Date: 19981104
Docket: T-781-98
Ottawa, Ontario, the 4th day of November 1998
| Present: The Honourable Mr. Justice Pinard |
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
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Appellant
- and -
CLAUDIA JEANET BARRERA BERNAL
Respondent
JUDGMENT
The appeal from the decision of a Citizenship judge rendered on March 2, 1998 is allowed, the decision in question is set aside and the respondent"s application for citizenship is denied.
Certified true translation
Bernard Olivier
Date: 19981104
Docket: T-781-98
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
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Appellant
- and -
CLAUDIA JEANET BARRERA BERNAL
Respondent
REASONS FOR JUDGMENT
PINARD J.:
[1] This is an appeal filed a few days prior to the coming into force, on April 25, 1998, of the new Rules of this Court. It is therefore necessary to apply the old rules and consider the matter de novo (see Chan, T-2842-96 (May 25, 1998), Dai (T-803-98 (September 25, 1998) and Lok, T-2843-96 (June 19, 1998)).
[2] The appeal, which has been brought pursuant to subsection 14(5) of the Citizenship Act (the Act), is from a decision of a Citizenship judge rendered on March 2, 1998, granting the respondent Canadian citizenship.
[3] The respondent, who was born in Colombia on December 15, 1964, has been a permanent resident of Canada since August 2, 1993. She came to Canada in the first place to take a master"s degree in linguistics at Laval University. However, she was absent from Canada between July 28, 1994 and August 14, 1997, having being hired as a cooperant by CUSO, a Canadian international cooperation organization funded largely by CIDA. CUSO sent her with her husband on an international cooperation mission to Colombia. The respondent was also absent from Canada from December 11, 1992 to January 12, 1993, while sightseeing in Colombia, from December 30, 1993 to January 13, 1994 while sightseeing in Mexico, and from December 27, 1994 to January 21, 1995 while sightseeing in Brazil. Upon her return to Canada, after her contract with CUSO, she went back to her studies, as planned. Her husband and her son are Canadian.
[4] The issue here involves the application of paragraph 5(1)(c) of the Act, which states:
| 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; |
(Emphasis added.)
|
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. |
(Mon emphase.)
|
[5] My colleague, Muldoon J., in Re Pourghasemi (1993), 19 Imm. L.R. (2d) 259,1 articulated the underlying objectives of paragraph 5(1)(c) of the Act, at page 260:
. . . 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." 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 (1992), 59 F.T.R. 27 (T.D.), in different factual circumstances, of course.
[6] In the case at bar, during the relevant four-year period preceding July 30, 1996, the date of her application for citizenship, the respondent was physically present in Canada for only some 351 days, or 744 days less than the 1,095 days needed to meet the residency requirements in paragraph 5(1)(c) of the Act.
[7] According to some of the cases, an applicant for Canadian citizenship need not necessarily be physically present in Canada throughout the 1,095 days where there are special or exceptional circumstances. It is my view, however, that excessively lengthy, albeit temporary, absences from Canada during this minimum period, as is the case here, run counter to the objective contemplated by the residency requirements under the Act. As it is, the Act does allow a person who was legally admitted to Canada as a permanent resident not to reside in Canada for one of the four years immediately preceding the date of his or her application for citizenship.
[8] Thus, notwithstanding the sympathy I feel for the respondent"s situation, I conclude that she has failed to meet the residency requirements provided under the Act. Accordingly, the appeal shall be allowed, the Citizenship judge"s decision is set aside and the application for citizenship is denied.
YVON PINARD
J.
OTTAWA, ONTARIO
November 4, 1998
Certified true translation
Bernard Olivier
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE: MCI v. CLAUDIA JEANET BARRERA BERNAL |
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: October 19, 1998 |
REASONS FOR JUDGMENT OF PINARD J.
APPEARANCES:
| Édith Savard for the appellant |
| Jacques Duchastel for the respondent |
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada
| Ottawa, Ontario for the appellant |
ALEXANDRE de MONTROUGE
| Montréal, Quebec for the respondent |
__________________
1 See also the decision of Muldoon J. in Chen, T-2879-96 (January 21, 1998).
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