Federal Court Decisions

 

Date: 20080618

Docket: T-1892-07

Citation: 2008 FC 757

Ottawa, Ontario, June 18th 2008

PRESENT:     The Honourable Orville Frenette

 

 

BETWEEN:

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Applicant

and

 

HANI HUSSEIN

Respondent

 

 

REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               The Minister of Citizenship and Immigration (the “Minister”) seeks to set aside the decision of a Citizenship Judge on September 13, 2007 to grant Mr. Hussein (the “Applicant”) citizenship despite his falling short of the residency requirements set out in paragraph 5(1)(c) of the Citizenship Act, R.S.C. 1985, c.C-29 (the “Act”).

 

[2]               Mr. Hussein was born in Jordan and became a permanent resident of Canada on June 28, 2003. Before coming to Canada, he had worked as an accountant at the University of Jordan. At the time of his application for Canadian citizenship on October 7, 2006, he had been physically present in Canada for 984 days and absent for 212. The absences were a trip to Jordan from June 10 to September 17, 2005 to look after his ailing mother and from May 29 to September 19, 2006 to visit family and to work in Oman. On June 4, 2006 Mr. Hussein accepted a job offer to work in Muscat, Oman for a 2-year contract, terminating on June 28, 2008. These absences left him a total of 111 days short of the 1095 days of physical presence required and 212 days absent from the country in the 1460 days preceding his application.

 

[3]               Mr. Hussein’s wife and two young children arrived with him in 2003 and also applied for (and were granted) citizenship. They did not accompany him on his earlier travels, but after their application for citizenship (around November 2006) they joined him in Oman, where they since have all resided in a rented house.

 

I. The decision

 

[4]               The Citizenship Judge, in a ¾ page hand-written decision, without analysis of the evidence, decided to grant citizenship by crediting the days Mr. Hussein was physically out of Canada toward his residency requirement; he accepted that he had to leave to obtain adequate employment and was saving money to open a business Canada. He also noted the relative total numbers of absence and presence (i.e. 212 vs. 984).

 

II. The issues

 

[5]               The Applicant urges the Court to decide on four issues, but there is really only one issue in this case: “Did the Citizenship Judge err in granting citizenship to Mr. Hussein, when he was 111 days short of the requirement?”

 

III. The applicable legislation

 

[6]               The provisions of section 5 of the Act are as follows:

 

 

IV. The nature of the recourse from a Citizenship Judge

 

[7]               Before discussing the standard of review, one must consider that citizenship “appeals” are not ordinary appeals nor trials de novo; they are governed by s. 18(1)(4) of the Federal Courts Act (R.S., 1985, c. F-7 ).

 

[8]               Therefore, to set aside a decision of the Citizenship Court, the Federal Court must find a reviewable error (Canada (MCI) v. Tovbin (2000), 190 F.T.R. 102, 10 Imm. L.R. (3d) 306 (FCTD). As for the standard of review, relating to the period of time required, the interpretation of s. 5 gave rise to various interpretations of the word “residing” which was not defined in the Citizenship Act (Canada (MCI) v. Chen, 2003 FCT 192, 228 F.T.R. 111; Goudimenko v. Canada (MCI), 2002 FCT 447, 113 A.C.W.S. (3d) 766 (Goudimenko)).

 

[9]               Case law reveals that the Federal Court has interpreted the word “residency” by invoking tests such as “the centralised mode of existence test” or the “quality of attachment test” but the law stipulates that the basic test is the physical presence in Canada at the appropriate time (Canada (MCI) v. Adler, 2002 FCT 227, 23 Imm. L.R. (3d) 241).

 

[10]           The Act is very specific in that the basic test is the physical presence in Canada and it is only when this test fails, that the secondary tests created by the jurisprudence can be invoked.

 

V. The Standard of review

 

[11]           It has been decided that the standard of review on an appeal of this nature invoked here is correctness insofar as it relates to the applications of the residency statutory test set out in para. 5(1)(c) of the Act, i.e. was there residency in Canada? (Lam v. Canada (MCI) (1999), 164 F.T.R. 177, 87 A.C.W.S. (3d) 432; Zhang v. Canada (MCI), 2001 FCT 501, 105 A.C.W.S. (3d) 1017 (T.D.) at para. 7.

 

[12]            In Goudimenko, above, Justice Layden-Stevenson suggested the existence of two stages required with respect to the residency requirements and the relationship between these stages. At the first stage, the Court determines if residency in Canada was established. If not, the matter ends there. If it is established there was residency, the required numbers of years or days and the various tests to apply as whether absences can be deemed residence must be decided.

 

[13]           The question as to whether the residency requirement has been met involves a mixed question of law and fact; it is to be decided according to the standard of reasonableness (Farshchi v. Canada (MCI), 2007 FC 487, 157 A.C.W.S. (3d) 701).

 

[14]           However, it is recognized that some deference is granted to citizenship decisions by nature of the special degree of knowledge and experience of citizenship judges (Chen v. Canada (MCI), 2004 FC 1693 at para. 5, 135 A.C.W.S. (3d) 773; Morales v. Canada (MCI), 2005 FC 778, 45 Imm. L.R. (3d) 284).

 

[15]           My colleague Justice Edmond P. Blanchard recently noted the effect of the Supreme Court’s decision in Dunsmuir v. New Brunswick, 2008 SCC 9, 164 A.C.W.S. (3d) 727, on the review of the decision of a citizenship judge. He came to the conclusion that the appropriate standard is reasonableness and I concur in that finding: Zhang v. Canada (Minister of Citizenship and Immigration), 2008 FC 483, [2008] F.C.J. No. 603 (QL).

 

[16]           That means that, as noted by Justice James O’Reilly in Ishfaq v. Canada (MCI), 2008 FC 477, [2008] F.C.J. No. 598:

4   I can overturn the judge's decision only if I find it was unreasonable, in the sense that it falls outside the "range of possible, acceptable outcomes which are defensible in respect of the facts and law": Dunsmuir v. New Brunswick, [2008] S.C.J. No. 9, 2008 SCC 9, at para. 47.

 

VI. Analysis

 

[17]           The Applicant wishes me to find that the Citizenship Judge erred either in applying the wrong test or by erroneously crediting the respondent with establishment in Canada throughout his absences. For the former allegation, he states that it is unclear which approach the Citizenship Judge took and that if he invoked the centralized mode of living test set out in Koo Re, [1993] 1 F.C. 286, [1992] F.C.J. No. 1107 (QL) (Koo), it was misinterpreted.

 

[18]           The respondent asserts that there was sufficient evidence before the Judge to support his finding based on the “centralized mode of living” assessment, given the continuous residence of his wife and sons and that the decision to credit him with residence was reasonable. The respondent also notes that his wife and children are being deprived of their status, despite having qualified on the basis of the strict physical presence test. He claims their presence or absence from Canada after their application for citizenship is immaterial.

 

[19]           The Applicant relies upon the decision in Xu v. Canada (MCI), 2005 FC 700, 139 A.C.W.S. (3d) 433, where Justice de Montigny set aside a decision refusing citizenship in favour of an Applicant who had been in Canada for 571 days out of 1095. However, the evidence showed she travelled to China with her husband who was CEO of a company in Canada which had a joint venture with a Chinese company. They maintained a residence in Canada and has fixed roots here.

 

[20]           The first test, as has been noted many times by this Court, is quantitative: the numeric assessment of days the person was physically resident in Canada. The second is qualitative: the deemed residence on the basis of a centralized mode of living. The factors which may be assessed under the second test to determine whether to deem residence despite physical absence, as set out in Koo, 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?

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?

 

[21]           For the instant case, it is unfortunate that the Citizenship Judge failed to individually analyse each of the Koo factors. He did not refer to any test. There is no analysis of the evidence and the reasons given are insufficient to constitute a thorough appreciation of the law and the facts.

 

[22]           The Citizenship Judge failed to explain adequate reasons for failure to respect the requirement of the s. 5(1) c) of the Act by the Respondent. He did not analyse or comment upon the lengthy time the Respondent spent outside Canada between 2003 and 2006. Since June 4, 2006, he accepted employment for a period of two years in Oman. His wife and children joined him in November 2006 and they have no residence in Canada since then.

 

[23]           I realise that the judge could take into account, as one of the Koo factors, the employment and residence outside the country and explain why it was not necessarily a negative factor.

 

[24]           In the Leung case, the Court rejected an appeal by a citizenship Applicant who had a shortfall of physical residence because of the employment outside Canada and the Court explained why working outside Canada can not always be a valid reason for deemed residence. An Applicant for citizenship does not have the same freedom as a Canadian citizen because of the provisions of s. 5(1) of the Act (see Leung (Re) (1991), 42 F.T.R 149 (FCTD), 13 Imm. L.R. (2d) 93).

 

[25]           In another case where the facts resemble the ones in the present one, Justice Kelen decided that employment in the U.S., limiting Mr. Barker to a physical presence in Canada of 892 out of 1095 days during a four-year period, notwithstanding a long desire to return to Canada, did not satisfy the residency requirement of the Act (Canada (MCI) v. Barker, 2003 FCT 226, 229 F.T.R. 154).

 

[26]           Justice Kelen reasoned that Mr. Barker had not centralized his mode of existence in Canada after his move to the U.S. Justice Kelen also decided that the Applicant’s intention to return to Canada after 2004 should not have been considered by the Citizenship Judge (para.19)

 

[27]           Therefore, considering the above analysis, I must conclude that the Citizenship Judge committed a reviewable error which compels me to annul the decision he rendered in the present case.

 

 

JUDGMENT

THIS COURT ORDERS AND ADJUDGES that:

1.                  The appeal be granted; and

2.                  The decision of the Citizenship Judge be quashed.

 

 

"Orville Frenette"

 

 

 

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          T-1892-07

 

STYLE OF CAUSE:                          MCI

                                                            v.

                                                            Hussein

 

 

 

 

PLACE OF HEARING:                    Toronto, Ontario

 

DATE OF HEARING:                      June 10, 2008

 

REASONS FOR JUDGMENT

AND JUDGMENT BY:                    FRENETTE D.J.

 

DATED:                                             June 18^th 2008

 

 

 

APPEARANCES:

 

Tamrat Gebeyehu	FOR THE APPLICANT
Zahra Khedri	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

John H. Sims, Deputy Attorney General of Canada	FOR THE APPLICANT
Zahra Khedri Barrister & Solicitor Kerr & Associates 658 Danforth Avenue, Suite 309 Toronto, Ontario  M4J 5B9	FOR THE RESPONDENT