Ghosh v. Canada (Minister of Citizenship and
Immigration)
Between
Ashok Ghosh, Applicant, and
The Minister of Citizenship and Immigration, Respondent
The Minister of Citizenship and Immigration, Respondent
[2013] F.C.J. No. 313
2013 FC 282
Docket T-882-12
Federal Court
Toronto, Ontario
Gagné J.
Heard: January 22, 2013.
Judgment: March 18, 2013.
Docket T-882-12
Federal Court
Toronto, Ontario
Gagné J.
Heard: January 22, 2013.
Judgment: March 18, 2013.
(26 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 GAGNÉ J.:-- This is an appeal under section
21 of the Federal Courts Act,
RSC 1985, c F-7 and subsection 14(5) of the Citizenship
Act, RSC 1985, c C-29 [Act], of a decision of Judge
Thanh Hai Ngo [Citizenship Judge], dated March 15, 2012, wherein the
applicant's application for Canadian citizenship was denied on the basis that
he had not met the "residency" requirement under paragraph 5(1)(c) of
the Act. The applicant requests that the decision to refuse him Canadian
citizenship be set aside and the matter referred back to a different Citizenship
Judge for re-determination.
Background
2 The
applicant is a 57 years old citizen of India. He became a permanent resident of
Canada under the Federal Skilled Worker category on March 9, 2004, when he
moved to Canada with his wife and two sons and settled in Toronto, Ontario.
3 In
2007, the applicant was offered employment as a project manager at Cowater
International Inc. [Cowater], a Canadian management consulting firm specialized
in the area of international development. The applicant started working for
Cowater's Ottawa head office on May 1, 2007. His family permanently relocated
to Ottawa in March 2008, where they purchased a house and his children
transferred to local schools. They have lived in Ottawa since that time.
4 While
working for Cowater, the applicant was deployed to overseas project sites for
long periods of time. Shortly after joining Cowater, he was promoted to the
position of Project Director and is currently working as a Senior Project
Director. He alleges that in these successive positions, he was required to be
present at various job sites around the world and travel regularly to countries
such as Bangladesh, Uganda, Rwanda, Nigeria and Bhutan. The applicant's
business trips ranged from two to eight weeks. When not required to work on
foreign projects, the applicant works at Cowater's head office in Ottawa, which
allows him to be with his family.
5 The
applicant alleges that he and his family have their residence in Canada. He
files his Canadian taxes every year and is not established in any country other
than Canada.
6 On
September 10, 2010, the applicant and his family applied for Canadian
citizenship. On October 6, 2011, the applicant's wife was convoked for an
interview, while the applicant was required to complete a residence
questionnaire and was asked to provide supporting evidence of his residence in
Canada during the period of September 2006 to September 2010. The applicant's
case was referred to the citizenship judge due to concerns regarding the
duration of his absence from Canada.
7 The
applicant's application for citizenship was heard on March 6, 2012 and refused
on March 15, 2012. Applying the test of physical presence in Canada adopted by
Justice Muldoon in Pourghasemi (Re), [1993] FCJ no 232, 62 FTR 122 [Pourghasemi], the citizenship judge noted that the applicant's documentary
evidence showed 109 days of absence in 2006 (Uganda), 228 days of absence in
2007 (Uganda), 216 days of absence in 2008 (Uganda, Bangladesh, India and Sri
Lanka), and 165 days of absence in 2010 (Rwanda, India and Bangladesh). He
therefore found that the applicant had failed to accumulate 1,095 days of
physical presence in Canada within the four years immediately preceding the
date of his application and did not meet the residency requirements pursuant to
paragraph 5(1)(c) of the Act.
Relevant Legislation
8 Although
the Act does not define "residence" or "resident", its
subsection 5(1) requires certain period of residence for an applicant to be
granted citizenship.
(1) The Minister shall
grant citizenship to any person who
(a)
makes application for citizenship;
(b)
is eighteen years of age or over;
· (c) is a permanent
resident within the meaning of subsection 2(1) of the Immigration
and Refugee Protection Act, and has, within the four years immediately preceding the date of his or her
application, accumulated at least three years of residence in Canada calculated in the following manner:
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
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;
· (d) has an adequate
knowledge of one of the official languages of Canada;
· (e) has an adequate
knowledge of Canada and of the responsibilities and privileges of citizenship;
and
· (f) is not under a
removal order and is not the subject of a declaration by the Governor in
Council made pursuant to section 20.
* * *
(1) Le ministre
attribue la citoyenneté à toute personne qui, à la fois :
en fait la
demande;
est âgée d'au moins
dix-huit ans;
· c) est un résident permanent au sens du
paragraphe 2(1) de la Loi sur l'immigration et la
protection des réfugiés 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:
un demi-jour pour
chaque jour de résidence au Canada avant son admission à titre de résident
permanent,
un jour pour chaque
jour de résidence au Canada après son admission à titre de résident
permanent;
· d) a une connaissance suffisante de l'une des
langues officielles du Canada;
· e) a une connaissance suffisante du Canada et
des responsabilités et avantages conférés par la citoyenneté;
· f) n'est pas sous le coup d'une mesure de
renvoi et n'est pas visée par une déclaration du gouverneur en conseil faite en
application de l'article 20.
(emphasis added)
9 As
noted by Justine Rennie in Martinez-Caro v Canada
(Citizenship and Immigration), 2011 FC 640, [2011] FCJ
no 881, subsection 5 (1.1) of the Act is useful in considering the definition
of residency. It reads as follow:
· 5. (1.1) Any day during which an applicant
for citizenship resided with the applicant's spouse who at the time was a
Canadian citizen and was employed outside of Canada in or with the Canadian
armed forces or the federal public administration or the public service of a
province, otherwise than as a locally engaged person, shall be treated as
equivalent to one day of residence in Canada for the purposes of paragraph (1)(c) and subsection 11(1).
* * *
(1.1) Est assimilé à un
jour de résidence au Canada pour l'application de l'alinéa (1)c) et du paragraphe 11(1) tout jour pendant
lequel l'auteur d'une demande de citoyenneté a résidé avec son époux ou
conjoint de fait alors que celui-ci était citoyen et était, sans avoir été
engagé sur place, au service, à l'étranger, des forces armées canadiennes ou de
l'administration publique fédérale ou de celle d'une province.
10 Given
that paragraph 5(1)(c) of the Act explicitly refers to the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA], and having in mind the "proximity" between the Act
and the IRPA, it would be useful to consider the wording of section 28 of the
IRPA which defines more specifically the residency obligation for permanent
residents:
· 28. (1) A permanent resident must comply with
a residency obligation with
respect to every five-year period.
The following
provisions govern the residency obligation under subsection (1):
· (a) a permanent
resident complies with the residency obligation with respect to a five-year period if, on each of a total of at least 730 days in
that five-year period, they are
physically present in
Canada,
outside Canada
accompanying a Canadian citizen who is their spouse or common-law partner or,
in the case of a child, their parent,
· (iii) outside Canada employed on a full-time
basis by a Canadian business or in the federal public
administration or the public service of a province,
outside Canada
accompanying a permanent resident who is their spouse or common-law partner or,
in the case of a child, their parent and who is employed on a full-time basis
by a Canadian business or in the federal public administration or the public
service of a province, or
referred to in
regulations providing for other means of compliance;
· (b) it is sufficient
for a permanent resident to demonstrate at examination
if they have been a
permanent resident for less than five years, that they will be able to meet the
residency obligation in respect of the five-year period immediately after they
became a permanent resident;
if they have been a
permanent resident for five years or more, that they have met the residency
obligation in respect of the five-year period immediately before the
examination; and
· (c) a determination
by an officer that humanitarian and compassionate considerations relating to a
permanent resident, taking into account the best interests of a child directly
affected by the determination, justify the retention of permanent resident
status overcomes any breach of the residency obligation prior to the
determination.
* * *
· 28. (1) L'obligation
de résidence est applicable à chaque période
quinquennale.
Les dispositions
suivantes régissent l'obligation de résidence :
· a) le résident permanent se conforme à l'obligation dès lors que, pour au moins 730 jours pendant une période quinquennale, selon le
cas :
il est effectivement présent au Canada,
il accompagne, hors du
Canada, un citoyen canadien qui est son époux ou conjoint de fait ou, dans le
cas d'un enfant, l'un de ses parents,
il travaille, hors du
Canada, à temps plein pour une entreprise canadienne ou
pour l'administration publique fédérale ou provinciale,
il accompagne, hors du
Canada, un résident permanent qui est son époux ou conjoint de fait ou, dans le
cas d'un enfant, l'un de ses parents, et qui travaille à temps plein pour une
entreprise canadienne ou pour l'administration publique fédérale ou
provinciale,
il se conforme au mode
d'exécution prévu par règlement;
· b) il suffit au résident permanent de
prouver, lors du contrôle, qu'il se conformera à l'obligation pour la période
quinquennale suivant l'acquisition de son statut, s'il est résident permanent
depuis moins de cinq ans, et, dans le cas contraire, qu'il s'y est conformé
pour la période quinquennale précédant le contrôle;
· c) le constat par l'agent que des
circonstances d'ordre humanitaire relatives au résident permanent -- compte
tenu de l'intérêt supérieur de l'enfant directement touché -- justifient le
maintien du statut rend inopposable l'inobservation de l'obligation précédant
le contrôle.
· (emphasis added)
Issue and Standard of Review
11 The
only issue raised in this case is whether the citizenship judge erred by
applying the physical presence test in refusing the applicant's citizenship
application. In other words, did the citizenship judge properly interpret
paragraph 5(1)(c) of the Act?
12 The
jurisprudence of this Court has recognized three different approaches to how
the word residence as found in paragraph 5(1)(c) of the Act is to be
interpreted. One approach, the one adopted by the citizenship judge in this
case, is to settle for a quantitative computation of the number of days an
applicant has been physically present in Canada (Pourghasemi, above). Two less restrictive approaches focus on whether the
permanent resident has "centralized his mode of living in Canada"
(Papadogiorgakis (Re), [1978] 2 FC 208 at para 17, 88 DLR (3d) 243 (TD)), or
whether the permanent resident "regularly, normally or customarily
lives" in Canada (Koo (Re) (FCTD), [1992] FCJ 1107, [1993] 1 FC 286 [Re
Koo]).
13 In
Re Koo, above, at para 10, Justice Reed sets out six non-exhaustive
factors which might be of assistance in determining whether the residence
requirement is met:
· The conclusion I draw from the jurisprudence is that the test is
whether it can be said that Canada is the place where the applicant
"regularly, normally or customarily lives". Another formulation of
the same test is whether Canada is the country in which he or she has
centralized his or her mode of existence. Questions that can be asked which
assist in such a determination are:
was the individual
physically present in Canada for a long period prior to recent absences which
occurred immediately before the application for citizenship?
where are the
applicant's immediate family and dependents (and extended family) resident?
does the pattern of
physical presence in Canada indicate a returning home or merely visiting the
country?
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?
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?
what is the quality of
the connection with Canada: is it more substantial than that which exists with
any other country?
14 As
per Lam v Canada (Minister of Citizenship and Immigration), [1999] FCJ 410 at
para 14, [1999] FCJ no 410, it is open to the citizenship judge to adopt any
one of these schools of thought as long as the chosen test is applied properly.
However, part of the jurisprudence has departed from this view, considering
that only one of the tests is the correct one (see for example Burch v Canada (Minister of Citizenship and Immigration), 2011 FC 1389 at para 31, [2011] FCJ no 1695; El Ocla v Canada
(Minister of Citizenship and Immigration), 2011 FC 533 at paras 10-18, [2011]
FCJ no 667 [El Ocla]; Ghaedi v Canada (Minister of
Citizenship and Immigration), 2011 FC 85 at para 6,
[2011] FCJ no 94; Martinez-Caro v Canada (Minister of Citizenship and
Immigration), 2011 FC 640 at para 26, [2011] FCJ no 881).
15 Relying
on this latter line of jurisprudence, the applicant submits that the standard
of review to be applied to the citizenship judge's selection of the test for
assessing residency under paragraph 5(1)(c) of the Act is correctness, while
the application of the selected residency test to the evidence should be
reviewed against the standard of reasonableness. The respondent agrees that the
question of whether the period of required residency can be determined solely
on the basis of an individual's physical presence in Canada for a minimum
period of 1,095 days (or three years out of four) is a question of law to be
reviewed on the standard of correctness.
16 In
El Ocla, above, at para 14, Justice Barnes stated that "the idea that
there are two, or perhaps three, distinct tests for residency to be found in ss
5(1)(c) of the Citizenship Act
carries with it the implicit adoption of a correctness standard. This is
because it acknowledges that there are limited options available to a
citizenship judge and that other reasonable interpretations are
unavailable." Of particular importance to this case, Justice Barnes held
that citizenship judges' decisions which are solely based on the physical
presence test for residency, to the exclusion of any qualitative analysis
following the Re Koo factors,
should be accorded less deference and should be reviewed against the standard
of correctness.
17 Referring
to a number of cases, including Canada (Minister of
Citizenship and Immigration) v Takla, 2009 FC 1120,
[2009] FCJ no 1371, which stand in favour of reviewing a citizenship judge's
selection of the residency test against the standard of reasonableness, Justice
Barnes stated:
· [11] ...Indeed, in most of this Court's jurisprudence, appeals of
this nature have involved challenges to a citizenship judge's application of
the predominant qualitative test for residency described in Re Koo, above. In other words, the concern
was with the application of evidence to the Re Koo factors.
· [12] The above authorities and decisions like them are to my mind
distinguishable from cases such as the one at bar which involve a citizenship
judge's selection of the physical presence test for residency to the exclusion
of the Re Koo factors. The issue
of whether this is the proper test for residency under ss 5(1)(c) of the Citizenship Act is a threshold question of law
that can and should be isolated from its factual surroundings...
18 In
view of the fact that, in the case before me, the citizenship judge decided not
to give any consideration to the applicant's circumstances or the quality of
his establishment in Canada, and that the respondent did not seriously question
this position, I will apply the standard of correctness to the question raised
by the applicant.
19 For
the reasons that follow, I have come to the conclusion that the intervention of
this Court is not justified as the impugned decision and the citizenship
judge's interpretation of paragraph 5(1)(c) of the Act are well founded in law.
Analysis
20 Equally
diverging lines of case law have developed regarding the proper test to be
applied to the residency requirement of paragraph 5(1)(c) of the Act. This
diversity necessarily comes from the lack of definition of the term
"residence" or "residé" in the French version of paragraph
5(1)(c) of the Act. Should it be interpreted as meaning "physically
present in Canada" or "present au Canada" as used by the
legislator in paragraph 28(2)(a)(i) of the IRPA or should it receive a broader
interpretation as it did in Papadogiorgakis and Re Koo?
21 When
one compares the wording of paragraphs 5(1)(c) of the Act and 28(2)(a) of the
IRPA, it could be tempting to draw the conclusion that if the legislator used
two different expressions ("residence" and "physically present
in Canada") in two related pieces of legislation, they must be meant to
address different situations. However, read in their entirety, the conditions
set forth in section 28 of the IRPA to maintain a permanent residence and the
conditions set fort in section 5 of the Act for a permanent resident to obtain
Canadian citizenship, along with their respective exceptions (found in
paragraphs 28(2)(a)(ii) to (v) of the IRPA and paragraph 5(1.1) of the Act),
lead to an opposite finding.
22 In
order to maintain permanent resident status, one has to be physically present
in Canada for two years during the five year reference period. That person will
nevertheless maintain his or her permanent residency if he or she i) is
accompanying a Canadian citizen spouse outside Canada, ii) is outside Canada
employed on a full-time basis by a Canadian business or the federal or
provincial public administration or iii) is accompanying a permanent resident
spouse employed on a full-time basis by a Canadian business or the federal or
provincial public administration. The applicant's situation is specifically
covered by paragraph 28(2)(a)(iii) of the IRPA and he would maintain his
permanent residency no matter how many days in a given reference period he
spends abroad working for a Canadian company.
[Editor's note: Text
in brackets is struck out in the original.]
23 In
order to obtain Canadian citizenship, a permanent resident has to reside in
Canada for three years during the [4] four year reference period. However, he or
she will be deemed to reside in Canada if he or she resides outside Canada with
a Canadian citizen spouse employed with the Canadian armed forces or with the
public service of Canada or one of the Canadian Provinces. Being employed by a
Canadian private company or residing outside Canada with a Canadian citizen
working for a Canadian private company does not qualify as residing in Canada
for the purpose of the Act.
24 Although
it could have been said in clearer words, I am of the opinion that residing in
Canada for the purpose of paragraph 5(1)(c) of the Act requires physical
presence in Canada. To interpret the term "residence" to mean
anything else than physical presence in Canada is not only likely to lead to
arbitrary decisions by the Minister (when paragraph 5(1) of the Act does not
grant a great deal of discretion to the Minister), but it also renders the
conditions to be met to obtain Canadian citizenship less strict than the ones
that need to be met to maintain permanent residence, just as it renders
paragraph 5 (1.1) of the Act useless.
25 In
my mind, the above analysis advocates in favour of the thesis that has
considered the strict quantitative test to be the correct one (Martinez-Caro above; Sinanan
v Canada (Minister of Citizenship and Immigration),
2011 FC 1347, [2011] FCJ no 1646; Al Khoury v Minister of Citizenship and
Immigration, 2012 FC 536 at para 27, [2012] FCJ no 534; Canada
(Minister of Citizenship and Immigration) v Dabbous,
2012 FC 1359; [2012] FCJ no 1490).
26 For
these reasons, the appeal will be dismissed.
JUDGMENT
THIS COURT'S JUDGMENT is that:
The applicant's appeal
is dismissed, without costs.
GAGNÉ J.
