Singh v. Canada (Minister of Citizenship and Immigration), docket T-2040-98

Date: 19990526

Docket: T-2040-98

BETWEEN:

     BALJIT SINGH

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR JUDGMENT

MacKAY J.

[1]      The applicant appeals a decision of a Citizenship Judge, pursuant to s. 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 (the "Act"). By that decision, dated September 1, 1998 it was determined that the applicant had not met the residency requirements under paragraph 5(1)(c) of the Act and his application for citizenship was refused.

[2]      The applicant, a native of India, arrived in Canada in December 1989 as a visitor. In May 1990 he received a student visa and in June of that year he moved to Guelph where he was enrolled at the university in graduate studies in veterinary medicine. He received a Ph.D. degree in October 1994 and from September of that year until the following August he was a lecturer at the University of Prince Edward Island in veterinary medicine.

[3]      In January of 1995 he became a permanent resident. In June of that year he completed requirements of the National Examining Board and was awarded a Certificate of Qualification from the Canadian Veterinary Medical Association. After the year of teaching at UPEI he accepted a post doctoral fellowship in animal retrovirology at Texas A & M University in the United States, which fellowship commenced in September 1995 and lasted until August 1997. He then returned to Canada and while here, in October, he filed his application for citizenship. Unable to find employment in Canada then, though he had been looking both before and after his return to Canada, he accepted a second post doctoral fellowship at Columbia University in New York, and he continued his studies in retrovirology there commencing from October 1997. In December of that year he returned to Canada to write examinations for the College of Veterinarians of Ontario and he was admitted to the college from December 1997. While at Columbia he continued to look for opportunities in Canada and in June 1998 he was offered a short term but renewable appointment at the Centre for Animal and Plant Health of the Canadian Food Inspection Agency in Charlottetown, a position which he assumed in July 1998.

[4]      His application for citizenship, filed October 15, 1997, was considered in August, 1998, and his application was then rejected by the Citizenship Judge's decision letter of September 1. This appeal was initiated thereafter. When the matter was heard in May of 1999 the applicant was serving as an associate professor of veterinary medicine at the University of Saskatchewan in Saskatoon, a position he assumed in January of 1999. Counsel for the respondent objected to admission of the last fact, which was not before the Citizenship Court Judge at the time of the decision in question and which is not included in the applicant's affidavit in support of his appeal. Nevertheless, I admitted the fact in evidence, relying on the applicant's counsel's statement of the fact, without the necessity of testimony from the appellant on the matter. It is a fact and while I do not attach great weight to it, it is consistent with the applicant's claim to have intended some years ago that his life be centred in Canada.

[5]      There was some difference between counsel about matters properly before this Court on the appeal. In my opinion the evidence, as in the case of any other proceeding by application, is that provided by affidavit by or on behalf of the parties. I note that in this case no affidavit was filed on behalf of the respondent although the respondent's record contained copies of documents from the Citizenship Court records, certified as true copies of originals by a covering letter, unsworn, from an officer of Citizenship and Immigration Canada.

[6]      In the letter of decision the Citizenship Judge said, in part:

I found that you met all of the requirements for citizenship set out in the Citizenship Act, except for the requirement of residence. Under paragraph 5(1)(c) of the Act, an applicant is required to have accumulated at least three years of residence in Canada within the four years immediately preceding his or her application.

According to the evidence in your file and presented to me at your hearing, you are 651 days short of the required 1095 days needed to meet residence requirements. Each day of residence in Canada after lawful admission for permanent residence counts as one day. Each day before lawful admission counts as one-half day. The calculation of residence cannot go beyond the four-year period before the date of application. In these circumstances, you had to satisfy me, in order to meet the residence requirements, that your absences from Canada, could be counted as a period of residence in Canada.

Federal Court precedents require that, to establish residence, an individual must show, in mind and in fact, a centralization of his or her mode of living in Canada. If such residence is established, absences from Canada do not affect this residence, as long as it is demonstrated that the individual left for a temporary purpose only and maintained in Canada some real and tangible form of residence.

According to the evidence on file and that presented to me at your hearing, you were landed in Canada January 20, 1995 and applied for Citizenship on October 15, 1997. You became a visa student in May of 1990 at the University of Guelph and graduated with a PHD in Veterinarian Medicine in August of 1994. In September of 1994 you went to the University of Prince Edward Island as a lecturer in Veterinarian Medicine. In August of 1995 you accepted a position at Texas Agriculture and Military where you stayed until August 1997. In September of 1997 you accepted a position in the U.S. at Columbia University and remained there until July 1998.

During your extended absences from August 1995 to July of 1998 I note the following:

- you applied for and received returning resident documents,

- you stored your books and few belongings at a friends house in Guelph,

- by your own admission you returned to Canada about 4 times during the period from August 1995 to August 1997 (about 20 days in Toronto) and about once per month from September 1997 to July 1998 (2 or 3 days per month),

- you have a P.E.I. health card and Canadian banking records.

In considering the above information it is my opinion that during the period between August 1995 and October 1997 you did not have a residence in Canada and no family connection or ties in Canada.

In short, I conclude that you had not established and/or maintained a residence and/or centralized your way of life in Canada, in mind and in fact, during the four year period preceding your application.

[7]      There is no dispute about the calculation by the Citizenship Judge of the days of physical presence in Canada, and of absences of the applicant from Canada, in the equivalent of three years of the four years before the date of the application for citizenship, i.e., 444 days in and 651 days out, of Canada. Those days were calculated, in accord with subparagraphs 5(1)(c)(i) and (ii), on the basis of one day for every day the applicant was resident in Canada after his lawful admission for permanent residence, and one-half day for each day in the four-year period that he was resident in Canada before that time.

[8]      Counsel for the parties agree that the purpose of the residence requirement is to ensure that, as the respondent's memorandum states, an applicant for citizenship can become familiar with Canada and become integrated into Canadian society. That purpose has been stated by Mr. Justice Muldoon in Re: Pourghasemi:¹

It is clear that the purpose of s. 5(1)(c) is to ensure that everyone who is granted precious Canadian citizenship has become, or at least has been compulsorily presented with the everyday opportunity to become, "Canadianized." ...So those who would throw in their lot with Canadians by becoming citizens must first throw in their lot with Canadians by residing among Canadians, in Canada, during three of the preceding four years, in order to Canadianize themselves. It is not something one can do while abroad, for Canadian life and society exist only in Canada and nowhere else.

[9]      Counsel for the parties also agree that the decision of Mr. Justice Lutfy in Lam v. Canada (Minister of Citizenship and Immigration)² sets the standard appropriate for review, i.e., correctness, in considering the decision of the Citizenship Court Judge in dealing with an appeal pursuant to s-s. 14(5) of the Citizenship Act. Under the Federal Court Rules, 1998,³ an appeal is initiated by an application pursuant to Rule 300. I agree with Lutfy J. that such an application is not an application for judicial review pursuant to s. 18.1 of the Federal Court Act, and that the standard he identifies is appropriate for this and other appeals under s-s. 14(5) of the Act.

[10]      In the application of the standard of correctness in Lam, Lutfy J. acknowledged that jurisprudence of this Court, in dealing with citizenship appeals in regard to residence requirements, that were previously heard de novo, may be perceived as falling into two or more classifications. One of those treats residence under the Act, which is not defined by the statute, as virtually meaning physical presence, so that counting of days of physical presence in Canada has considerable significance. Another, based upon the decision of Mr. Justice Thurlow in Re Papadogiorgakis,⁴ recognizes "residence" as the equivalent of having centred one's life in a place, to which one habitually returns, and once that is established in Canada the days of absence from the country, while not unimportant, do not, in themselves, have significance for determining residence, unless absence indicates the intent to abandon a residence earlier established in Canada.

[11]      The approach Lutfy J. suggests for review of the Citizenship Judge's decision is to assess whether the judge has made reference to one or other of these classifications of jurisprudence, and if that is done, whether that is then applied correctly to the facts of the case. If so there is no basis for intervention of the Court. His Lordship stated in part:⁵

...where citizenship judges, in clear reasons which demonstrate an understanding of the case law, properly decide that the facts satisfy their view of the statutory test in paragraph 5(1)(c), the reviewing judges ought not to substitute arbitrarily their different opinion of the residency requirement. ...

[12]      As quoted earlier, the Citizenship Judge in this case stated the law in his decision as follows:

Federal Court precedents require that, to establish residence, an individual must show, in mind and in fact, a centralization of his or her mode of living in Canada. If such residence is established, absences from Canada do not affect this residence, as long as it is demonstrated that the individual left for a temporary purpose only and maintained in Canada some real and tangible form of residence.

Having so stated, in my opinion the judge then erred in application of the law to the facts in this case, in a number of respects. I say this with respect because this is not a routine case.

[13]      In referring to the history of the appellant's time in Canada the decision ignores the length and the quality of the appellant's time in Canada. In the period from January 1990 to October 15,1997, the applicant lived in Canada for more than five and one-half years, and for two years in Texas. In light of the purpose of the statutory requirement for residence, i.e., to provide an opportunity to become familiar with Canada and be integrated into Canadian society, it is not to be ignored that while living in Canada in that period in question, although living mainly in university residence facilities, the appellant was recognized at Guelph with awards for his academic work, for his contribution to assisting new international students, for his excellence in teaching, for his contribution to student life, for his community service, and as a vice president of the graduate student association and as a graduate student representative in the university's senate. The year of teaching at U.P.E.I. would not have been without involvement in university and community life there. In my opinion the appellant made good use of the opportunity available, in the more than five years he was in Canada before continuing his studies in the United States, to learn about Canada and to participate in the social life of this country.

[14]      No consideration appears to have been given to the fact that not later than December 1994, when he was granted a visa to enter Canada as a permanent resident, a status confirmed when he arranged to be landed on January 20, 1995 at St. Stephen, N.B., the appellant had determined to make his life in Canada. He had effectively cut his ties to India, his native country, which at that time he had only visited once, to attend a family wedding, after his first arrival in Canada. In my opinion, the appellant had centred his life in Canada, and had done so well before he left to continue his research studies in the fall of 1995.

[15]      The temporary nature of his absences from Canada, in particular the nature and purpose of his post doctoral research fellowship in the United States does not appear to have been considered. In referring to these the judge's decision notes:

...In August of 1995 you accepted a position at Texas Agriculture and Military where you stayed until August 1997. In September 1997 you accepted a position in the U.S. at Columbia University and remained there until July 1998.

The "positions" referred to were temporary, as was the appellant's admission to the United States on temporary visas to undertake research studies on both occasions. That temporary nature, and his right to return to Canada as a resident after completing his post doctoral fellowship at Texas A & M, was acknowledged by the respondent's department which issued him a permit to return as a resident of Canada.

[16]      Advanced study and research, in post doctoral studies, is a virtual necessity for one interested in an academic or research career in Canada in medical or veterinary sciences, and opportunities for such advanced studies, limited in duration, are more readily available in the United States than in this country. That appears to have been Dr. Singh's objective in undertaking advanced studies in the United States, with, as he avers in his affidavit, the continuing intention to return to Canada and to find, as he did, an opportunity for research in his field. His affidavit sets out in part:

The reason for my temporary move was to obtain advanced research training in my area of specialization. ...Canadian universities and research institutions strongly encourage diversified research experience in international research laboratories. There is no research facility similar to Texas A & M in which to train in animal retrovirology in Canada. So, to pursue my career in Canada, it was necessary to be temporarily absent. I believe this temporary absence contributed to giving me a well-rounded education that will serve me well in my work here in Canada. ...

[17]      The temporary nature of his absence while undertaking post doctoral studies is also supported by the ties he maintained with Canada while in the United States. He continued banking arrangements in Guelph. He stored most of his personal effects and books at the residence of a friend in Guelph, and he used that residence address as his main continuing address, in Canada, for professional and other purposes. He owned no real property in Canada and until 1997 when his brother and family came to Canada as permanent residents, he had no family in this country. He returned to Canada and to Guelph on four occasions while in Texas, and virtually every month while he was in New York. As earlier noted he returned to Canada in December 1997 for examination and qualification of the Ontario Veterinary College. His base in Canada, at his friend's home in Guelph, is said to be his pied-à-terre in Canada, since so far as he owned worldly possessions, not in regular use, they were situate in Guelph. His ability to establish such a base should be considered in relation to his personal resources, so counsel submits, and he should not be deprived of the opportunity to establish a residence pied-à-terre simply because he has no real property in Canada.

[18]      For the appellant it is urged that he established residence in Canada prior to his temporary absence in the United States, that he intended to return to Canada during and after his temporary absence and he did so on a number of occasions while on his post-doctoral fellowships both while he was in Texas and subsequently in New York, and that he maintained a pied-à-terre in Canada at his friend's home in Guelph during his absence from Canada. He severed his ties with his native India and had centralized his mode of living in Canada since December 1989. He did not abandon his residence in Canada in mind or in fact while on post doctoral fellowships in the U.S., and was issued a returning resident permit while temporarily absent for advanced research and study which would benefit his career, and the country, in Canada, and he maintained banking, financial and professional connections in Canada while temporarily absent.

[19]      It is urged on behalf of the Minister that Dr. Singh voluntarily chose for personal reasons to undertake research studies in the United States and that choice effectively precludes considering him as a resident in Canada during the time spent in those studies. In my view, that is not the whole story for the choice was made after the appellant had established residence in Canada and with a view to enhancing his opportunities for a career in academic or research life in Canada, and the post-doctoral fellowships in the United States were each for a limited term, and with temporary status in that country for purposes of his studies.

[20]      In my opinion, the appellant established residence in Canada within the meaning of paragraph 5(1)(c) of the Act well before leaving for advanced studies in the United States in 1995. He intended to return to Canada after those studies were completed, and he did so. After looking unsuccessfully for employment in Canada in 1997, he accepted a further research fellowship in New York. When an opportunity in his field was available in 1998 he returned to Canada to accept an appointment offered. Throughout the period of his absence from Canada he did not cut his ties to Canada. He maintained a continuing address, his ties with professional colleagues and with friends, and his plans for his future career in Canada, during his absence from this country.

[21]      With respect, the Citizenship Court Judge, in my opinion, failed to correctly apply the law concerning residence requirements under the Act, as he identified it, to the facts of the case before him. In these circumstances, I allow the appeal by Dr. Singh.

[22]      The appellant asks for an order setting aside the decision of the Citizenship Judge, providing for the application for citizenship of the appellant to be approved and directing that costs be awarded to the appellant. An order issues granting the relief as sought.

    

                                         JUDGE

OTTAWA, Ontario

May 26, 1999.

__________________

     ¹      (1993), 62 F.T.R. 122 at 123.

     ²      [1999] F.C.J. No. 410, (March 26, 1999) (F.C.T.D.); subsequently followed in Canada (Minister of Citizenship and Immigration) v. Dumitru, [1999] F.C.J. No. 437 (March 31, 1999) (F.C.T.D.); Canada (Minister of Citizenship and Immigration) v. Chen [1999] F.C.J. No. 424 (April 1, 1999) (F.C.T.D.); Canada (Minister of Citizenship and Immigration) v. Yang, [1999] F.C.J. No. 423 (April 1, 1999); Sio v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 422 (April 1, 1999); Wang v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 439 (April 1, 1999) (F.C.T.D.); and Minister of Citizenship and Immigration v. Lam, [1999] F.C.J., No. 651, April 28, 1999 (F.C.T.D.).

     ³      SOR/98-106.

     ⁴      [1978] 2 F.C. 208 (T.D.).

     ⁵      Supra, note 2 at para. 33.