Date: 20021011
Docket: T-986-01
Neutral citation: 2002 FCT 1059
OTTAWA, ONTARIO, THIS 11th DAY OF OCTOBER, 2002
PRESENT: THE HONOURABLE MR. JUSTICE LUC MARTINEAU
BETWEEN:
MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
FRANK OWEN WEGERHOFF
Respondent
REASONS FOR ORDER AND ORDER
[1] The current application is pursuant 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 wife's decision which was also appealed by the applicant in file No. T-985-01, 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) He must have been lawfully admitted to Canada as a permanent resident;
b) He 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) He must have, within the four years immediately preceding the date of his 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 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. In August 1995, he left Canada to attend a training program in the United States as an exchange student. He then completed his exchange visitor program at the end of 1998 and accepted a job in the United States, as he indicated in a letter dated February 15, 2000, which he sent to the Canadian authorities to enquire about the process for renewal of his return resident permit.
[6] On March 16, 1999, the respondent made an application for citizenship. It was established by the Citizenship Judge that the respondent was physically present in Canada for 144 days during the four year period preceding the date of his application for citizenship - March 16, 1995 to March 16, 1999 -. This period of 144 days corresponds to the period preceding his departure from Canada. This was not in question before me. Moreover, the Citizenship Judge approved the respondent's application for citizenship even if he was far short of the required 1,095 days of residence in Canada.
[7] The additional information provided by the Citizenship Judge was delivered in the form of the six questions put forth by Reed J. in Koo (Re), [1993] 1 F.C. 286 (F.C.T.D), which set out the line of reasoning to determine 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) 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?
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] In her decision, the Citizenship Judge approved the respondent's application for citizenship although he was far short of the 1,095 days of residence in Canada required by the Act. According to the request for additional information sent to the applicant, the Citizenship Judge concluded that the respondent very much wished to return to Canada with his family. Further, she pointed out that the respondent could not get a job in Canada - even after sending more than 80 applications for employment positions in Canada. He was in the United States for an exchange visitor program and he achieved the said program - he really was only there temporarily on an exchange visitor program. Though the respondent has a job in the United States, he intends to return to Canada. On Document 4 of the wife's Citizenship Judge's record, the respondent specifies the days he was in Canada since leaving the country on August 7, 1995:
1- 11/27/96-12/3/96 - Defense of MSc thesis at U of C (Calgary, AB) - 7 days
2- 9/20/97-9/23/97 - Job interviews and lecture (Halifax, NS) - 4 days
3- 5/2/98-5/3/98 - Job interview (Fredericton, NB) - 2 days
[9] The Citizenship Judge concluded that even though the respondent was physically living in the United States, the fact that he was in an exchange visitor program those days should be added to his days of residence in Canada. The 13 days were not added to the 144 days of presence in Canada but this did not affect her decision either way. The Citizenship Judge decided therefore to recommend his application for citizenship.
[10] 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 in Lam v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 410, by Lutfy J., 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.
[11] The respondent represented himself at the hearing before the Court and also acted as representative of his wife in file No. T-985-01. In both files, no written memoranda or respondent's records were filed within the prescribed time provided under the Rules. The Prothonotary refused to grant a last minute motion filed by the respondent for an order authorizing him to file a respondent's record. An appeal of said decision was rejected by the Court the day of the hearing. However, the respondent made extensive representations and cited numerous authorities during the course of his oral argument. I have considered all these before rendering the present reasons. Moreover, I do not feel it is necessary to discuss same in the present reasons since I have concluded in both files that the Citizenship Judge did not properly apply the test set out in Koo (Re), supra.
[12] It is clear that the Citizenship Judge erred in fact and in law, and that the evidence does not support the conclusion that Canada is the place with which the respondent has the most significant attachment or where he has centralized his mode of existence.
[13] For the reasons expressed below, the appeal is well founded. I will be addressing all six questions posed by Reed J. in Koo (Re), supra, in the present reasons.
[14] I start with the first question which relates to whether the respondent was present in Canada for a long period before his absences from Canada which occurred immediately before his application for citizenship. It appears that he was residing in Canada for approximately two years before leaving for 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.
[15] As established in the respondent's wife's decision, the second question raises the issue of where the respondent's immediate family and dependents (and extended family) reside. In the case at bar, the only evidence concerning the respondent's extended family, relates to a brother living in Calgary for the past 20 years. As for his immediate family, he has a wife and two children who all came to the United States with him at the same time. In the case at bar, therefore, this is not a criterion to establish constructive residency or to establish residency according to paragraph 5(1)(c) of the Act. Moreover, as argued by the applicant, no evidence was offered on the manner in which the relationship with his brother was maintained.
[16] Furthermore, the third question is also significant as it relates to the pattern of physical presence in Canada since the respondent and his family left for the United States. The return of the respondent to Canada since he left for the United States, aside from the 144 days established by the Citizenship Judge, clearly 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. The respondent only came to Canada for short periods of time and for job interviews or conferences, which mostly shows that he was visiting as opposed to returning home. Therefore, in my opinion, the respondent was merely visiting Canada on these occasions.
[17] In relation to the fourth question established in Koo (Re), supra, 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. These absences were a result of 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 deemed residency requirement found at paragraph 5(1)(c) of the Act. Particularly, it must be noted that the respondent remained in the United States even after the completion of the exchange visitor program. Therefore, I would be unable to calculate the entire period of absences towards the 1,095 day requirement as submitted by the respondent.
[18] As to the fifth question, the Citizenship Judge determined that these absences were a result of the respondent's completion of his exchange visitor program and that had he found employment in Canada he and his family 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 minimal evidence on the record, especially in light of the fact that while the respondent contends that he applied for more than 80 employment positions, there is no evidence of any such applications save for two letters.
[19] Finally, concerning the last question the respondent must establish the quality of his connection with Canada. The Citizenship Judge concluded that the connection with Canada was more substantial than with other countries considering the contact maintained by the respondent with his brother, his friends and professional contacts. Furthermore, the Citizenship Judge considered that the reason why the respondent accepted the position that was offered to him in the United States was because he could not find a position in Canada.
[20] The connection the respondent has with Canada is clearly not as substantial as the one he and his family hold with the United States. The respondent and his family are living in the United States and the only tangible links left 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 as follows 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 ...
[21] Consequently, based on minimal evidence, namely the bank account, the CIBC visa, the social insurance card and the contacts maintained by the respondent in Canada, it is impossible to conclude that he had a more substantial connection with Canada than with the United States where he and his family have been living since 1995.
[22] Furthermore, at the hearing, the respondent raised the issue of his financial situation as a reason why he could not maintain better tangible links with Canada. Even though this argument shows that in some ways it was difficult for the respondent to meet the residency requirement, it does not justify the failure to fulfill the residency requirement under paragraph 5(1)(c) of the Act. The requirement respecting residency does not constitute one of the criteria the Minister has discretion to waive on compassionate grounds pursuant to subsection 5(3) of the Act. Therefore, I am unable to accept this argument.
[23] 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. With respect to the Citizenship Judge's decision, I do not find that the evidence on file enables the conclusion that the respondent fulfills the residency requirement of paragraph 5(1)(c) of the Act. It is clear that the respondent does not appear to have settled permanently and centralized his mode of living in Canada but rather it is evident that he has settled in the United States.
[24] Accordingly, I am of the opinion that the Citizenship Judge erred in fact and in law and did not properly apply the test set out in Koo (Re), supra, 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 granted 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-986-01
STYLE OF CAUSE: Minister of Citizenship and Immigration v.
Frank Owen Wegerhoff
PLACE OF HEARING: Montreal, Québec
DATE OF HEARING: September 11, 2002
REASONS FOR order and order : the Honourable Mr. Justice Martineau
DATED: October 11, 2001
APPEARANCES:
Thi My Dung Tran FOR APPLICANT
Frank Owen Wegerhoff HIS OWN BEHALF
SOLICITORS OF RECORD:
Morris Rosenberg FOR APPLICANT
Deputy Attorney General for Canada
Montreal, Québec
Frank Owen Wegerhoff HIS OWN BEHALF
Danville, Indiana USA