Date: 20000628
Docket: T-1237-99
Ottawa, Ontario, this 28th day of June, 2000
| PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O"KEEFE |
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
MOHD HAITHAM M. HASHAM AL FARRA
Respondent
REASONS FOR ORDER AND ORDER
O"KEEFE J.
[1] This is an appeal by the Minister of Citizenship and Immigration ("Minister") pursuant to subsection 14(5) of the Citizenship Act , 1974-75-76, c.108 (the "Act") from the decision of Citizenship Judge Roberto Roberti, dated May 12, 1999 wherein the Citizenship Judge granted citizenship to Mohd Haitham M. Hasham Al Farra ("respondent").
[2] The Citizenship Judge determined that the respondent had met 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.
[3] The Citizenship Judge determined that the respondent was physically present in Canada for 585 days in the relevant period and therefore had a shortage of 510 days of the required 1,095 days of residence required by the Act.
[4] The respondent came to Canada as a permanent resident on January 27, 1995. He came to Canada with his parents and his sisters. When the respondent came to Canada, he was a fifth year student at the American University in Cairo, Egypt. He was enrolled in a five year degree program in mechanical engineering. On February 11, 1995, the respondent left Canada and returned to Egypt to complete his studies.
[5] The respondent urges the following as indicia of residence:
| 1. He applied for and later received a S.I.N. |
| 2. He established bank accounts in Canada in January, 1995 and maintained the accounts. |
| 3. He obtained a room in a residence from January 22, 1995 to November 1, 1996. When he returned to Cairo to study, he left the remainder of his belongings in the room. |
| [6] According to the respondent, his absences from Canada are as follows: |
Date
|
Where
|
Reason
|
Number
of Days Absent
|
| Feb. 11/95-Aug. 5/95
|
Egypt
|
Study
|
175
|
| Aug. 21/95-Jan. 16/96
|
Egypt
|
Study
|
148
|
| Jan. 30/96-June 13/96
|
Egypt
|
Study
|
134
|
| June 28/96-Oct. 27/96
|
Egypt
|
Study
|
121
|
| Oct. 14/97-Oct. 19/97
|
U.S.A.
|
Business
|
4
|
| Dec. 10/97-Jan. 30/98
|
Egypt
|
Business
|
51
|
| |
|
TOTAL
|
633
|
| [7] The Citizenship Judge"s calculation of the number of days absent was 639. |
| [8] The respondent returned to Canada after completing his studies on October 27, |
1996. He stated that he then continued to maintain residence in Canada by:
| 1. Leasing his second residence and residing there from November 1, 1996 to August 31, 1998. |
| 2. Purchasing computer, household goods and furniture for his residence. |
| 3. Obtaining a telephone line. |
| 4. Filing income tax returns for 1995, 1996, 1997 and 1998. |
| 5. Obtaining a library card. |
| 6. Continuing to attend prayer services. |
| 7. Obtaining Petro Points card. |
| 8. Obtaining a Visa card. |
| 9. Obtaining a video membership. |
| 10. Obtaining a Bell Canada calling card. |
| 11. Obtaining a fitness club membership. |
| 12. Obtaining an Ontario driver"s licence. |
| 13. Purchasing a car on July 5, 1997. |
| [9] After completion of his degree, the respondent upgraded his education and started |
his own business. In November, 1996, the respondent and his father incorporated a company.
Issue
| [10] Did the Citizenship Judge err in finding that the respondent met the residence |
requirements of paragraph 5(1)(c) of the Citizenship Act?
Law
| [11] Subsection 5(1) of the Act 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.
|
|
| [12] 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. |
| [13] 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 prior to the absences. |
| [14] The respondent, according to his figures, was absent from Canada for 633 days, |
| while the Citizenship Judge determined that the total absence was 639 days in the four year period immediately preceding his application for citizenship. |
| [15] 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. |
| [16] I have come to the conclusion that the respondent did not establish a centralized |
| mode of living in Canada in the 16 days he was in Canada before his first absence from Canada. I am therefore, not prepared to count his periods of absence from Canada toward the residence requirement in paragraph 5(1)(c) of the Act. As a result, the Citizenship Judge made a reviewable error when he ruled that the respondent had met the residence requirements of paragraph 5(1)(c) of the Act and granted the respondent citizenship. In my opinion, the Citizenship Judge erred whether a standard of review of "reasonableness simpliciter" or the "close to correctness" standard set by Lutfy J. (as he then was) in Lam v. Canada (1999) 164 F.T.R. 177 (F.C.T.D.) is adopted. |
| [17] I have noted the steps taken by the respondent after he completed his studies but |
| these steps were not completed before his first absence. |
| [18] Simply put, the respondent"s application is premature and I have no doubt that the |
| respondent will become a citizen of Canada when he is able to satisfy the residence requirements of paragraph 5(1)(c) of the Act. |
| [19] The appeal of the Minister is allowed. |
| [20] IT IS ORDERED that the appeal of the Minister is allowed. |
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