Date: 20010703
Court File No.: T-203-00
Neutral Citation: 2001 FCT 739
Ottawa, Ontario, this 3rd day of July, 2001
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
SIMONA LINDE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Nature of Proceeding
(1) This is an appeal by Simona Linde to have the decision of the Citizenship Judge R. Roberti, dated January 11, 2000, set aside. The Citizenship Judge refused the applicant's application for citizenship since she did not satisfy the residency requirements set out in paragraph 5(1)(c) of the Citizenship Act. The Citizenship Judge also considered and decided against making an affirmative recommendation under subsection 5(4) of the Act, finding that there was no evidence of any health disability which prevented the applicant from residing in Canada, or any special or unusual hardship, or services of an exceptional value to Canada.
(2) It is useful the reproduce the pertinent provisions of the Citizenship Act:
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 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
[...]
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,
[...]
(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.
(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.
Facts
(3) The applicant, a professional engineer originally from Romania, came to Canada as a landed immigrant on April 29th, 1995. Her husband, Mr. Fred Linde, is a Canadian citizen employed with Atomic Energy of Canada Inc. since September 1990. Mr. Linde's work in supervising the constuction of nuclear power.plants in foreign countries, requires him to be oustside of Canada for prolonged periods of time.
(4) The applicant and her husband have been in a permanent relationship since 1992 and have one child, Michael, a Canadian citizen, born on August 4, 1994.
(5) Within three weeks of her landing, the applicant returned to Romania for prolonged periods to be with her husband while he was on foreign assignment.
(6) On September 16, 1997, while still living in Romania, the applicant and her husband bought a townhouse condominium in Mississauga, Ontario.
(7) During the time that the applicant resided with her husband outside Canada, the applicant maintained a valid Ontario Driver's Licence, a Canadian bank account and consistently renewed her resident permit. The applicant also expects to complete her licensing requirements with the Association of Professional Engineers by December, 2000.
(8) On December 20, 1997, the applicant and Mr. Linde were married in Mississauga, Ontario.
(9) On October 12, 1998, the applicant made an application for Canadian citizenship at the Canadian embassy in Bucharest. During the three and a half years preceding her application for citizenship, she was only physically present in Canada for 85 days. She was therefore, 1,010 days short of the 1,095 day requirement pursuant to paragraph 5(1)(c) of the Act. In her application, the applicant listed her mailing address as her spouse's employer's address in Mississauga, Ontario and her home address as an address in Romania.
(10) On or about November 25, 1999, the applicant appeared before Citizenship Judge R. Roberti for her interview. The applicant was not represented by counsel at the hearing. During the interview, the judge asked the applicant about the residency requirements for Canadian citizenship and she explained to him that she could not fulfil the minimum residency requirements because she had to accompany her husband on his foreign assignments.
(11) In November, 1999, the applicant and her husband returned to Canada and have since been residing in Mississauga, Ontario..
(12) On January 11, 2000, the Citizenship Judge refused the applicant's application for Canadian citizenship. The Citizenship Judge also considered and decided against making an affirmative recommendation under subsection 5(4) of the Act.
Citizenship Judge's decision
(13) In dismissing the applicant's application for Canadian citizenship, the Citizenship Judge found that the applicant met all the requirements of the Act with the exception of paragraph 5(1)(c). The Citizenship Judge stated: "In my opinion you have not spent sufficient time in Canada to "Canadianize" yourself and also did not establish a home in Canada until 1997." In conclusion, the Citizenship Judge wrote: "Pursuant to the provisions of subsection 14(3) of the Citizenship Act, this letter constitutes formal notice of my non-approval of your application. I have considered and decided against making an affirmative recommendation under subsection 5(4) of the Act, especially since there was no evidence of any health disability which prevented you from residing in Canada, or any special or unusual hardship, or services of an exceptional value to Canada."
Issues
(14) (1) Did the Citizenship Judge err in finding that the applicant did not satisfy the residence requirement pursuant to paragraph 5(1)(c) of the Act?
(2) Did the Citizenship Judge err in the exercise of his discretion pursuant to subsections 5(4) and 15(1) of the Act?
Standard of Review
(15) In Lam v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 410, online; QL at paragraphs 32-33, Lutfy J., as he then was, indicated that the standard of review for decisions by a citizenship judge pursuant to paragraph 5(1)(c) of the Citizenship Act should be close to the correctness end of the spectrum, with some deference owed to the special knowledge and experience of citizenship judges.
In short, even though the objective factors might dictate more deference to the decisions of citizenship judges, this is neither the time nor the environment in which to depart radically from the current standard of review.
Justice and fairness, both for the citizenship applicants and the Minister, require some continuity with respect to the standard of review while the current Act is still in force and despite the end of the de novo trials. The appropriate standard, in these circumstances, is one close to the correctness end of the spectrum. 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.
Analysis
(16) The history of the jurisprudence of this Court in dealing with citizenship appeals with regards to residence requirements, may be perceived as falling into two or more classifications. Mr. Justice MacKay in Singh v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 786 online: QL at paragraph 10 describes these classifications, succinctly, as follows:
...One of those treats residence under the Act, which is not defined by the statute, as virtually meaning physical presence, so that counting of days of physical presence in Canada has considerable significance. Another, based upon the decision of Mr. Justice Thurlow in Re Papadogiorgakis [1978] 2 F.C. 208 (T.D.) recognizes "residence" as the equivalent of having centred one's life in a place, to which one habitually returns, and once that is established in Canada the days of absence from the country, while not unimportant, do not, in themselves, have significance for determining residence, unless absence indicates the intent to abandon a residence earlier established in Canada.
(17) Madam Justice Reed in Re Koo, [1993] 1 F.C. 286 (T.D.) listed those factors which she felt would point to sufficient attachment to Canada to justify the granting of citizenship, even if the periods of absence exceed the statutory maximum. The Re Koo reasons is at times referred to as the third classification of jurisprudence by members of this Court.
(18) In Lam, supra, at paragraph 14, Lutfy J., as he then was, suggests that it is open to the Citizenship Judge to adopt either one of the conflicting classifications of jurisprudence, and if the facts of the case were properly applied to the principles of the chosen approach, the decision of the Citizenship Judge would not be wrong. His Lordship stated in part at paragraph 33.
...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.
1. Did the Citizenship Judge err in finding that the applicant did not satisfy the residence requirement pursuant to paragraph 5(1)(c) of the Act?
(19) In the case at bar, the Citizenship Judge opted for the "canadianization" test set out in Re: Pourghasemi,(1993), 19 Imm. L.R. (2nd) 259 (F.C.T.D.). The applicant contends that the Citizenship Judge made an error in choosing this test, however, the applicant does not allege any error in the way the Citizenship Judge applied the test. As discussed in the above-noted jurisprudence, a Citizenship Judge is free to adopt any one of the conflicting classification of jurisprudence and a reviewing court will not intervene as long as the judge properly applies the facts of the case to the principles of the chosen approach. In my opinion, the Citizenship Judge did not err in applying the test to the facts. In his reasons, he noted that the applicant returned to Romania three weeks after landing in Canada to be with her child and future husband. He stated that in the subsequent three and a half years the applicant visited Canada only 5 times for a total presence of 85 days. The Citizenship Judge went on to conclude that the applicant had not spent sufficient time in Canada to "Canadianize" herself, and did not establish a home in Canada until 1997. It is my view that such a finding is open to the Citizenship Judge in the application of the Re Pourghasemi test on the facts of this case
2. Did the Citizenship Judge err in the exercise of his discretion pursuant to subsections 5(4) and 15(1) of the Act?
(20) The applicant argues that the Citizenship Judge erred in the exercise of his discretion, in that he ignored or failed to give due weight to evidence of special or unusual hardship in the applicant's case, failed to inquire into the special circumstances of the applicant's case at her citizenship hearing, and failed to exercise his discretion in accordance with the requirements of principles of fairness, particularly, since she was not represented by counsel at her interview.
(21) The onus is on the applicant to satisfy the Citizenship Judge that he should exercise his discretion under subsection 15(1) of the Act. In Maharatnam v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 405, online: QL, at paragraph 5, Gibson J. states:
I am satisfied that the onus is on the applicant for Canadian citizenship to satisfy a Citizenship Judge that he or she fulfills the requirements of the Act or warrants an exercise of discretion by the Citizenship Judge, pursuant to subsection 15(1).
(22) In Re: Khat, [1991] F.C.J. No. 949, online: QL, p. 2, Strayer J., as he then was, stated that a discretionary decision was not subject to appeal unless the Citizenship Judge did not take all the relevant factors into consideration.
Subsection 14(2) provides, however, that as a precondition to making a decision under that subsection, the citizenship judge must consider whether or not to make a recommendation under subsection 15(1). While it is not for this Court, sitting on appeal, to review the conclusion of the citizenship judge as to whether a recommendation should be made, in a proper case it may be open to this Court to refer the matter back to the citizenship judge if this Court is not satisfied that the relevant factors have been taken into account in the exercise of that discretion....
(23) In Akan v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 991, online: QL, at paragraph 11, Pelletier J., stated:
The applicant also asks for the Citizenship Court Judge to be directed to make a recommendation for citizenship to the Minister pursuant to s. 15(1) of the Act on the basis of hardship as provided in s. 5(4) of the Act. The power to make such a recommendation is purely discretionary, and absent some improper motive, I am not prepared to interfere with the Citizenship Court Judge's exercise of her discretion.
The applicant submits that the Citizenship Judge failed to give due weight to evidence of special or unusual hardship.
(24) I am satisfied that the Citizenship Judge in this case did indeed take into account the relevant factors in the exercise of his discretion pursuant to subsection 15(1) of the Act. The applicant has not shown that the Citizenship Judge ignored any evidence before him, or erred in any way in determining that there was no unusual hardship which would result under subsection 5(4) of the Act. The only evidence before the Citizenship Judge is reflected in the applicant's affidavit alleging "irreparable harm" to her family if they split up during the prolonged period while her husband was working in Romania. I agree with the respondent's contention that the applicant's husband's choice to work in Romania was his own and that his choice does not constitute special or unusual hardship to the applicant, as contemplated by the Act. The issue of family separation was considered in Re: Chehade, [1994] F.C.J. No. 1461, online: QL. The facts in that case were similar to the case at bar. The appellant had to work abroad to support his family. Mr. Justice Teitelbaum at paragraph 12 stated:
I understand the Appellant's dilemma. On the one hand he must work to earn funds to support his family and this in the United Arab Emirates and at the same time to try to "Canadianize" himself to obtain his citizenship. It is a problem but Canadian Citizenship, as Mr. Justice Muldoon states "is precious" and the Appellant will simply have to make a greater effort.
In the case before me, the applicant chose to follow her husband abroad. She could have chosen to remain in Canada with her child and thereby meet the residency requirements.
(25) I find no reviewable error in the manner in which the Citizenship Judge exercised his discretion under subsection 15(1) prior to making a decision under subsection 14(2) of the Act.
(26) For the above reasons the appeal by Simona Linde to have the decision of the Citizenship Judge R. Roberti dated January 11, 2000 set aside will be dismissed.
ORDER
THIS COURT ORDERS that:
1. The appeal by Simona Linde to have the decision of the Citizenship Judge R. Roberti, dated January 11, 2000, set aside is dismissed.
"Edmond P. Blanchard"
Judge