Date: 20001109
Docket: T-565-98
Between :
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Appellant
- and -
BOGOLJUB KARIC
Respondent
Docket: T-596-98
Between :
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Appellant
- and -
MILANKA KARIC
Respondent
REASONS FOR JUDGMENT
PINARD, J. :
[1] These are appeals by the Minister of Citizenship and Immigration (the appellant) of the oral decision rendered by Citizenship Judge W. Borosa on March 12, 1997, approving the respondents' applications for Canadian citizenship.1 The appellant maintains that the Citizenship Judge erred in determining that the respondents had satisfied the residency requirements set out in paragraph 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29, as amended, (the Act) which reads:
| 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; |
|
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. |
|
[2] The two respondents are citizens of Yugoslavia. They arrived in Canada as permanent residents on February 8, 1993 and applied for Canadian citizenship on or about June 9, 1996. During the relevant period set out in paragraph 5(1)(c) of the Act, the respondent Bogoljub Karic was physically present in Canada for 163 days, leaving him short 932 days from the required 1,095 days. His wife, the respondent Milanka Karic, was physically present in Canada for 153 days, leaving her short 945 days from the required 1,095 days. The respondent Mr. Karic, generally accompanied by his wife the respondent Mrs. Karic, was then absent from Canada for business reasons.
[3] My colleague, Mr. Justice Muldoon, in Re Pourghasemi (1993), 19 Imm.L.R. (2d) 259 at 260, sets out the underlying objectives of paragraph 5(1)(c) of the Act:
| . . . to insure 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, T-20-92, on December 3, 1992 [reported (1992), 59 F.T.R. 27, 19 Imm.L.R. (2d) 1], in different factual circumstances, of course. |
[4] This Court has held that a proper interpretation of paragraph 5(1)(c) of the Act does not require physical presence in Canada for the entire 1,095 days of residence prescribed therein when there are special or exceptional circumstances. I consider, however, that actual presence in Canada remains the most relevant and crucial factor to be taken into account for establishing whether or not a person was "resident" in Canada within the meaning of the provision. As I have stated on many occasions, too long of an absence from Canada, albeit a temporary one, during that minimum period of time is contrary to the spirit of the Act, which already allows a person who has been lawfully admitted to Canada for permanent residence not to reside in Canada during one of the four years immediately preceding the date of that person's application for citizenship.
[5] Therefore, given the substantial absences of the respondents from Canada in the present case, I find that the Citizenship Judge's conclusion that they met the residency requirements of paragraph 5(1)(c) of the Act is totally unreasonable and the result of an erroneous application of the statutory provision.
[6] The appeals are therefore allowed and the oral decision of the Citizenship Judge, dated March 12, 1997, is quashed on the ground that at the time the respondents applied for Canadian citizenship, they did not meet the residency requirements of paragraph 5(1)(c) of the Act. Consequently, the respondents' applications for Canadian citizenship are denied.
JUDGE
OTTAWA, ONTARIO
November 9, 2000
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1 This is a proceeding by way of a hearing de novo pursuant to rule 912 of the old Federal Court Rules, C.R.C. 1978, c. 663.
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