Date: 20041112
Docket: T-583-04
Citation: 2004 FC 1594
OTTAWA, ONTARIO, NOVEMBER 12, 2004
PRESENT: THE HONOURABLE MADAM JUSTICE MACTAVISH
BETWEEN:
BERIT MARGARETA GUNNARSSON
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Berit Gunnarsson appeals from the decision of a Citizenship Judge refusing her application for citizenship. Mrs. Gunnarsson's application was refused because she did not meet the residency requirement set out in paragraph 5(1)(c) of the Citizenship Act. She asserts that the Citizenship Judge failed to consider and to give appropriate weight to the degree to which she had centralized her life in Canada.
[2] This appeal was heard at the same time as appeals in cases T-581-04 and T-582-04, which relate to Mrs. Gunnarsson's husband and son.
Facts
[3] Mrs. Gunnarsson is a 58-year-old Swedish citizen. Her husband is currently a senior executive with the Bata shoe company. Mr. Gunnarsson began his career with Bata in Sweden, however in 1980, the company transferred him to France. In 1982, he was transferred again, this time to Bata headquarters in Canada.
[4] Mrs. Gunnarsson came to Canada with her husband and two sons in 1982. A year later, she was granted permanent resident status. It should be noted, however, that a number of members of Mrs. Gunnarsson's extended family still reside in Sweden.
[5] When the family relocated to Canada, they sold their home in Sweden, and purchased a home near Toronto. They subsequently sold this house, and purchased another home in Willowdale, which they own to this day. In 1986, they also acquired a cottage in the Muskokas, where they spent their summer vacations.
[6] Between 1982 and 1992, Mrs. Gunnarsson and her husband raised their family in the Toronto area. The family made many friends in this country, and became fully integrated into their community. Mrs. Gunnarsson pursued her hobby as a potter, and became a member of a pottery club in the Toronto area. Mrs. Gunnarsson has continued to maintain her membership in the pottery club, which allows her to attend workshops and maintain contact with friends when she returns to Canada.
[7] In 1992, Bata again transferred Mr. Gunnarsson, this time to Thailand. Mrs. Gunnarsson accompanied her husband and Carl Frederik, one of her sons, to the Far East. Mrs. Gunnarsson 's other son, Magnus, stayed behind in Canada. Carl Frederik has since returned to Canada, and is now a Canadian citizen. Magnus is the appellant in the T-581-04 appeal.
[8] The Gunnarssons spent six years living in Thailand. After Thailand, the couple moved to the Czech Republic. This was followed by a posting to South Africa. In 2001, Mr. Gunnarsson was promoted, becoming the President of Bata's European operations. This required a move to Paris, which is where Mrs. Gunnarsson and her husband still reside today.
[9] While living overseas, Mrs. Gunnarsson has accompanied her husband to many official ceremonies and functions. According to Mrs. Gunnarsson, in so doing, she felt that she was acting as a representative of both Bata and Canada.
[10] In the 12 years that they have been posted abroad, Mrs. Gunnarsson and her husband have lived in rented accommodations. They have rented out their Willowdale home, storing their possessions in Mississauga. Mrs. Gunnarsson spends approximately two to three months a year in Canada, primarily at the family's cottage.
[11] The family has recently spent approximately $40,000 on improvements to the cottage in anticipation of being able to spend more time there when Mr. Gunnarsson retires from Bata, which he expects to do in the winter of 2005.
Requirements for Citizenship
[12] The Citizenship Act requires that to be eligible for citizenship, an applicant must be a permanent resident, and must accumulate three years of residence in Canada in the four years immediately preceding the application. The Act also establishes a formula to be used in calculating the time spent in Canada by an applicant.
The Citizenship Judge's Decision
[13] In reviewing the facts of this case, the Citizenship Judge noted that Mrs. Gunnarsson had been absent from Canada for 1033 days in the preceding four years, and had only been physically present in Canada for 427 days in that period.
[14] The Citizenship Judge observed that in Re Koo, [1992] F.C.J. No. 1107, Justice Reed held that physical presence in Canada was not required in order to be able to satisfy the residency test set out in the Citizenship Act. Rather, the test should be formulated as whether the applicant 'regularly, ordinarily or customarily lives' in Canada. Put another way, the question is whether the applicant has centralized his or her mode of existence in Canada.
[15] In addressing this issue, the Citizenship Judgeaddressed the six questions which Re Koo suggested would assist in determining whether an applicant 'regularly, ordinarily or customarily lives' in Canada. In assessing the quality of Mrs. Gunnarsson's connection with Canada, the Citizenship Judge stated:
It is difficult to establish a connection with Canada when one spends more time out of the country than in the country. Visiting a family member or a property does not in itself constitute a substantial connection to Canada.
In the relevant 4 year period, you have spent 427 days in Canada and 1033 days out of Canada. Although you own real estate in Canada and have a son living in Ottawa, you do not "regularly, normally or customarily" live in Canada. In fact you have spent less time in Canada than you have spent in Bangkok, the Czech republic, South Africa, and presently France. You stated at the hearing that you do not feel an attachment to any of those countries however it is very difficult to establish a substantial connection with Canada when you are not involved in the day to day community life of this country.
[16] The Citizenship Judge also decided not to exercise the discretion vested in her under subsection 5(3) and 5(4) of the Citizenship Act, which allows citizenship to be granted on compassionate grounds, in cases of exceptional and unusual hardship, or to reward services of exceptional value to Canada. In coming to this decision, the Citizenship Judge noted that Mrs. Gunnarsson had not filed any material to support the use of discretion.
Standard of Review
[17] Mrs. Gunnarsson submits that the Citizenship Judge misapplied the applicable law to the evidence that was before her in relation to Mrs. Gunnarsson's application for citizenship. According to Mrs. Gunnarsson, this raises a question of mixed fact and law, to which the appropriate standard of review is "close to correctness". In this regard, she relies on the decision in Lam v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 410.
[18] After the Lam decision was handed down, the Supreme Court of Canada rendered its decisions in Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 and Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226. These cases held that there are only three available standards of review in the administrative law context: correctness, reasonableness simpliciter and patent unreasonableness. These standards do not exist along a continuum or spectrum, as had previously been thought to be the case, and there are no intermediate gradations on the scale of deference.
[19] Since Dr. Q. and Ryan, a number of judges of this Court have had occasion to revisit the issue of the standard of review to be applied in citizenship cases. In Canada (Minister of Citizenship and Immigration) v. Chang, [2003] F.C.J. No. 1871, Justice Mackay applied a pragmatic and functional analysis to the citizenship scheme, concluding that the standard of reasonableness simpliciter was appropriate in the circumstances.
[20] This conclusion has been followed in a number of cases since: see, for example, Canada (Minister of Citizenship and Immigration) v. Xiong, [2004] F.C.J. No. 1356, Borissotcheva v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 494, Canada (Minister of Citizenship and Immigration) v. Fu, [2004] F.C.J. No. 88 and Canada (Minister of Citizenship and Immigration) v. Chen, [2004] F.C.J. No. 1040.
[21] I agree with Justice Mackay's analysis, and find that the appropriate standard of review in this case to be reasonableness simpliciter.
Analysis
[22] Different judges in this Court have taken different approaches to how the residency requirement in the Citizenship Actshould be interpreted. A Citizenship Judge is entitled to adopt any of these various approaches in determining whether a particular applicant has satisfied the residency requirements of the Act.
[23] In this case, the Citizenship Judge followed the approach advocated in Re Koo. While conceding that the judge was entitled to use this approach, Mrs. Gunnarsson says that she erred in her application of the Re Koo test.
[24] According to Mrs. Gunnarsson, the Citizenship Judge ignored the period before 1992 in assessing the quality of Mrs. Gunnarsson's connection with Canada. As a result, she failed to consider the nature and extent of the connection to Canada that Mrs. Gunnarsson developed prior to moving overseas in 1992 with her husband.
[25] Mrs. Gunnarsson says that the Citizenship Judgealso failed to consider whether her connection to Canada was more substantial than her connection with any other country.
[26] Further, while Mrs. Gunnarsson's visits to her cottage were indeed relatively short, the Citizenship Judge should have had regard for the fact that she returned to her cottage every year, without fail.
[27] Finally, Mrs. Gunnarsson cites a number of decisions which, she says, involve similar cases. In each case, the appellant was found to have satisfied the residency test established in the Citizenship Act, notwithstanding that the person was not physically present in Canada for substantial periods in the four year period immediately preceding the application.
[28] A review of the reasons of the Citizenship Judgediscloses that she was well aware of the 10 years that Mrs. Gunnarsson had spent in Canada prior to her moving overseas with her husband in 1992. However, having regard to the nature and extent of Mrs. Gunnarsson's absences from Canada in the ensuing 12 years, the Citizenship Judgeformed the opinion that these absences from Canada could not properly be considered to be temporary. In my view, this conclusion was reasonably open to her.
[29] The next question is whether the Citizenship Judge erred in failing to properly consider whether Mrs. Gunnarsson's connection to Canada was more substantial than her connection to any other country. In this regard, a review of the reasons discloses that the Citizenship Judge did assess the family connections that Mrs. Gunnarsson has in Canada relative to her family connections in Sweden. She also examined the length of time spent by Mrs. Gunnarsson in Canada in recent years, relative to the time spent in several other countries. While a more fulsome analysis on this point would have been preferable, given the peripatetic nature of Mrs. Gunnarsson's life, I am not persuaded that this issue would have been determinative of her application. Ultimately, the question properly addressed by the Citizenship Judge was whether Mrs. Gunnarsson had centralized her existence in Canada.
[30] As far as Mrs. Gunnarsson's visits to her cottage in Canada are concerned, the Citizenship Judge specifically noted in her decision that when she comes to Canada, Mrs. Gunnarsson stays at her cottage. The Citizenship Judge also carefully examined the history of Mrs. Gunnarsson's absences from Canada in her decision. From this, the regularity of Mrs. Gunnarsson's visits to her cottage would be obvious. As a result, I am not satisfied that the Citizenship Judge failed to properly consider the recurring nature of Mrs. Gunnarsson's visits to this country.
[31] Mrs. Gunnarsson has put several Bills before me reflecting government attempts to change the provisions of the Citizenship Act as it relates to eligibility requirements. I am not persuaded that these are of much assistance in this case. Whatever changes the government might have hoped to make to the legislation, it is the provisions of the Citizenship Act in its current form that are relevant to this case.
[32] I have also considered the cases cited by Mrs. Gunnarsson and by the respondent, each of which deals with somewhat similar fact situations. From my review of these cases, it is clear that each of these cases ultimately turns largely on its own facts, and is, therefore, of only limited assistance.
Conclusion
[33] I concur with the Citizenship Judge's finding that Mrs. Gunnarsson would undoubtedly make an excellent Canadian citizen. That is, however, not the question here.
[34] Notwithstanding the very able submissions of counsel for Mrs. Gunnarsson, I am not persuaded that the Citizenship Judge erred in her application of the Re Koo test. She was properly alive to the fact that physical presence in Canada is not required in order to be able to satisfy the residency test set out in the Citizenship Act. Further, in assessing whether Mrs. Gunnarsson regularly, ordinarily or customarily lived in Canada, the Citizenship Judge considered the appropriate factors.
[35] The source of Mrs. Gunnarsson's concern is ultimately with the weight ascribed by the Citizenship Judge to various facts. While a different Citizenship Judge might have come to a different conclusion on the basis of these facts, I cannot find that the decision in this case was unreasonable.
[36] As a result, Mrs. Gunnarsson's appeal is dismissed.
ORDER
THIS COURT ORDERS that:
1. This appeal is dismissed
"Anne L.Mactavish"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: T-583-04
STYLE OF CAUSE: BERIT MARGARETA GUNNARSSON
v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: NOVEMBER 3, 2004
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: HONOURABLE MADAM JUSTICE MACTAVISH
DATED: NOVEMBER 12, 2004
APPEARANCES BY:
Elissa Goodman
BORDEN LADNER GERVAIS LLP
Barristers and Solicitors
Scotia Plaza
40 King Street West
Toronto, Ontario M5H 3Y4 FOR THE APPLICANT
Ann Margaret Oberst
DEPARTMENT OF JUSTICE
130 King Street West
Suite 3400, Box 36
Toronto, Ontario M5X 1K6 FOR THE RESPONDENT
SOLICITORS OF RECORD:
Elissa Goodman
(416) 367-6625 FOR THE APPLICANT
Ann Margaret Oberst
(416) 973-7537
FOR THE RESPONDENT