Old Age Security (OAS) and Guaranteed Income Supplement (GIS)

Decision

[1] The Claimant is entitled to an Old Age Security pension as I have determined that he was resident in Canada from September 2009 to December 2011.

Overview

[2] The Claimant moved from Iraq to Canada in November 2007. In June 2017, he applied for an old age security pension. His application was denied. The Respondent denied the application because it determined that the Claimant did not reside in Canada from September 2009 to December 2011 and therefore had an insufficient period of residency to qualify for an old age security pension. The Respondent confirmed its decision on reconsideration. The Claimant appealed the reconsideration decision to the Social Security Tribunal.

Issue(s)

[3] Whether the Claimant was resident in Canada from September 2009 to December 2011.  I note that the Claimant had other absences from Canada since first arriving in the country however, the minister did not take issue with these additional periods and I have therefore concluded and accept that those periods are not in dispute as periods of residency. I have limited my consideration to the specific period noted above.

Analysis

The Claimant made his home and ordinarily lived in in Canada from September 2009 to December 2011.

[4] I have determined that although the Claimant was not present in Canada from September 2009 to December 2011 he was still resident in the country and was kept away from returning because of factors external to his control.

[5] I spoke to both the Claimant and his son at the hearing. They both provided me with the context of why the Claimant was present in Iraq from September 2009 to December 2011.

[6] The Claimant and his son both confirmed that the reason the Claimant returned to Iraq was to renew his passport. The Claimant’s passport was set to expire in 2010. He had to renew it because he was not a permanent resident in Canada and had no official identification except his passport. The son told me how the Iraqi embassy in Canada was run poorly. He spoke to a representative at the embassy who advised him there was no guarantee that if he either attended on site or sent an application in the mail that he would ever see a response. In any event, it would take at least 6 months to obtain a new passport. The son told me that the family was told the Claimant might not receive his passport if not done in person in Iraq. The embassy representative advised the Claimant to return to Iraq to renew his passport. Therefore, he did so.

[7] When he returned to Iraq in late 2009 his brother was also close to dying and while the Claimant was there his brother passed away. He stayed for the funeral and worked towards obtaining his new passport. However, the Claimant was staying in the town of Mosul.

[8] Around the time, the Claimant returned to Iraq, there was an insurrection brought on by Al Qaeda. The insurrection including bombings, attacks on civilians, and an increased military presence. The Claimant, being a man of Kurdish background, was not safe. He was unable to leave the city; doing so would have put his life at risk. There being no passport office in Mosul he was left with no option for renewing his passport. Instead, he continued to stay in Mosul until early 2011. At that time, word was received that safe passage could be provided to Kurdistan and that a passport office was now open in the city of Duhok. The Claimant moved from Akra to Dahuk and obtained his passport in January 2011.

[9] I felt satisfied that the period of time from November 2009 to January 2011 was a period that the Claimant had no choice but to stay in Iraq. His residency was still attached to Canada but through no fault of his own, he was unable to leave Iraq. However, the question remained; why not leave Iraq after he received the passport.

[10] The Claimant wanted to come back to Canada in January 2011. But he felt unwell. Both the Claimant and his son confirmed this. I asked what this meant. The Claimant’s son told me that his dad had developed cancer and had become so sick that he could not travel back to Canada. He told me that it was only when his brother, in Iraq, took him to a doctor and confirmed that he was feeling well enough to return that he did so in December 2011.

[11] I wanted to confirm that the Claimant was sick with cancer and asked him to provide medical documents to demonstrate that he had cancer. The Claimant provided medical documents demonstrating that shortly after returning to Canada he was diagnosed with and started treatment for cancer. He continues to seek treatment for cancer.

[12] Residence in Canada is one of the requirements for eligibility for Old Age Security benefits. Residence means that a person makes his home and ordinarily lives in any part of Canada while presence means that a person is physically present in any part of Canada.^{Footnote 1}

[13] Residence is a question of fact to be determined on the particular facts of each case. A person`s intentions are not decisive. Factors to be considered include, but are not limited to:

1. Ties in to form of personal property;
2. Social ties in Canada;
3. Other ties in Canada;
4. Ties in another country;
5. Regularity and length of stays in Canada versus the frequency and length of stay in other countries;
6. The person`s mode of living, or whether the person`s life in Canada is substantially deep-rooted and settled.^{Footnote 2}

[14] I find that the Claimant had a stronger tie to, and in fact, made Canada his residence for the contested time. Although not present in Canada from September 2009 to December 2011, it was not for any intention of his own. He was prevented from returning to Canada first because of an insurrection and secondly because of cancer. He continued to have his wife and son in Canada. Neither of them attended Iraq during this time. He was unable to leave when he wanted to because first he had no documents that would allow him to leave and then was too sick with cancer to leave.

[15] When he eventually became well enough to leave Iraq, he did so.

[16] These facts all demonstrate a continued and strong connection to Canada. For these reasons, I find that the period from September 2009 to December 2011 was a period of residence in Canada and that the Claimant is entitled to an old age security pension.

Conclusion

[17] The appeal is allowed. September 2009 to December 2011 counts as a period of residency in Canada for establishing the Claimant’s entitlement to an old age security pension.