Date: 20030512
Docket: T-1616-01
Citation: 2003 FCT 572
Between:
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
- and -
MOHAMMAD SHAFIQ
Respondent
REASONS FOR JUDGMENT
PINARD J.:
This is an appeal brought under subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 (the "Act") from the decision of Citizenship Judge Jeanine C. Beaubien (the "Citizenship Judge"), dated July 17, 2001, wherein she granted the respondent's application for Canadian citizenship.
The respondent is a citizen of Pakistan and was granted permanent resident status in Canada on October 1, 1999. He filed his application for citizenship on March 6, 2000. The respondent had only been physically present in Canada for 537 of the required 1,095 days in the four years immediately preceding his request for citizenship.
The Citizenship Judge granted the respondent's citizenship application with this explanation:
M. Mohamad (sic) par contre déplore le fait de ses nombreuses absences. Il dit essayer de vendre son commerce de supermarché à Kuwait mais doit retourner périodiquement faire une surveillance et mousser la vente. Il m'explique que seulement une personne du pays (natif) peut acheter un commerce et que depuis les dernières années (suivant les années prospères d'après Guerre) les affaires selon lui ne sont pas favorables. Il espère toujours vendre mais pas à perte. Ceci explique les nombreuses absences. Les documents soumis prouvent une activité et une présence physique importante bien que limitée.
Je crois en la sincérité des déclarations et que M. Mohamed (sic) Shafiq ainsi que sa famille dont Adnan, & Naila son épouse, qui sont aussi des appliquants satisfont les dispositions du paragraphe 5(1)c de l'acte de La Citoyenneté Canadienne, Résidence.
Residence requirements are set out in paragraph 5(1)(c) of the Act, which reads as follows:
| 5. (1) The Minister shall grant citizenship to any person who
[. . .]
(c) has been lawfully admitted to Canada for permanent residence, has not ceased since such admission to be a permanent resident pursuant to section 24 of the Immigration Act, and has, within the four years immediately preceding the date of his application, accumulated at least three years of residence in Canada calculated in the following manner:
(i) for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and
(ii) for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence;
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5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois :
[. . .]
c) a été légalement admise au Canada à titre de résident permanent, n'a pas depuis perdu ce titre en application de l'article 24 de la Loi sur l'immigration, et a, dans les quatre ans qui ont précédé la date de sa demande, résidé au Canada pendant au moins trois ans en tout, la durée de sa résidence étant calculée de la manière suivante:
(i) un demi-jour pour chaque jour de résidence au Canada avant son admission à titre de résident permanent;
(ii) un jour pour chaque jour de résidence au Canada après son admission à titre de résident permanent.
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First, the applicant submits that the Citizenship Judge erred in calculating the respondent's days of absence from Canada and the relevant four-year period. However, the Notice to the Minister of the Decision of the Citizenship Judge contains a formula for determining the number of days an applicant has been present in Canada. It makes no difference to the result that the Citizenship Judge calculated that number from the day the respondent landed in Canada instead of from March 6, 1996, which was four years before his application for citizenship. Had she done the latter, both the total number of days and the total absences would have increased by 210, and the number of days of physical presence in Canada would have remained 537.
Second, the applicant submits that the respondent's application for citizenship was premature, because it was made before he had been a landed immigrant for four years. In my view, the respondent is legally entitled to apply for citizenship before the end of the four-year period. However, this reduces his ability to demonstrate his compliance with the residency requirements of the Act.
More importantly, the applicant submits that the respondent's presence in Canada for only 537 days during the four years immediately preceding his request for citizenship does not fulfill the requirement of 1,095 days of physical presence in Canada during the four-year period preceding his application.
In my opinion, actual presence in Canada is by far the most important factor to be taken into account when assessing whether an applicant has met the residency requirements of the Act. Only under special or exceptional circumstances will an applicant not be required to be present physically in Canada during the minimum period. On the subject of the physical presence requirement, I stated as follows in Senoussi v. Minister of Citizenship and Immigration (July 7, 2000), T-1420-99:
[2] In Re Pourghasemi (1993), 19 Imm.L.R. (2d) 259, at 260, my brother Muldoon J. set out the objectives underlying that provision of the Act:
. . . to insure that everyone who is granted precious Canadian citizenship has become, or at least has been compulsorily presented with the everyday opportunity to become, "Canadianized". This happens by "rubbing elbows" with Canadians in shopping malls, corner stores, libraries, concert halls, auto repair shops, pubs, cabarets, elevators, churches, synagogues, mosques and temples - in a word wherever one can meet and converse with Canadians - during the prescribed three years. One can observe Canadian society for all its virtues, decadence, values, dangers and freedoms, just as it is. That is little enough time in which to become Canadianized. If a citizenship candidate misses that qualifying experience, then Canadian citizenship can be conferred, in effect, on a person who is still a foreigner in experience, social adaptation, and often in thought and outlook. If the criterion be applied to some citizenship candidates, it ought to apply to all. So, indeed, it was applied by Madam Justice Reed in Re Koo, T-20-92, on December 3, 1992 [reported 19 Imm.L.R. (2d) 1], in different factual circumstances, of course.
(See also the judgments of the Federal Court Trial Division in Re Afandi (November 6, 1998), T-2476-97, M.C.I. v. Kam Biu Ho (November 24, 1998), T-19-98, M.C.I. v. Chen Dai (January 6, 1999), T-996-98, M.C.I. v. Chung Shun Paul Ho (March 1, 1999), T-1683-95, M.C.I. v. Fai Sophia Lam (April 28, 1999), T-1524-98, M.C.I. v. Su-Chen Chiu (June 9, 1999), T-1892-98, M.C.I. v. Chi Cheng Andy Sun (June 6, 2000), T-2329-98, Oi Hung Vera Hui v. M.C.I. (June 6, 2000), T-1338-99 and Martin Long Ying Lo v. M.C.I. (June 6, 2000), T-959-99).
[3] This Court has held that a correct interpretation of s. 5(1)(c) of the Act does not require a person to be physically present in Canada throughout the 1,095-day period of residence prescribed when there are special and exceptional circumstances. However, I consider that actual presence in Canada is still the most relevant and most important factor to be taken into account in determining whether a person has "resided" in Canada within the meaning of this provision. As I have said many times, an extended absence from Canada, though temporary, during this minimum period of time is contrary to the spirit of the Act which already allows a person legally admitted to Canada as a permanent resident not to reside there for one of the four years preceding the date of his or her citizenship application.
(Emphasis is mine.)
In the case at bar, the respondent has given as reasons for his absences visiting relatives, as well as managing and trying to sell his business in Kuwait. Given the substantial absences of the respondent from Canada (he was present in Canada for only 537 days of the required 1,095 days), these reasons do not constitute special or exceptional circumstances which would relieve him from the physical presence requirement. I find, therefore, that the Citizenship Judge's conclusion that the respondent met the residency requirements of the Act is totally unreasonable and that such conclusion is the result of an erroneous application of paragraph 5(1)(c) of the Act.
For the reasons given above, the appeal is allowed and the decision of the Citizenship Judge, dated July 17, 2001, is quashed on the ground that at the time the respondent applied for Canadian citizenship, he did not meet the residency requirements of paragraph 5(1)(c) of the Act. The respondent's application for Canadian citizenship is consequently denied.
JUDGE
OTTAWA, ONTARIO
May 12, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1616-01
STYLE OF CAUSE: MINISTER OF CITIZENSHIP AND IMMIGRATION v. MOHAMMAD SHAFIQ
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 8, 2003
REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE PINARD
DATED: May 12, 2003
APPEARANCES:
Me Carmela Maiorino FOR THE APPLICANT
Mr. Mohammad Shafiq ON HIS OWN BEHALF
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE APPLICANT
Deputy Attorney General of Canada
Ottawa, Ontario
Mohammad Shafiq ON HIS OWN BEHALF
Laval, Quebec
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