Would-be immigrant done in by work ethic

All Erich Kaindl wanted was to provide for his wife and five children.

That's what he thought Canada expected of him when he sold his house in Austria and moved to Kanata with his family in 1998 to take a high-tech job in what was then known as Silicon Valley North.

Now, he fears that same work ethic and sense of responsibility could deny him the Canadian citizenship that his wife and children have since obtained. Now, the 48-year-old wonders if what a Canadian official in Vienna told him was right after all: he should have gone on welfare instead.

Kanata was a boom town when Kaindl arrived to work for Siemens' Canadian division.

But after the dot-com bubble imploded, he was laid off and has had no luck finding another job here.

In 2002, he accepted a job offer from Siemens in Austria, where he now works as a senior project manager. The job has allowed his family to stay in Ottawa and put down roots. "If I hadn't paid all the bills," Kaindl says, "they wouldn't have survived here."

He returns to Ottawa for extended visits every Christmas, Easter and in the summer, but is typically absent for about 10 months a year. It's those lengthy absences that have become the problem.

In 2008, Kaindl and his family applied for Canadian citizenship. His wife, Gabrielle, and their three sons and two daughters - now aged 19 to 25 - were granted citizenship in 2010. But Citizenship Judge Brian Coburn rejected Kaindl's application. The Citizenship Act requires those seeking citizenship to be physically present for the equivalent of three of the four years immediately preceding their applications.

Because of his work overseas, Kaindl was 871 days short of meeting the residency requirement, Coburn concluded. Kaindl says Coburn "screwed up" the calculation and the gap is less than that. But he doesn't dispute that he wasn't in Canada for the requisite 1,095 days during the four-year residency period.

This is where things get murky. Because the law doesn't define what it means by residency, decisions by the Federal Court, which hears citizenship appeals, have created three competing tests that citizenship judges can use to assess candidates, as long as they're applied with common sense on the facts of the case. In the words of one former Federal Court judge, that's made the process of acquiring citizenship "akin to a lottery." Depending on which test is applied, one person may be granted citizenship and another denied it on the same set of facts. It was Kaindl's misfortune that the test Coburn used only considers whether applicants have been physically present in Canada for at least 1,095 days in the preceding four years.

Another less stringent test looks at whether applicants have established residence and strong attachment to Canada, even if they've been temporarily absent.

The third test is the one most commonly used. It defines residence as the place where someone "regularly, normally or customarily lives" or has "centralized his or her mode of existence." Under this test, citizenship judges must consider six factors, including the extent of the physical absences, the quality of an applicant's connection to Canada and where members of his or her immediate family live.

There's no guarantee that Kaindl's citizenship application would have been approved had Coburn used one of the other tests. But at least he would have had a chance.

Kaindl filed an appeal of Coburn's decision in September 2010. And last month, without benefit of a lawyer, he finally had his day in Federal Court. Justice Donald Rennie reserved judgment. Afterwards, Kaindl was feeling somewhat optimistic. "I made all my points," he said. "I think the judge was open at least to my argumentation. The bottom line is, he has to make the call."

Earlier, Kaindl pointed out the study guide given to citizenship applicants stresses the need to take responsibility for oneself and one's family. "Getting a job, taking care of one's family and working hard in keeping with one's abilities are important Canadian values," the guide says. Yet Kaindl feels he's being punished - even "bullied" - for doing just that. He finds it bitterly ironic that when he described his plight to a Canadian embassy official in Vienna, he was told there would be no issue had he stayed in Canada and gone on welfare, or chosen to drive a taxi.

"If I drive a taxi for the next couple of years, my career is gone," he says.

Kaindl argues that his decision to work in Austria has had benefits for Canada. Four of his children attend university here and two have earned bachelor degrees. "I've more or less provided the country with well-educated people," he says. "They wouldn't be Canadians or contribute to the society."

Kaindl's failure to win citizenship has made it even harder for him to find work here. And every time he enters the country, he's directed to the airport immigration office - "the inquisition, I call it now" - for a thorough interrogation. Then he's directed to a customs officer for more questioning and a search of his bags. "The fear I have is I'm at the mercy of these guys," he says. "If they decide I have no merits to come in, they can even throw me out."

If he can't obtain citizenship, Kaindl fears he could lose his permanent resident status as well, leaving him without status in a country that has granted citizenship to every other member of his immediate family.

He admits he'll probably give up on Canada and move back to Austria if his appeal is unsuccessful. "I've really put a lot of effort into defending myself in this case. But if I lose, what else should I do?"