Date: 20041112
Docket: T-582-04
Citation: 2004 FC 1593
OTTAWA, ONTARIO, NOVEMBER 12, 2004
PRESENT: THE HONOURABLE MADAM JUSTICE MACTAVISH
BETWEEN:
BENGT GUNNARSSON
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Bengt Gunnarsson appeals from the decision of a Citizenship Judge refusing his application for citizenship. Mr. Gunnarsson's application was refused because he did not meet the residency requirement set out in paragraph 5(1)(c) of the Citizenship Act. Mr. Gunnarsson asserts that the Citizenship Judge failed to consider and to give appropriate weight to the degree to which he had centralized his life in Canada.
[2] This appeal was heard at the same time as appeals in cases T-581-04 and T-583-04, which relate to Mr. Gunnarsson's wife and son.
Facts
[3] Mr. Gunnarsson is a 60-year-old Swedish citizen, who is currently a senior executive with the Bata shoe company. Mr. Gunnarsson began his career with Bata in Sweden, where a number of members of his extended family still reside. In 1980, the company transferred him to France, and in 1982, he was transferred to Bata headquarters in Canada.
[4] Mr. Gunnarsson came to Canada on a work permit. He was accompanied by his wife and two sons. A year later, he was granted permanent resident status.
[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, Mr. Gunnarsson and his wife raised their family in the Toronto area. The family made many friends in this country, and became fully integrated into their community.
[7] In 1992, Bata again transferred Mr. Gunnarsson, this time to Thailand. Mr. Gunnarsson was accompanied to the Far East by his wife and Carl Frederik, his son. His 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 Mr. Gunnarsson and his wife reside to this day.
[9] According to Mr. Gunnarsson, one reason that Bata moves its senior people abroad is to have them share Canadian management principles, spirit and enterprise with those working in the company's foreign operations. In each of his foreign postings, Mr. Gunnarsson has met foreign dignitaries, participated in trade delegations and received awards, in each case in his capacity as a representative of a Canadian business overseas.
[10] In the 12 years that they have been posted abroad, Mr. Gunnarsson and his wife have lived in rented accommodations. They have rented out their Willowdale home, storing their possessions in Mississauga. Mr. Gunnarsson spends approximately one month every summer 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 Mr. Gunnarsson had been absent from Canada for 1285 days in the preceding four years, and had only been physically present in Canada for 175 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 Mr. Gunnarsson's connection with Canada, the Citizenship Judge stated:
It is difficult to establish a connection with Canada and participate in Canadian society when one does not live here. Although the applicant has a son living in Canada, he also has extended family in Sweden. With 175 days in Canada in the 4 years prior to his application, Canada is not the place where the applicant has centralized his mode of existence.
It is very difficult to absorb Canadian values and integrate oneself into Canadian society due to such long absences. Although you own property in Canada, you have not maintained your presence in Canada. You have not centralized your mode of existence here. You stated that you report your personal income tax in the country where you are working and therefore do not file personal income tax in Canada. You do not "regularly, normally, or customarily" live in Canada.
[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 Mr. Gunnarsson had not filed any material to support the use of discretion.
Standard of Review
[17] Mr. Gunnarsson submits that the Citizenship Judge misapplied the applicable law to the evidence that was before her in relation to his application for citizenship. He says that this raises a question of mixed fact and law, to which the appropriate standard of review is "close to correctness". In this regard, he 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 she was entitled to use this approach, Mr. Gunnarsson says that the Citizenship Judge erred in her application of the Re Koo test.
[24] According to Mr. Gunnarsson, the Citizenship Judge ignored the period before 1992 in assessing the quality of Mr. Gunnarsson's connection with Canada. As a result, she failed to consider the nature and extent of the connection to Canada that Mr. Gunnarsson developed prior to his having been posted abroad in 1992.
[25] Mr. Gunnarsson says that the Citizenship Judgealso failed to consider whether his connection to Canada was more substantial than his connection with any other country.
[26] Further, while Mr. Gunnarsson's visits to his cottage were indeed relatively short, the Citizenship Judge should have had regard for the fact that Mr. Gunnarsson returned to his cottage every year, without fail.
[27] Finally, Mr. Gunnarsson cites a number of decisions which, he 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 Mr. Gunnarsson had spent in Canada prior to his having been posted overseas in 1992. However, having regard to the nature and extent of Mr. Gunnarsson's absences from Canada in the ensuing 12 years, the Citizenship Judge formed the opinion that his 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 Mr. Gunnarsson's connection to Canada was more substantial than his connection to any other country. In this regard, a review of the reasons of the Citizenship Judge discloses that she did assess the family connections that Mr. Gunnarsson has in Canada relative to his family connections in Sweden. While a more fulsome analysis on this point would have been preferable, given the peripatetic nature of Mr. Gunnarsson's life, I am not persuaded that this issue would have been determinative of his application. Ultimately, the question properly addressed by the Citizenship Judge was whether Mr. Gunnarsson had centralized his existence in Canada.
[30] As far as Mr. Gunnarsson's visits to his cottage in Canada are concerned, the Citizenship Judge specifically noted in her decision that when he comes to Canada, Mr. Gunnarsson stays at his cottage. She also carefully examined the history of Mr. Gunnarsson's absences from Canada in her decision. From this, the regularity of Mr. Gunnarsson's visits to his cottage would be obvious. As a result, I am not satisfied that the Citizenship Judge failed to properly consider the recurring nature of Mr. Gunnarsson's visits to this country.
[31] Mr. 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 Mr. 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 Mr. Gunnarsson would undoubtedly make an excellent Canadian citizen. That is, however, not the question here.
[34] Notwithstanding the very able submissions of counsel for Mr. 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 Mr. Gunnarsson regularly, ordinarily or customarily lived in Canada, the Citizenship Judge considered the appropriate factors.
[35] The source of Mr. Gunnarsson's concern is ultimately with the weight ascribed by the Citizenship Judge to various facts. While a different Citizenship Judgemight 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, Mr. 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-582-04
STYLE OF CAUSE: BENGT 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