Date: 20020927
Docket: T-1994-01
Neutral citation: 2002 FCT 1016
Ottawa, Ontario, this 27th day of September, 2002
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
MAJDAL SADEQ AL TTAIE
Respondent
[1] This is an appeal of the decision of the Citizenship Judge, dated September 13, 2001, wherein the respondent's application for Canadian citizenship was approved.
[2] The applicant seeks an order quashing the decision of the Citizenship Judge. The applicant further seeks costs of this application.
Background
[3] The respondent, Majdal Sadeq al Ttaie, was born in Kuwait on August 25, 1974, but remains a stateless person. The respondent claims to belong to a class of people not eligible for citizenship in Kuwait.
[4] The respondent arrived in Canada as a landed immigrant on July 17, 1996. Three years later, on July 17, 1999, the respondent applied for Canadian citizenship. The respondent stated that she had been physically present in Canada for 330 days during the 1,095 days since she had landed in Canada.
[5] The respondent commenced dentistry studies at St. Petersburg Pavlov State Medical University, in St. Petersburg, Russia, in March, 1997.
[6] During the 1,095 day period between landing and applying for citizenship, the respondent's history of absences from Canada since landing were as follows:
| No. |
Dates |
Location |
Reason |
Days Absent |
|
0 |
July. 17/96 |
Landed in Canada |
|
(0 days) |
|
1 |
Mar. 17/97 - July 5/98 |
Russia |
Study |
474 days |
|
2 |
Aug. 29/98 - Jun. 17/99 |
Russia |
Study |
291 days |
|
3 |
July 17/99 |
Applied for citizenship |
|
(0 days) |
|
|
Total |
|
765 days |
|
[7] The respondent was physically present in Canada for 330 days during the four years preceding her application for Citizenship, which is 765 days short of three years (1,095 days) as required by paragraph 5(1)(c) of the Citizenship Act, 1974-75-76, c. 108, s. 1.
[8] The Citizenship Judge approved the respondent's application for citizenship.
[9] This is the judicial review of the decision of the Citizenship Judge dated September 13, 2001, in Halifax, Nova Scotia, wherein the respondent's application for Canadian citizenship was approved.
Applicant's Submission
[10] The applicant, Minister of Citizenship and Immigration, submits that the appropriate standard of review is correctness, and that the Citizenship Judge did not "in clear reasons which demonstrate an understanding of the case law" properly decide that the respondent had fulfilled the requirements of the legislation per Lutfy, J. (as he then was) in Lam v. Canada (Minister of Citizenship and Immigration) (1999) 164 F.T.R. 177 (T.D.) at paragraph 33.
[11] The applicant submits that the only indicia of the respondent's residence in Canada presented to the Citizenship Judge were evidence of an active bank account, income tax filings for the years 1997 to 1999, a Nova Scotia Medical Services Insurance card, a social insurance number, department store cards and a library card.
[12] The applicant submits that this is much less evidence of the respondent centralizing her mode of living in Canada than the applicant did in Canada (Minister of Citizenship and Immigration) v.Al Farra [2000] F.C.J. No. 1042 (QL) (T.D.) per O'Keefe J.
[13] The applicant submits that in the words of Reed J. in Canada (Minister of Citizenship and Immigration) v.Arico [1999] F.C.J. No. 882 (QL) (T.D.) at paragraph 9, "her connection to Canada is to her family, not the country." The applicant submits that despite the existence of dentistry programs in Canada, the respondent chose to study in Russia rather than to remain in Canada.
[14] The applicant submits that Re Papadogiorgakis, [1978] 2 F.C. 208 (T.D.) per Thurlow A.C.J. (as he then was) should not be applied to the respondent's situation, but rather the approaches in Minister of Citizenship and Immigration v. Rahman, [1999] F.C.J. No. 655 (QL) (T.D.) per Simpson J. and Canada (Minister of Citizenship and Immigration) v. Kwan [2000] F.C.J. No. 54 (QL) (T.D.) at paragraph 5 per McGillis J. should be followed.
[15] The applicant submits that in Canada (Minister of Citizenship and Immigration) v. Wu [1999] F.C.J. No. 1194 (QL) (T.D.) at paragraph 11, an applicant for citizenship had been in Canada for the first 15 months after becoming a permanent resident, yet Evans J. allowed the appeal of the Minister on the basis that "her ordinary mode of living cannot be said to be centralized here." The applicant submits that, similarly, the respondent in this case has not shown that her mode of living had become centralized in Canada, and was in Canada for an even shorter period of time than Mrs. Wu before her first lengthy absence.
Respondent's Submissions
[16] The respondent submits that the appropriate standard of review is correctness.
[17] The respondent submits that for nearly one year, the respondent established herself in Canada, completing the TOEFL preparation course. The respondent submits that she conducted research into dentistry programs in Canada, and determined that she would have great difficulty being accepted in Canada and that the program would be lengthy and costly.
[18] The respondent submits that she maintained her central mode of residence in Canada after travelling to Russia, to begin a dentistry program there, in March, 1997.
[19] The respondent submits that a number of divergent approaches have been taken by the Federal Court in considering residency requirements under paragraph 5(1)(c) of the Citizenship Act, supra.
[20] The respondent submits that because the law is not settled, a Citizenship Judge may choose whichever approach he or she wishes, provided that approach is followed correctly (see Canada (Minister of Citizenship and Immigration) v. Araksia (1999), 2 Imm. L.R. (3d) 293 at paragraph 6 (T.D.)).
[21] The respondent submits that the Citizenship Judge is free to apply the Re Papadogiorgakis, supra test and the standard of review being correctness, the decision is reviewable on the basis of the application of the test in question, rather than the appropriateness of the test.
[22] The respondent submits that the Citizenship Judge should consider the approach in Re Papadogiorgakis, supra as enhanced in Re Koo [1993] 1 F.C. 286 (T.D.) per Reed J.
[23] The respondent submits that the quality of the connection to Canada is not exclusively dependent on the length of time spent in Canada prior to departure.
[24] The respondent submits that in Canada (Ministre de la Citoyenneté & de l'Immigration) c. Perrier (2000), 11 Imm. L.R. (3d) 122 (T.D.), Rouleau J. concluded that a citizenship applicant's residential focus had been in Canada throughout her time away even though she had spent less than a month in Canada prior to lengthy absences.
[25] The respondent submits that as a stateless person, Canada is the only country to which the respondent could be said to be connected at this time.
[26] The respondent submits that while material possessions in Canada may be indicative of centralized mode of living, they are not determinative.
[27] The respondent submits that she is totally dependent upon her parents for financial support, housing, and all other material goods. The respondent submits that while in Russia, she stayed at a number of different temporary addresses.
[28] The respondent submits that in Ng v.Canada (Minister of Citizenship and Immigration) (2001), 199 F.T.R. 232 (T.D.) at paragraph 10, a student living abroad who was totally dependent on parents was deemed to have centralized his mode of living through his parents' residential status in Canada.
[29] The respondent submits that absence from Canada is less likely to undermine any centrality of Canadian living where the absence is beyond one's control or offers options not reasonably available in Canada, provided the experiences do, or will, provide a benefit to that individual's life as a Canadian. The respondent submits that the Federal Court has granted a considerable amount of deference to absences from Canada for purposes of business or study.
[30] Issue
Did the Citizenship Judge err in approving the respondent's application for citizenship in light of the residency requirements under paragraph 5(1)(c) of the Citizenship Act, supra?
Relevant Statutory Provisions and Regulations
[31] The relevant section of the Citizenship Act, supra states as follows:
| 5. (1) The Minister shall grant citizenship to any person who . . . (c) has been lawfully admitted to Canada for permanent residence, has not ceased since such admission to be a permanent resident pursuant to section 24 of the Immigration Act, and has, within the four years immediately preceding the date of his application, accumulated at least three years of residence in Canada calculated in the following manner: (i) for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and (ii) for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence; . . . |
5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois_: . . . c) a été légalement admise au Canada à titre de résident permanent, n'a pas depuis perdu ce titre en application de l'article 24 de la Loi sur l'immigration, et a, dans les quatre ans qui ont précédé la date de sa demande, résidé au Canada pendant au moins trois ans en tout, la durée de sa résidence étant calculée de la manière suivante: (i) un demi-jour pour chaque jour de résidence au Canada avant son admission à titre de résident permanent, (ii) un jour pour chaque jour de résidence au Canada après son admission à titre de résident permanent; . . . |
[32] The relevant section of the Immigration Act, R.S.C. 1985, c. I-2, states as follows:
| 24. (1) A person ceases to be a permanent resident when (a) that person leaves or remains outside Canada with the intention of abandoning Canada as that person's place of permanent residence; or (b) a removal order has been made against that person and the order is not quashed or its execution is not stayed pursuant to subsection 73(1). (2) Where a permanent resident is outside Canada for more than one hundred and eighty-three days in any one twelve month period, that person shall be deemed to have abandoned Canada as his place of permanent residence unless that person satisfies an immigration officer or an adjudicator, as the case may be, that he did not intend to abandon Canada as his place of permanent residence. |
24. (1) Emportent déchéance du statut de résident permanent: a) le fait de quitter le Canada ou de demeurer à l'étranger avec l'intention de cesser de résider en permanence au Canada; b) toute mesure de renvoi n'ayant pas été annulée ou n'ayant pas fait l'objet d'un sursis d'exécution au titre du paragraphe 73(1). (2) Le résident permanent qui séjourne à l'étranger plus de cent quatre-vingt-trois jours au cours d'une période de douze mois est réputé avoir cessé de résider en permanence au Canada, sauf s'il convainc un agent d'immigration ou un arbitre, selon le cas, qu'il n'avait pas cette intention. |
Analysis and Decision
[33] I propose to apply the standard of review set out in Lam v. Canada (Minister of Citizenship and Immigration), supra by Lutfy J. (as he then was), that is a standard "close to the correctness end of the spectrum."
[34] Issue
Did the Citizenship Judge err in approving the respondent's application for citizenship in light of the residency requirements under paragraph 5(1)(c) of the Citizenship Act, supra?
This Court in Re Koo, supra set out six factors to consider when determining whether an applicant meets the residency requirements of paragraph 5(1)(c) of the Citizenship Act, supra.
[35] The factors and their application in this case are 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."
The respondent became a landed immigrant of Canada on July 17, 1996. She first left Canada on March 17, 1997.
2. "Where are the applicant's immediate family and dependants (and extended family) resident?"
The applicant's father, mother and brothers live in Halifax, Nova Scotia.
3. "Does the pattern of physical presence in Canada indicate a returning home or merely visiting the country?"
The applicant is stateless. Her parents' home at 100 Lincoln Cross, apartment 202, Halifax, Nova Scotia is the only home she has.
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?"
The Citizenship Judge indicated that the applicant was out of the country for 765 days in the relevant time period.
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?"
All of the absences were temporary in nature in order that she could attend university in Russia.
6. "What is the quality of the connection with Canada: is it more substantial than that which exists with any other country?"
The applicant resided in Canada for approximately 8 months before her first departure to attend university in Russia. She returns to Halifax for each vacation. When she returns during her university vacation, she resides with her parents and brother in Halifax. Before first departing for Russia, she attended St. Mary's University to upgrade her English. She plans to return to Canada to practice dentistry when she graduates. She files Canadian income tax returns. She obtains a returning resident permit when she leaves Canada. The Russian university accepted her credentials. She maintains a current health card in Nova Scotia, a social insurance number, Visa card with the Royal Bank of Canada, shopping credit cards at Sears and Zellers, an Air Miles card and a library card. As well, she has nothing of importance or permanence outside of Canada.
[36] I am satisfied based on my assessment of the Re Koo, supra factors that the applicant established a centralized mode of living in Canada in the approximately eight months that she was living in Canada, prior to her first departure. The applicant has established that her quality of connection with Canada is more substantial than with any other country. I am of the view that the periods of absence from Canada, while attending university, can be used to establish the residency requirements. In conclusion, I find that Citizenship Judge Tremaine was correct in finding that the applicant had satisfied the requirements in paragraph 5(1)(c) of the Citizenship Act, supra. The appeal of the applicant is dismissed.
ORDER
[37] IT IS ORDERED that the appeal of the applicant is dismissed.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
September 27, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1994-01
STYLE OF CAUSE: MINISTER OF CITIZENSHIP AND IMMIGRATION
- and -
MAJDAL SADEQ AL TTAIE
PLACE OF HEARING: Halifax, Nova Scotia
DATE OF HEARING: Tuesday, August 13, 2002
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
DATED: Friday, September 27, 2002
APPEARANCES:
Melissa Cameron
FOR APPLICANT
Lee Cohen
FOR RESPONDENT
SOLICITORS OF RECORD:
Department of Justice
Atlantic Regional Office
Suite 1400, Duke Tower
5251 Duke Street
Halifax, Nova Scotia
B3J 1P3
FOR APPLICANT
M. Lee Cohen
P. O. Box 304, Halifax CRO
6690 Second Street
Halifax, Nova Scotia
B3J 2N7
FOR RESPONDENT
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20020927
Docket: T-1994-01
BETWEEN:
MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
MAJDAL SADEQ AL TTAIE
Respondent
REASONS FOR ORDER AND ORDER