Date: 20000926
Docket: T-2213-99
BETWEEN :
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
IGOR A. KOVARSKY
Respondent
REASONS FOR ORDER
DUBÉ J. :
[1] This appeal is from the Minister of Citizenship and Immigration ("the Minister") seeking to reverse a decision of the Citizenship Judge who granted citizenship to the respondent ("Mr. Kovarsky").
1. Facts
[2] Mr. Kovarsky initially entered Canada on an employment authorization on February 27, 1996, and was admitted for permanent residence on November 24, 1996. On January 11, 1999, he made an application for citizenship. The hearing was held on October 21, 1999, and the Citizenship Judge found that Mr. Kovarsky met all requirements for citizenship. He recognized that Mr. Kovarsky had a shortage of 585 days from the minimum requirement of three years of residence in Canada out of the four years preceding the application.
[3] After reviewing the evidence, the Citizenship Judge concluded that Mr. Kovarsky had established a residential base at Saskatoon, Saskatchewan, and centralized a mode of living in Canada. The Citizenship Judge noted that Mr. Kovarsky works for Cameco Corporation which takes him to Kyrgyzstan at regular intervals. When he is there, he stays in a company owned guest house with other Canadians.
2. The Minister's Submissions
[4] The Minister notes that the Citizenship Judge relied on the well-known Papadogiorgakis1 case for his decision rather than the approach used in Re: Pourghasemi2 which applies a stricter interpretation of the term "residence". The Minister also relies on the Koo (Re)3 decision wherein Madame Justice Reed outlined six steps to be followed when reviewing these applications. The Minister claims that Mr. Kovarsky does not meet the fifth step: his absences are not a temporary situation.
3. The Respondent's Submissions
[5] Mr. Kovarsky was born in the City of Taganrog, Russia. He commenced employment with Cameco Corporation in 1992. Cameco Corporation, a Canadian Corporation with its head office in Saskatoon, Saskatchewan, explores for uranium and gold in various parts of Canada and other countries. He was employed by Cameco from 1992 to 1998 as Senior Advisor to the President of Kumtor Operating Company ("KOC"), which develops a gold mine in Kyrgyzstan. formerly part of the Soviet Union. Since 1998, he has acted as the Director of Government, Parliament and State Institution relations for KOC.
[6] Mr. Kovarsky, his wife and two children relocated in Saskatoon, Saskatchewan, in 1995 where he has established his home. His wife and children are now Canadian citizens. The Citizenship Judge determined that in spite of his absences, he met the requirements for citizenship based on the Papadogiorgakis decision.
[7] Mr. Kovarsky claims that he has clearly and decisively met the Papadogiorgakis criteria in establishing a substantial connection with Canada despite his travels abroad. His absences were solely and directly connected to his employment. He has no family nor residential connections either in Russia, where he was born, nor in Kyrgyzstan where he stays in a company guest house.
4. Analysis
[8] It is well known that there are two schools of thought with reference to requirements of residency under paragraph 5(1)(c) of the Citizenship Act. The judicial interpretation based on the Papadogiorgakis decision is to the effect that continuous physical presence is not essential, provided the applicant has abandoned all residential links to his former country and has clearly established a mode of living here in Canada. On the other hand, the strict interpretation for residency calls for continuous physical presence. Obviously, the legislation is not absolutely clear. If Parliament amended the Citizenship Act and added the words "physically present", the matter would be settled. But, it has yet to do so.
[9] In the instant case, both parties are agreed that Mr. Kovarsky would be a valuable addition to Canada. In a letter dated January 11, 1999, addressed to Citizenship and Immigration Canada, the Chief Executive Officer of Cameco Corporation described in much details the contribution of Mr. Kovarsky to his company. He concluded that "Mr. Kovarsky is a valued employee and provides Cameco with a unique combination of education, experience and expertise".
[10] The First Secretary and Consul at the Canadian Embassy in Almaty, Kazakhstan, in a letter dated July 16, 1996, described the role played by Mr. Kovarsky and concluded with the following paragraph:
| Over the past year, Mr. Kovarsky has divided his advisory work between Kumtor's office in Bishkek and Cameco headquarters in Saskatoon, where his family currently resides. It is the Embassy's understanding that he has applied for permanent residence in Canada, and the Embassy wishes to record its support for this application on the basis of Mr. Kovarsky's commitment to Canada and his ongoing contribution to the promotion of Canadian activities abroad. |
[11] I have on several occasions expressed my views on similar applications for citizenship and I can do no better but to repeat what I said in the matter of Siu Chung Hung4:
| As I have stated on many occasions, residency in Canada for the purposes of citizenship does not imply full-time physical presence. The place of residence of a person is not where that person works but where he or she returns to after work. Hence, an applicant for citizenship who has clearly and definitively established a home in Canada with the transparent intention of maintaining permanent roots in this country ought not to be deprived of citizenship merely because he has to earn his livelihood and that of his family by doing business offshore. The most eloquent indicia of residency is the permanent establishment of a person and his family in this country. |
[12] Thus, I cannot fault the Citizenship Judge for having followed the residency test established in Papadogiorgakis. Consequently, the appeal is dismissed. Counsel for Mr. Kovarsky asked for costs. Costs are very seldomly allowed on citizenship appeals. This appeal is not particularly different from most residency appeals.
OTTAWA, Ontario
September 26, 2000
Judge
__________________
1 [1978] 2 F.C. 208 (F.C.T.D.).
2 (11 March 1993), T-80-92 (F.C.T.D.).
3 (3 December 1992), Vancouver, F.C.J. No. 1107, T-20-92 (F.C.T.D.), page 9.
4 T-384-95, January 26, 1996 (F.C.T.D.).
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