Date: 19990625
Docket: T-1431-98
BETWEEN:
SAFDAR CHATOO
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION CANADA
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This is an appeal under subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29, as amended (the Act), of a decision of the Citizenship Judge, Nicole Caron, dated may 28, 1998, refusing to grant citizenship to the appellant, Safdar Chatoo, under section 5 of the Act. The applicant filed his application on July 9, 1998. It is therefore governed by the Federal Court Rules, 1998. Under these Rules, citizenship appeals are no longer trials de novo, but instead are now to proceed by way of application based on the record before the Citizenship Judge; see Canada (M.C.I.) v. Cheung (1988), F.C.J. No. 813 (T.D.) per Nadon J.
[2] The applicant was born on May 25, 1954, in Rwanda. He arrived in Canada as an immigrant on the 26th day of February 1993 accompanied by his wife and children. He immediately arranged to set up a business in Canada, bought a home in his wife's name in which they still reside.
[3] The applicant claims he left Canada approximately three months after his arrival and, having set up his dry cleaning business, to return overseas in order to terminate his other affairs. He travelled only twice in 1993 and came back to his family and ongoing business each time.
[4] In 1993, the applicant's business employed approximately ten Canadians. He invested $150,000 and borrowed $80,000 for operating capital.
[5] In September 1993, the applicant's operation was destroyed by fire and his insurance claim for damages is still pending before the Courts.
[6] After the fire, the applicant went into the import-export business which, he claims, entails much travel. He submits in his application for citizenship that he was absent 609 days during the four year period, which means he would be short 243 days to attain the 1095 days required. He submits that after each trip he returned to his family and to his only home in the world.
[7] The applicant has maintained his residence in Canada, paid real estate taxes, School Board bills, insurance and telephone bills, and is still doing so. He has filed income tax returns and paid income tax in this country since 1993. He maintains bank accounts in Canada and has a Quebec driver's licence. His children attend school in Montreal. His wife and five children are all Canadian citizens.
[8] The Citizenship Judge determined that the appellant did not satisfy the criteria in paragraph 5(1)c) of the Act; the appellant has not, during the four year period preceding his application for citizenship, resided in Canada for at least 1095.
[9] The question at issue is the following: Did the Citizenship Judge err in her interpretation of the residency requirement of citizenship as set out in section 5 of the Act?
[10] The applicant alleges that in light of the Government's inaction to clearly define the term residence in the Act or Regulations, I should turn to this Court's decisions for interpretation. He submits that this Court has consistently upheld the liberal interpretation of residency and that it should adopt the same approach in the case at bar. The appellant argues that since this Court has ruled that residency in Canada for citizenship purposes is not strictly limited to actual physical presence, the concept of residence is rather the degree to which an appellant for citizenship settles into, maintains or centralizes his ordinary mode of living in Canada for the required three year period within the four years preceding the date of application.
[11] According to the applicant, a person must demonstrate having established a home in Canada in which he is living and, while outside of Canada, maintained sufficient ties and connections with Canada to suggest continuity of residency.
[12] The respondent submits that, according to the Act, the number of days of residence must be determined by the number of days the appellant was physically present in Canada. The respondent alleges that the fact the legislator authorises an absence of one year within the four year period preceding the application is a clear indication that physical presence is required. The respondent further contends that the well-founded objective of this criterion of residence, which is to ensure that an applicant for citizenship familiarises himself with Canada and integrates himself into Canadian society; this can only be met if the applicant is physically present for the determined amount of time.
[13] The respondent argues that only in special or temporary circumstances can absences be included in the required three year period and only in cases where the appellant has otherwise maintained and centralized his lifestyle in Canada. The respondent submits that although the appellant's family is well established and that all members are now Canadian citizens, he has not, personally demonstrated that he, himself, has centralized his lifestyle in Canada. The respondent alleges that the appellant's absences from Canada were voluntary and for personal reasons; therefore, they cannot be included. In the respondent's opinion, this demonstrates the applicant has not relinquished his past associations. The respondent argues that an individual who applies for Canadian citizenship must provide a minimum of effort; that there is nothing unreasonable about demanding that the applicant physically reside in Canada for a determined period of time.
[14] The respondent emphasizes that the family's home, mortgage and all related taxes and telephone accounts are in the appellant's wife's name. He concludes by contending that the appellant was almost as frequently abroad as he was in Canada and that most of his stays abroad were longer than those in Canada.
[15] The applicant requests that this Court allows the appeal and grant him Canadian citizenship.
[16] Since the word residence remains to be defined in section 5 of the Act, its meaning is still unclear. This Court has rendered many decisions establishing that an actual presence in Canada throughout the specified statutory period is no longer a prerequisite to meeting the residence requirement of the Act. However, this is a question of mixed law and fact in which the importance of physical absence has to be analyzed and determined in each case.
[17] In the case at bar, the appellant has already settled his family and started an import-export business in Canada. His absences abroad, while voluntary, are mostly business related because of its nature. Although the family's home, mortgage and all related taxes and telephone accounts are in the applicant's wife's name, the applicant is the main source of support for his family and he does return to Canada on every possible occasion. Ownership of a home in the wife's name, when it is evident that the applicant has advanced the funds, is certainly not indicative of anything other than what an ordinary prudent businessman may elect to pursue depending on various circumstances. Furthermore, all members of his family are Canadian citizens. The case at bar is almost identical to the case Re: Hung, 28 Imm. L.R. (2d), decided by Mr. Justice Denault in which he granted the applicant Canadian citizenship.
[18] In light of the facts in this case, it would be difficult to conclude that physical presence is the determining factor. Although the applicant has not been physically present for the required three year period within the four years preceding his application, he seems to have settled into, and centralized his ordinary mode of living in Canada.
[19] Though the Citizenship Judge found the absences to vitiate the applicant's ability to obtain citizenship, she offered no reasons, explanations or facts upon which she relied to make this determination. If she is to disagree with the prevailing jurisprudence, she should at least offer a more substantial analysis in order to justify her finding of fact. The decision is completely devoid of any reasonable explanation to make a finding that this applicant should not have his absences count as residency and therefore comply with the statutory requirement.
[20] The facts reveal that the applicant had invested $150,000 in a business in Canada, hired ten Canadians, lost his dry cleaning establishment after a disastrous fire. Because of his knowledge of overseas markets he ventured into the import-export business without ever having established a home elsewhere; his wife and five children always remained in Canada. It should be noted that he originally came from Rwanda and his trips abroad were to numerous countries, other than his country of birth or previous domicile. He clearly had severed all his ties with Rwanda.
[21] For these reasons the appeal is allowed and the Minister should exercise her discretion favourably and grant the applicant Canadian citizenship.
JUDGE
OTTAWA, Ontario
June 25, 1999
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