Date: 20001128
Docket: T-140-00
BETWEEN:
FAY DIAS
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an appeal brought under subsection 14(5) of the Citizenship Act R.S.C. 1985, c.-29 (the "Act") appealing the decision of Citizenship Judge Pinel dated December 16, 1999 which disallowed the applicant's application for Canadian citizenship. The applicant, Fay Dias (the "applicant") seeks an Order that she has met the requirements for Canadian citizenship pursuant to subsection 5(1) of the Act.
[2] The applicant entered Canada on October 26, 1994 and was granted permanent residence on March 16, 1995. The applicant submitted her application for Canadian citizenship on February 19, 1998.
[3] According to the applicant she was absent from Canada for the following periods of time and for the reasons noted:
| From
D/M/Y
|
To
D/M/Y
|
Destination
Country
|
Reason
|
Days Absent
|
| |
26/10/1994
|
Canada
|
Arrive Toronto
|
0
|
| 02/12/1994
|
10/03/1995
|
UK
|
Immigration Preparation
|
97
|
| 03/04/1995
|
29/05/1995
|
UK
|
Self-employed
|
55
|
| 02/06/1995
|
04/06/1995
|
USA
|
Promote Software Services
|
2
|
| 02/07/1995
|
04/10/1995
|
UK
|
Self-employed
|
93
|
| 06/11/1995
|
24/01/1996
|
UK
|
Self-employed
|
78
|
| 04/03/1996
|
22/05/1996
|
UK
|
Self-employed
|
78
|
| 22/05/1996
|
26/05/1996
|
USA
|
Self-employed
|
3
|
| 01/07/1996
|
10/10/1996
|
UK
|
Self-employed
|
100
|
| 11/11/1996
|
31/01/1997
|
UK/Germany
|
Self-employed
|
80
|
| 04/03/1997
|
29/05/1997
|
UK
|
Self-employed
|
85
|
| 30/06/1997
|
28/08/1997
|
UK
|
Self-employed
|
58
|
| 15/09/1997
|
17/10/1997
|
UK
|
Self-employed
|
31
|
| 12/11/1997
|
28/01/1998
|
UK/France
|
Self-employed
|
77
|
| |
|
|
TOTAL
|
837
|
[4] The Citizenship Judge found that the applicant was absent from Canada for 798 days in the four years immediately preceding the date of her application and present for 347 days. She determined that the residence test of paragraph 5(1)(c) of the Act, which requires at least three years (1,095 days) of residence in Canada within the four years immediately preceding the date of the application for citizenship had not been met by the applicant.
[5] The applicant puts forth the following as indicia of her residence:
| [ · ] She established her first residence in Kingston and then two months later centralized her mode of existence in Canada by purchasing a house in Kingston. |
| [ · ] While away from Canada, the house was fully furnished and utility, cable TV, snow removal, lawn maintenance, and property tax bills were paid. |
| [ · ] The house was neither rented nor leased. |
| [ · ] Drivers licence, social insurance number, provincial health card, bank account. |
| [ · ] Her absences were temporary and involuntary as she is self-employed as a computer programmer and software consultant for the aviation industry, the nature of which requires on-site attendance. |
| [ · ] The applicant's aunt, six cousins and, their children live in Canada. |
| [ · ] The applicant and her husband owned and ran a Canadian owned company (Zenner Aviation), for which paid corporate tax. |
| [ · ] Zenner Aviation has established business relationships with five Canadian companies. |
| [ · ] She lived in hotels while travelling outside of Canada. |
ISSUE
| [6] Did Citizenship Judge Pinel err in finding that the applicant did not meet the |
residence requirements of paragraph 5(1)(c) of the Citizenship Act?
APPLICANT'S SUBMISSIONS
| [7] The issues stated in the memorandum of fact and law may be summarized as |
follows:
A. Did the applicant satisfy the requirement prescribed under paragraph 5(1)(c) of the Citizenship Act?
The applicant submits the case of Re Papadogiorgakis, [1978] 2 F.C. 208 (F.C.T.D.) to support her argument that temporary absences from Canada will not preclude one from being a Canadian resident. Canada (Minister of Citizenship and Immigration) v. Cheung, [1999] F.C.J. No. 626 is submitted to show that "it is the quality of the attachment to Canada that is to be ascertained...[t]he length of the absences of itself is not determinative." The applicant then refers to the approach taken in the decision of Madam Justice Reed in Koo, Re (1992), 59 F.T.R. 27 (F.C.T.D.). In Koo, supra the approach taken was whether Canada is the place where the applicant "regularly, normally, or customarily lives". Reed J. suggested six questions that could be used by the Court as guidance in reaching a conclusion on residency.
The applicant offers the case of Ng, Re (1996), 35 Imm. L.R. (2d) 162 to support
her argument that her temporary and involuntary absences should not be held against her and that the application should be allowed.
B. Did the Citizenship Judge err in deciding that the applicant did not satisfy the residency requirement under paragraph 5(1)(c) of the Citizenship Act?
The applicant submits the decision of Lufty J. (as he then was) in Lam v. Canada
(Minister of Citizenship and Immigration) (1999), 164 F.T.R. 177 (F.C.T.D.) in support of the proposition that the standard of review in citizenship appeals is closer to correctness. Essentially, the applicant argues the Citizenship Judge erred by focussing on the number of days absent from Canada and not giving sufficient weight to the fact that she established and maintained residence in Canada. The applicant also argues the Citizenship Judge committed a reviewable error by not considering key evidence such as she and her husband owned and ran a Canadian company (Zenner Aviation), which paid corporate tax. Zenner Aviation has established business relationships with five Canadian companies.
The applicant submits the Citizenship Judge failed to note the applicant had
extensive business and pleasure trips to Canada (between 1978 and 1995) before she immigrated to Canada. The applicant argues during these regular visits, she appreciated and absorbed Canadian values.
RESPONDENT'S SUBMISSIONS
| [8] The respondent submits the relevant period for the purposes of this appeal is |
February 19, 1994 to February 19, 1998, which is four years immediately preceding the date of the citizenship application.
| [9] The respondent argues the existing jurisprudence clearly indicates the applicant |
must show factually that she initially established a residence of her own in Canada at least three years preceding her citizenship application and that she maintained her established residence. The respondent submits that where an applicant failed to establish, prior to any absence from Canada during the four years preceding the application, the requirements of the Act have not been met. This is not a "close case" as that of Re Papadogiorgakis, [1978] 2 F.C. 208 (F.C.T.D.), which involved unusual facts that do not apply in the case at bar. Recent jurisprudence has emphasised the need for substantial physical presence in Canada.
| [10] The substantial shortfall of days in Canada is, in the respondent's submission, an |
objective fact which indicates that the applicant has not met the residency requirement. The applicant has not shown exceptional circumstances which satisfy these requirements.
RELEVANT STATUTORY PROVISIONS
| [11] Paragraph 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29 states: |
| 5. (1) The Minister shall grant citizenship to any person who
(a) makes application for citizenship;
(b) is eighteen years of age or over;
(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;
(d) has an adequate knowledge of one of the official languages of Canada;
(e) has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship; and
(f) is not under a deportation order and is not the subject of a declaration by the Governor in Council made pursuant to section 20.
|
|
| 5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois_:
a) en fait la demande;
b) est âgée d'au moins dix-huit ans;
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;
d) a une connaissance suffisante de l'une des langues officielles du Canada;
e) a une connaissance suffisante du Canada et des responsabilités et avantages conférés par la citoyenneté;
f) n'est pas sous le coup d'une mesure d'expulsion et n'est pas visée par une déclaration du gouverneur en conseil faite en application de l'article 20.
|
|
| 14.(5) The Minister or the applicant may appeal to the Court from the decision of the citizenship judge under subsection (2) by filing a notice of appeal in the Registry of the Court within sixty days after the day on which
(a) the citizenship judge approved the application under subsection (2); or
(b) notice was mailed or otherwise given under subsection (3) with respect to the application.
|
14.(5) Le ministre et le demandeur peuvent interjeter appel de la décision du juge de la citoyenneté en déposant un avis d'appel au greffe de la Cour dans les soixante jours suivant la date, selon le cas_:
a) de l'approbation de la demande;
b) de la communication, par courrier ou tout autre moyen, de la décision de rejet.
|
| [12] The applicant was present in Canada for 37 days before her first absence of 97 |
| [13] It is a requirement of paragraph 5(1)(c) of the Act that an applicant for citizenship |
| (respondent) have at least three years (1,095 days) of residence in Canada in the four years immediately preceding the date of the application for citizenship. |
| [14] The jurisprudence of this Court has held that in certain circumstances, periods of |
| time spent away (absences) from Canada can be counted as time to accumulate the required minimum 1,095 days of residence. The absences from Canada can only be counted as periods of residence if an applicant has centralized his or her mode of living in Canada prior to the absences. |
| [15] The applicant, according to her figures, was absent from Canada for 837 days, |
| while the Citizenship Judge determined that the total absence was 798 days in the four year period immediately preceding her application for citizenship. |
| [16] Dube J. of this Court stated in Canada (Minister of Citizenship) v. Lo (January 22, |
| 1999), Docket T-1082-98 at page 2: |
| Physical presence in Canada throughout the period is less essential where a person has in mind and fact settled into or maintained or centralized his or her own ordinary mode of living in this country. That was the case of the student in the Papadogorgakis case (supra), who had established a mode of living in Nova Scotia before going to study in the United States. |
| Unfortunately such is not the case of the respondent here who, obviously, cannot have established a mode of living in Canada in only 7 days. |
| Consequently her application was premature. Now that she has completed her studies and has settled in Vancouver, she may in due course make a fresh application for Canadian citizenship and undoubtedly will be successful. |
| Thus the appeal of the Minister is allowed. |
| [17] I have come to the conclusion that the applicant did not establish a centralized |
| mode of living in Canada in the 37 days she was in Canada before her first absence from Canada. I am therefore not prepared to count her periods of absence from Canada toward the residence requirement in paragraph 5(1)(c) of the Act. As a result, the Citizenship Judge was not in error when she ruled that the applicant had not met the residence requirements of paragraph 5(1)(c) of the Act and refused to grant the applicant citizenship. In my opinion, the Citizenship Judge did not err whether a standard of review of "reasonableness simpliciter" or the "close to correctness" standard set by Lutfy J. (as he then was) in Lam, supra is adopted. |
| [18] In coming to the conclusion that I have reached, I have considered the |
| applicant's activities in Canada, but it is my opinion as noted above, that it is next to impossible to establish a centralized mode of living in Canada in 37 days of residency. I have also considered the fact that the applicant has no other residence except Canada, but in my opinion a centralized mode of living in Canada must be established before departure from Canada in order to have the time spent away from Canada apply to the residency requirement of 1,095 days. |
| [19] Simply put, the applicant's application is premature and I have no doubt that the |
| applicant will become a citizen of Canada when she is able to satisfy the residence requirements of paragraph 5(1)(c) of the Act. |
| [20] The appeal of the applicant is dismissed. |
| [21] IT IS ORDERED THAT the appeal of the applicant is dismissed. |
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, NOVEMBER 22, 2000
REASONS FOR ORDER
| DATED: TUESDAY, NOVEMBER 28, 2000 |
APPEARANCES:
Mr. Marshall Drukarsh
For the Applicant
Mr. Godwin Friday
For the Respondent
SOLICITORS OF RECORD: Green & Spiegel
Toronto, Ontario
Deputy Attorney General of Canada
FEDERAL COURT OF CANADA
Date: 20001128
Docket: T-140-00
Between:
FAY DIAS
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
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