse with Canadians - during the prescribed three years.
[19] This divergence in the case law was commented upon by Lutfy J., as he then was, in Lam v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 177. He held that it was open to a Citizenship judge to adopt any one of the three conflicting lines of jurisprudence, and if the facts of the case were properly applied to the principles of that approach, the Citizenship judge's decision would not be wrong.
[20] Even Lam has not escaped unscathed. In Chen v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1229, 213 F.T.R. 137, 17 Imm. L.R. (3d) 222, Nadon J., as he then was, said that there cannot be two correct interpretations of the statute. However, in that particular case he said that whether he followed the test enunciated by Muldoon J., which he preferred, or Papadogiorgakis as modified by Koo, he came to the same conclusion which was that the applicant was merely visiting the country.
[21] The case law also suggests that there is a two-stage inquiry with respect to the residency requirements of the Act. At the first stage, a determination is made as to whether residence in Canada has been established. Only if residence has been established is there a determination as to whether the applicant's residency satisfies the required number of days (see the decisions of Layden-Stevenson J. in Goudimenko v. Canada (Minister of Citizenship and Immigration), 2002 FCT 447, and Ahmed v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1067, 225 F.T.R. 215.)
[22] How many days does it take to establish a residence in Canada? Surely, there is no contemporaneous test whereby it can be stated with certainty that on one day residence had not been established, but on the very next day it had. The matter is only assessed after an application for citizenship is made.
[23] In Canada (Secretary of State) v. Martinson (1987), D.L.R. (4th) 569, 13 F.T.R. 237, 2 Imm.L.R. (2d) 282, it was held that an immigrant who came to Canada for 11 days had not established herself, so that the days she was not physically present in Canada did not count. The same issue was raised in Re Ballhorn, [1981] F.C.J. No. 1114, referred to in Martinson, in which the wife resided in Canada for 30 days with her Canadian diplomat husband before she joined him in a foreign posting.
[24] If we must count days on the establishment of residence portion of the test, and indeed we must as good intentions are simply not enough, Ms. Mann was here more than twice as long as Ballhorn and six times as long as Martinson before she left for India.
[25] Furthermore, if the purpose of the Act is that the applicant rub elbows with Canadians, Ms. Mann did rub elbows, and rather sharp elbows at that, with Canadian Immigration officers, then had to deal with a Canadian lawyer, and through him with this Court.
[26] I find that she had established herself in Canada.
[27] As to maintaining residence, this is not a case of a business person parking his or her family in Canada, buying a house, obtaining a driver's license, a credit card, and declaring income so as to pay Canadian income tax all in support of the proposition that life was centralized in Canada, while most of the time was spent doing business in the land of his or her birth.
[28] Ms. Mann only voluntarily left Canada for eight days. There was no pattern of dividing her life between Canada and India. She only left Canada once. The Citizenship judge made a patently unreasonable finding of fact.
[29] In addition, as per Re Koo, supra, one must take into account the cause of the physical absence. In this case she was absent against her will as evidenced by her strenuous and ultimately successful efforts to return to Canada.
[30] In Canada (Minister of State (Multiculturalism and Citizenship)) v. Shahkar, [1991] 1 F.C. 177, 36 F.T.R. 63, 11 Imm.L.R. (2nd) 234, Mr. Shakhar was kept out of the country because his Iranian passport was withheld from him by Algerian authorities. Although Addy J. concluded that Mr. Shakhar had not met residency requirements because he had not properly established residence here in the first place, the time in which his passport was withheld was found not to be time that could be held against him "since he had no choice in the matter".
[31] If we take, and I do so take, May 6, 1999 as the day the Minister should have done what he ultimately did, then Ms. Mann more than fulfills the 1,095 days. Equity looks on that as done which ought to be done.
[32] I wish to emphasize that there were three important factors which have led me to grant the appeal:
1 - Ms. Mann had an unwavering intention to take up residence in Canada. She, in fact, established herself here. Although an initial sojourn of 72 days may often not be enough, the quality of her actions must also be considered. She left India to take up residence with her Canadian husband. This was a very significant step as historically a wife could not have a domicile distinct from her husband (although this no longer holds true due to changes in provincial legislation and the Charter);
2 - Except for eight days, her single absence from Canada was involuntary; and
3 - Most of the delay is attributable to the Minister's refusal to issue a replacement visa until after this Court ordered a judicial review.
[33] In accordance with these reasons I shall grant the appeal, quash the decision of the Citizenship judge Stuart Hodgson dated February 20, 2003, and order that the application be referred back to the Citizenship Commission to be dealt with on the basis that Jasmine Mann has met the residency requirements set out under section 5(1)(c) of the Citizenship Act, during the relevant time.
"Sean Harrington"
JUDGE
Ottawa, Ontario
December 16, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-430-03
STYLE OF CAUSE: JASMINE MANN
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: DECEMBER 9, 2003
REASONS FOR ORDER : HARRINGTON J.
DATED: DECEMBER 16, 2003
APPEARANCES:
Jaswant Singh Mangat FOR APPLICANT
Michael Butterfield FOR RESPONDENT
SOLICITORS OF RECORD:
Mangat & Company
Mississauga, Ontario FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT