Date: 19980205
Docket: T-1115-96
IN THE MATTER OF the Citizenship Act,
R.S.C., 1985, c. C-29
AND IN THE MATTER OF an appeal from the
decision of a Citizenship Judge
AND IN THE MATTER OF
FOUAD SAMI HAJJAR
Appellant
REASONS FOR JUDGMENT
LUTFY J.
[1] This is an appeal from the decision of a Citizenship Judge to dismiss the appellant's application for citizenship on the grounds that the residency requirements of paragraph 5(1)(c) of the Citizenship Act have not been met.
[2] The appellant, 61, his mother, 80 and his two sisters, in their mid-50's, were born in Palestine. The appellant was 12 years old when his family left his place of birth. After living for slightly over a decade in Egypt, the family moved to Lebanon in the early 1960's where they acquired Lebanese citizenship.
[3] In 1970, the appellant married another Palestinian who had acquired Lebanese citizenship. They took up residency in the city of Sharjah in the United Arab Emirates where the appellant was setting up his own construction business. Their three children were born between 1971 and 1979 and also have Lebanese citizenship. The children were raised in the United Arab Emirates until their arrival in Canada.
[4] In 1975, because they were seriously threatened by the war in Lebanon, the appellant's father, mother and two sisters fled to Greece. The appellant's father required surgery in London in 1976 where he died shortly thereafter. The appellant's mother and one sister continued to live in Greece until approximately 1989 and his other sister moved in with the appellant's immediate family in Sharjah.
[5] In 1987, the appellant was in communication with federal and Quebec officials to process the application for permanent residence for himself, his wife, his three children, his mother and two sisters. On relatively short notice, all were required to land in Canada on October 11, 1988. The appellant states that, in the circumstances, the family members were allowed to remain outside of Canada for a period of twelve months. In fact, it was only during the summer of 1990 that the family can be said to have established itself in Montréal, Quebec.
[6] The appellant entered Canada with $250,000 and apparently no requirement was made that these funds be invested in a business. A small amount of these funds was used in 1993 to acquire a modest dépanneur which is being operated by one of the appellant's sisters. None of the other members of the family is currently gainfully employed. All are dependent on the appellant.
[7] The family residence has been at the same Montréal location since 1990. The appellant is responsible for the lease of three apartment units. Two of these units have been converted into one large apartment to accommodate the appellant, his wife, their three children and one of his sisters. The appellant's mother and other sister live together in the third unit immediately adjacent to the other two. The total rent for the three units is approximately $2,400 monthly. The appellant explained credibly his personal reasons for preferring substantial rental payments, currently over $28,000, since 1990 instead of purchasing a large single-unit dwelling which would be required to house his dependants. He continues to use his house in Sharjah when in the United Arab Emirates for his business. This property has a market value of approximately $150,000 and, according to the applicant, can be readily sold. While in many citizenship appeals reference is made to the appellants' ownership of their residences, I do not find that this appellant's commitment to Canada is in any way diminished through the family's decision to rent their housing.
[8] The appellant's eldest daughter immediately entered McGill University where she acquired a degree in civil engineering and is presently studying architecture. Her siblings completed their high school and CEGEP diplomas in Montréal; one is now studying cinematography at Ryerson Polytechnic University and the other is a biology student, also at McGill University.
[9] The only other surviving member of the appellant's family is a sister who resides in the United States. The widower of his fourth sister resides in Toronto with his children.
[10] The period of time that the appellant has spent in Canada since 1990 has been limited to slightly over two months annually. He is here with his family for the year-end holiday season and for another period of slightly more than one month during the summer. He is fluent in both official languages. While in Canada with his family and in his communications with them when he is at work in the United Arab Emirates, he has become familiar with the Canadian way of life, including Quebec colloquialisms. He has acquired a social insurance number, Quebec driver's license and health cards. He regularly consults a physician in Montréal. His income tax returns reflect principally the interest income on his initial $250,000 investment but his tax payments, after R.R.S.P. and other deductions, are nominal. In the four years prior to his application for citizenship, the appellant was in Canada for 16% of the time, well short of the required 1,095 days.
[11] The appellant's evidence concerning his absences from Canada is clear, straightforward, corroborated by financial statements and credible. In 1970, the appellant started up East Coast and Hamriah Co. (LLC) in Sharjah, United Arab Emirates. According to the appellant, the company was successful in the construction of hospitals, schools and other similar buildings in the public and para-public sectors. The appellant is the directing mind of the company although he is required by local legislation to have a minority partner who is a citizen of the United Arab Emirates. Business began to deteriorate in the early 1990's. While the business is still viable, it is not as profitable as it once has been and its current debt load would not make it an attractive acquisition at a selling price that would be interesting for the appellant. He hopes that the situation will improve in the near future so that he can dispose of the company at a price that would allow him to continue to support his dependants.
[12] In the absence of any statutory definition, the courts have interpreted the meaning of "at least three years of residence" in paragraph 5(1)(c) of the Act. In Re Papadogiorgakis1, Associate Chief Justice Thurlow, as he then was, stated that the words "residence" and "resident" in paragraph 5(1)(c) are not limited to actual presence in Canada.
[13] Some fifteen years later, my colleague Madam Justice Reed reviewed the case law that had developed in this Court since the leading decision in Re Papadogiorgakis. In Re Koo2, she concluded that the appropriate test is whether Canada is the place where the person "regularly, normally or customarily lives" or has centralized their mode of existence. In making this determination, the relevant criteria include the length of the person's stays in Canada, the residence of the person's immediate and extended family, the extent and the reason for the physical absences, the quality of the connection with Canada in comparison with any other country and whether the time spent in Canada indicates a returning home as opposed to a mere visit.
[14] In Re Ng3, my colleague Mr. Justice Cullen, after reviewing the decisions in Re Papadogiorgakis and Re Koo, reiterated some of these criteria in more specific terms. He spoke of the person having established and maintained a home in Canada or, expressed differently, "established a residence in Canada, maintained a pied-à-terre in Canada and intended to reside in Canada." He also noted that the case law referred to the "indicia of residency" and the "quality of attachment" and that the stricter test, the quality of attachment, is gaining strength.
[15] There are a number of decisions where this Court has maintained citizenship appeals where the appellant's absences were as lengthy as those in this case.4 Other recent decisions have been more restrictive.5 Parliament has not amended the definition of "resident" or "residence" in paragraph 5(1)(c) over the twenty years since Re Papadogiorgakis during which several judges of this Court have interpreted these provisions in a way which, in certain circumstances, accommodates lengthy absences.
[16] This case, in my view, is an exceptional one. The appellant is a Palestinian who has acquired Lebanese citizenship. He began working and living first in Qatar and then in the United Arab Emirates shortly after his parents and siblings moved to Lebanon in the 1960's. None of his family members has lived in Lebanon since 1975. The appellant is physically disconnected from his country of birth. He states that neither he nor any other member of his extended family is eligible for citizenship in the United Arab Emirates. The appellant, his wife and dependent children may return there under residence status but only for as long as the appellant continues to work in that country.
[17] While the appellant's business commitments in the United Arab Emirates have required his lengthy absences from Canada, there is no doubt in my mind of his and his family's establishment in and substantial attachment to Canada within the meaning of paragraph 5(1)(c) and the relevant case law. There is no reason for his being in the United Arab Emirates other than his business. His status in the United Arab Emirates is related directly to his employment there. Should he be able to sell his business, he will have every reason to return on a full-time basis to his wife, children, mother and sisters whom he supports in Montréal. His stays in Canada represent his returning to his home and family from his place of work. As was noted aptly by Mr. Justice Dubé in Re Huang6 where, as in this case, all members of the appellant's family had acquired Canadian citizenship, "the most eloquent indicia of residency is the establishment of a person and his family in the country, coupled with a manifest intention of making the establishment their permanent home."
[18] The low percentage of presence in Canada over the four years prior to the appellant's application for citizenship is explained by reason of his necessary commitment to his business in the United Arab Emirates. His financial resources are the principal source of monetary support for his extended family. His work is his sole nexus to any legal status in the United Arab Emirates where he will not become a citizen. He has no apparent present physical connection to any other country. The appellant, with his immediate family and other dependants, has established his residence in Canada where he and his family have centralized their mode of living within the meaning of paragraph 5(1)(c). In the exceptional circumstances of this case and even though the amicus curiae suggested that the appellant's application for citizenship may be premature, I am satisfied that it is fully appropriate to maintain the appeal.
"Allan Lutfy"
Judge
Toronto (Ontario)
February 5, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: T-1115-96
| STYLE OF CAUSE: IN THE MATTER OF the Citizenship Act, |
| AND IN THE MATTER OF an appeal from the decision of a Citizenship Judge |
DATE OF HEARING: DECEMBER 16, 1997 and
JANUARY 19, 1998
PLACE OF HEARING: MONTRÉAL, QUEBEC and
OTTAWA, ONTARIO
(Conference Call and
Videoconference - Ottawa)
REASONS FOR JUDGMENT BY: LUTFY, J.
DATED: FEBRUARY 5, 1998
APPEARANCES:
Mr. Julien Cools-Lartigue
Mr. Christopher Richardt
For the Appellant
Mr. Jean Caumartin
Amicus Curiae
- 2 -
SOLICITORS OF RECORD:
Woods & Partners
1100-2000 McGill College Avenue
Montréal, Quebec
H3A 3H3
Fax: (514) 284-2046
For the Appellant
Mr. Jean Caumartin
6688 Christophe-Colomb Avenue
Montréal, Quebec
H2S 2G8
Tel: (514) 274-1126
Amicus Curiae
FEDERAL COURT OF CANADA
Date: 19980205
Docket: T-1115-96
BETWEEN:
IN THE MATTER OF the Citizenship Act,
| AND IN THE MATTER OF an appeal from the decision of a Citizenship Judge |
Appellant
REASONS FOR JUDGMENT
__________________
1 [1978] 2 F.C. 208 at 213-4 (F.C.T.D.).
2 [1993] 1 F.C. 286 at 293-4 (F.C.T.D.).
3 (1996), 121 F.T.R. 312 at 317 (F.C.T.D.).
4 Re Leung (22 January 1998), T-241-97 (F.C.T.D.); Re Leung, [1997] F.C.J. No. 1451 (QL); Re Ng (1996), 35 Imm. L.R. (2d) 162 (F.C.T.D.); Re Lau, [1996] F.C.J. No. 930 (QL); Re Wang (1996), 112 F.T.R. 73 (F.C.T.D.).
5 Re Lin, [1997] F.C.J. No. 1801 (QL); Re Ko, [1996] F.C.J. No. 1653 (QL); Re Lee (1996), 37 Imm. L.R. (2d) 67 (F.C.T.D.); Canada (Minister of Citizenship and Immigration) v. Ko (1996), 34 Imm. L.R. (2d) 162 (F.C.T.D.); Re Chiu (1995), 28 Imm. L.R. (2d) 211 (F.C.T.D.). See also a recent decision where the lengthy absences were fewer than in this case: Re Feng (22 January 1998), T-1-97 (F.C.T.D.).
6 [1997] F.C.J. No. 112 (QL) at para. 10.
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