OTTAWA, Ontario, this 8th day of November, 2005
PRESENT: THE HONOURABLE PAUL U.C. ROULEAU
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This was initially an application for leave and judicial review of the decision of a Citizenship Judge. At the opening of the hearing, on consent of both parties, it was determined that the matter should proceed as an appeal. A Citizenship Judge refused the applicant's application for Canadian citizenship, under sections 5(1) and 5(4) of the Citizenship Act, R.S.C. 1985 c. C-29 (the "Act"). She found that the applicant had not met the residential requirement in s. 5(1) of the Act and concluded that the applicant's intention to play professional volleyball indicated that she did not have the appropriate ties to Canada for consideration for citizenship under s. 5(4) of the Act.
[2] The applicant, Michelle Collier, is a 25-year-old citizen of Brazil and a permanent resident of Canada. She landed in Canada on June 18, 1999. Her parents and two brothers landed a few days before her, on May 23, 1999. Her brothers have become citizens and her mother is currently in the application process for citizenship. Her father works as a civil engineer for the United Nations and is currently absent from Canada.
[3] The applicant attended the University of South Florida ("USF"), on a volleyball scholarship, from 1998 to 2002. She has held returning resident permits for her time spent outside of Canada.
[4] Since her graduation from USF in 2002, the applicant has played volleyball professionally in Holland, Puerto Rico, and Greece. She has also trained with the Canadian National Women's Volleyball team, for 2-3 weeks in the summer of 2003. The National Team has encouraged her to obtain her citizenship, so she would be eligible to play for Canada at a national level.
[5] The applicant applied for citizenship on September 19, 2003.
[6] The Citizenship Judge reviewed the applicant's file and found that the applicant was well short of the requirement under s. 5(1) of the Act. The Citizenship Judge then went on to assess whether the applicant's case was a case of special or unusual hardship under s. 5(4) of the Act, which reads as follows:
| (4) In order to alleviate cases of special and unusual hardship or to reward services of an exceptional value to Canada, and notwithstanding any other provision of this Act, the Governor in Council may, in his discretion, direct the Minister to grant citizenship to any person and, where such a direction is made, the Minister shall forthwith grant citizenship to the person named in the direction.
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(4) Afin de remédier à une situation particulière et inhabituelle de détresse ou de récompenser des services exceptionnels rendus au Canada, le gouverneur en conseil a le pouvoir discrétionnaire, malgré les autres dispositions de la présente loi, d'ordonner au ministre d'attribuer la citoyenneté à toute personne qu'il désigne; le ministre procède alors sans délai à l'attribution. |
[7] The Citizenship Judge considered the six factors set out in Koo (Re) (T.D.) [1993] 1 F.C. 286, and concluded that the applicant has stronger ties to her career as a professional volleyball player than she does to Canada. The factors set out in Koo are as follows (at para 10):
(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?
[8] The Citizenship Judge noted that Canada does not have a professional volleyball league and found that the applicant's chosen career - as a professional volleyball player - outweighed the factors in favour of granting her citizenship.
[9] I am of the opinion that the Citizenship judge erred in the assessment of the factors as set out in Koo, supra, to the point that the Citizenship Judge's decision is unreasonable, and cannot be allowed to stand. The two overriding considerations are (i) the nature of her absences, which are clearly temporary, and (ii) the Citizenship Judge's failure to identify an index country, to which the applicant has greater ties than she has to Canada (a career choice is not a sufficient index country). To illustrate the errors, I will undergo a Koo assessment myself and show why the decision cannot be left to stand.
(1) was the individual physically present in Canadafor a long period prior to recent absences which occurred immediately before the application for citizenship?
[10] The answer to the first question does not aid or hinder the applicant. She has been temporarily absent from Canada on a number of occasions, to play professional volleyball. She has obtained returning resident permits for her time away from Canada. Returning resident permits are dealt with in s. 328(1) of the Immigration and Refugee Protection Regulations which reads as follows:
| 328. (1) A person who was a permanent resident immediately before the coming into force of this section is a permanent resident under the Immigration and Refugee Protection Act.
Returning resident permit
(2) Any period spent outside Canada within the five years preceding the coming into force of this section by a permanent resident holding a returning resident permit is considered to be a period spent in Canada for the purpose of satisfying the residency obligation under section 28 of the Immigration and Refugee Protection Act if that period is included in the five-year period referred to in that section.
Returning resident permit
(3) Any period spent outside Canada within the two years immediately following the coming into force of this section by a permanent resident holding a returning resident permit is considered to be a period spent in Canada for the purpose of satisfying the residency obligation under section 28 of the Immigration and Refugee Protection Act if that period is included in the five-year period referred to in that section.
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328. (1) La personne qui était un résident permanent avant l'entrée en vigueur du présent article conserve ce statut sous le régime de la Loi sur l'immigration et la protection des réfugiés.
Permis de retour pour résident permanent
(2) Toute période passée hors du Canada au cours des cinq années précédant l'entrée en vigueur du présent article par la personne titulaire d'un permis de retour pour résident permanent est réputée passée au Canada pour l'application de l'exigence relative à l'obligation de résidence prévue à l'article 28 de la Loi sur l'immigration et la protection des réfugiés pourvu qu'elle se trouve comprise dans la période quinquennale visée à cet article.
Permis de retour pour résident permanent
(3) Toute période passée hors du Canada au cours des deux années suivant l'entrée en vigueur du présent article par la personne titulaire d'un permis de retour pour résident permanent est réputée passée au Canada pour l'application de l'exigence relative à l'obligation de résidence prévue à l'article 28 de la Loi sur l'immigration et la protection des réfugiés pourvu qu'elle se trouve comprise dans la période quinquennale visée à cet article. |
[11] For the purposes of residency, days spent outside of Canada on a retuning resident permit are not considered days outside of Canada for the purposes of the residency requirement under s. 28 of the Immigration and Refugee Protection Act. Although the returning resident permits have no de jure application in relation to Citizenship applications, I see no reason why the returning resident permit cannot be considered a de facto factor in the nature of the absences (which I will deal with under factor number 5 from Koo).
(2) where are the applicant's immediate family and dependents (and extended family) resident?
[12] The applicant's immediate family reside in Canada. Her two brothers are citizens, and her mother is in the application process. Her father is an employee of the United Nations, but makes his permanent residence in Canada. This factor clearly weighs in favour of applicant for consideration under s. 5(4) of the Act. The Citizenship Judge did not reasonably consider the residence of the applicant's immediate family.
(3) does the pattern of physical presence in Canadaindicate a returning home or merely visiting the country?
[13] The applicant's pattern of physical presence in Canada clearly indicates a returning home. The applicant's absences, which are clearly temporary in nature, do not show a connection or link with any particular location; she was a student in the United States and has subsequently travelled to Holland, Puerto Rico, and Greece to play volleyball. She returns home to live with her family, between volleyball contracts, and for holidays. Her behaviour clearly indicates that she makes her home in Canada. If the applicant were given a chance to play for the Canadian National Women's Volleyball team, the number of days she is physically present in Canada would clearly go up. The fact that Canada does not have a professional volleyball league does not lead to the conclusion that the applicant has stronger ties to another country, rather than to Canada. Her behaviour clearly indicates that coming to Canada is returning home, and not visiting. The third Koo factor weighs in favour of the applicant.
(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?
[14] The fourth factor seems to weigh against the applicant; the physical absences are clearly extensive. However, two mitigating factors must be considered: (i) the absences do not indicate a significant tie to a specific (index) country outside of Canada; and (ii) the applicant had a returning resident permit for her absences. While the retuning resident permit is not binding on a citizenship application, I am of the opinion that the permit can be a factor to consider in the number of days absent, under the Koo test. I would consider the fourth factor to be neutral in the present case, given the two mitigating factors.
(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?
[15] The fifth factor clearly weighs in favour of the applicant. Her studies at USF are clearly considered in the wording of the fifth question, as is her temporary employment (volleyball contracts) in an assortment of countries/locations. The applicant's absences are clearly temporary, and the fifth factor weighs in favour of a favourable decision under s. 5(4) of the Act.
(6) what is the quality of the connection with Canada: is it more substantial than that which exists with any other country?
[16] The sixth factor clearly illustrates the Citizenship Judge's overriding error in the assessment of the applicant's citizenship application. To decide against the applicant, based on the sixth factor, the Citizenship Judge would have had to identify an index country to which the applicant has greater ties than she has to Canada.
[17] In Koo, Reed J. noted, at para 12:
I am not convinced that the quality of residence required to fulfil the requirements of the Citizenship Act admits of a similar interpretation. In my view to allow physical absence to be treated as residence within the country for the purposes of obtaining citizenship, the quality of the person's connection with this country must demonstrate a primacy or priority of residence in Canada (a more substantial connection with Canada than with any other place).
[18] The Citizenship Judge, in the instant matter, found that the applicant had a more substantial connection to her career as a professional volleyball player than she had to Canada. The applicant's career is a valid consideration under the fifth Koo factor with respect to the nature of her absences, but her career is not a relevant factor in assessing substantial connection. As Madam Justice Reed noted in Koo, the applicant must demonstrate a more substantial connection to Canada that to any other country/place. In the present matter, the Citizenship Judge committed an overriding error in assessing the applicant's connection to her career as compared to her connection to Canada; the Citizenship Judge did not identify an index country.
[19] Given my assessment of the Koo factors in the present case, I am convinced that the decision against the applicant cannot be allowed to stand. The matter is remitted to a different Citizenship Judge, to be considered with respect to the reasons I have set out in this Order.
ORDER
The appeal is allowed and the matter remitted to a different Citizenship Judge for reconsideration, having regard to the present Reasons for Order.
"Paul U.C. Rouleau"
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-585-05
STYLE OF CAUSE: Michelle Collier v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: October 31, 2005
REASONS FOR ORDER: ROULEAU D.J.
APPEARANCES:
| Silvia Valdman
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| Tatiana Sandler
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SOLICITORS OF RECORD:
| 451 Daly Avenue Ottawa, Ontario K1N 6H6
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| John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, Ontario
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