Conta v. Canada (Minister Of Citizenship And Immigration), 2001 FCT 953

Date: 20010828

Docket: T-2393-00

Neutral citation: 2001 FCT 953

BETWEEN:

                                                       ELENA VIERU CONTA

                                                                                                                                            Applicant

                                                                        - and -

                      THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                                    REASONS FOR ORDER

NADON J.

[1]                 The applicant, Elena Vieru Conta, appeals from a decision of Citizenship Judge Arthur Miki, dated October 25, 2000, whereby Judge Miki refused the applicant's application for citizenship.

[2]                 Specifically, Judge Miki concluded that the applicant did not meet the residency requirement prescribed at paragraph 5(1)(c) of the Citizenship Act (the "Act"), which reads as follows:

[3]                 Paragraph 5(1)(c) of the Act requires a person seeking Canadian citizenship to reside in Canada for three out of the four years immediately preceding his or her application for citizenship.

[4]                 The applicant, a citizen of Switzerland, was born in Moscow on January 29, 1957. She was landed in Canada on February 26, 1998. She submitted her application for Canadian citizenship on March 28, 2000, and Judge Miki, on October 25, 2000, rejected her application.

[5]                 The applicant is considerably short of the number of days required to satisfy the residency requirement of 1095 days. This shortfall, according to the applicant, is attributable to the following reasons:

1.         the fact that her husband, now a Canadian citizen, is an orchestra conductor who has difficulty finding employment in Canada and must work abroad, and hence, the applicant has had no choice but to travel and live with her husband;

2.         the fact that she had to spend a considerable amount of time in Romania to care for her ailing mother.

[6]                 In concluding against the applicant, the Citizenship Judge made the following remarks:

In regard to your application for Canadian Citizenship I regret to inform you that your application is not approved.

On October 25, 2000, you appeared before me for a hearing of your application for Canadian Citizenship.

I found that you met all of the requirements for citizenship set out in the Citizenship Act, except the requirement of residence. Under subsection 5(1)(c) of the Act, an applicant is required to have accumulated at least three years of residence in Canada within the four years immediately preceding his or her application.

The reason for this residency requirement is clearly stated in the Federal Court of Appeal decision involving RE: POURGHASEMI (Bearing File no. T-80-92) where Justice Muldoon stated:

Those who would throw in their lot with Canadians by becoming citizens must first throw in their lot with Canadians by residing among Canadians, in Canada, during three of the preceding four years, in order to Canadianize themselves. It is not something one can do while abroad, for Canadian life and society exist only in Canada and nowhere else.

Also, please note the Parliament of Canada allowed a four year period within which an applicant could establish the three years of residency. This was done in order to allow for some absences during that four year period. In RE: KOO (Bearing File no. T-20-92) Justice B. Reed comments upon the intention of Parliament in setting this period:

The requirement of three year residence within a four year period seems to have been designed to allow for one year's physical absence during the four year period. Certainly the debates of the period suggest that physical presence in Canada for 1095 days was contemplated as a minimum.

At the hearing, you expressed your hope that your residency days could be explained to the Court's satisfaction. No doubt you are aware that under special circumstances, persons have been deemed to satisfy the intent of the residency requirement despite lengthy physical absences from Canada.

I have certainly considered the following information that is either in your file or was shared with me at your hearing.

Your application was filed on March 28, 2000 and therefore the period of 4 years under consideration date back until March 28, 1996. You had initially entered Canada on temporary status on August 31, 1989. You obtained permanent residence status on February 28, 1998.

Initially, you left Canada on June 24, 1997 to be with your son and husband who found employment as an orchestra conductor in Europe. Since that time you have returned to Canada on two occasions for a period of approximately 30 days. The first occasion was to receive permanent status. Otherwise you have lived outside of Canada. Although you have stored your belongings here as you plan to return to Canada, you have not centralized your mode of living here.

In total during the past 4 years you have spent 252 days in Canada, and 858 outside of Canada.

In my opinion you have not spent enough time in Canada to participate fully in Canadian life and I am unable to approve your application for citizenship. I believe you will make a fine citizen one day, but at this time I am unable to modify the requirements to the degree necessary in your case.

I have considered and decided against making an affirmative recommendation under Subsection 5(3) or 5(4) of the Act, especially since there was no evidence of any health disability, or any special or unusual hardship, or services of an exceptional value to Canada.

Pursuant to subsection 14(3) of the Citizenship Act, you are therefore, advised that, for the above reasons, your application for citizenship is not approved.

[7]                 In my view, in so concluding, the Citizenship Judge made no reviewable error. For the reasons that I gave in Zhang v. Canada (M.C.I.), [2000] F.C.J. No. 1943 (Q.L.), Docket T-213-00, I am of the view that this appeal must be dismissed.

[8]                 As I stated in paragraph 9 of my Reasons in Zhang, supra, there may well be cases where an applicant for citizenship, who has not spent three years in Canada, may nonetheless have established his or her residence in this country so as to allow him or her to accumulate days, even though these are spent abroad. However, the present case is not, in my view, such a case.

[9]                 The Citizenship Judge concluded that the applicant had not spent enough time in Canada to participate fully in Canadian life and, as a result, he advised her that he could not approve her application. In my view, on the facts before him, the Citizenship Judge did not make any error in so concluding. Although I have considerable sympathy for the applicant, and believe that she would become an outstanding citizen of this country, of whom we would all be proud, that is obviously not a ground sufficient for me to allow her appeal.

[10]            It is clear from the Act that Parliament intended that future citizens spend physical time in this country before making their application. It is also clear, in my view, that the applicant, for reasons which are in part beyond her control, has not centralized her mode of living in Canada. She obviously loves this country and would like to live here if she and her husband could find suitable employment in their chosen professions. Be that as it may, the plain fact is that the applicant has not met the residency requirement and, consequently, she cannot yet become a Canadian citizen.

[11]            It is unfortunate that the applicant, who was granted permanent residence status in October of 1993, was not able to return to Canada in time before her grant of permanent residence expired. As a result, the time she spent in Canada between August 31, 1989 and the fall of 1993 could not count, except in a limited way, in respect of the application for Canadian citizenship which she made on March 28, 2000.

[12]            This appeal raises another issue, namely, that Judge Miki should have recommended a grant of citizenship pursuant to subsection 5(4) of the Act. That provision reads as follows:

[13]            In regard to that issue, Judge Miki indicated in his letter of refusal that he could not make an affirmative recommendation, since there was no evidence of any health disability, any special or unusual hardship, or services of an exceptional value to Canada.

[14]            Again, I am of the view that the applicant cannot succeed since, as I held in Zhang, supra, this Court is without jurisdiction to recommend to the Minister that she grant citizenship to the applicant, nor can this Court direct the Citizenship Judge to make such a recommendation to the Minister.

[15]            For these reasons, unfortunately for the applicant and with regret on my part, I must dismiss her appeal.

"Marc Nadon"

                                                                                                      J.F.C.C.                       

Toronto, Ontario

August 28, 2001

                                                               FEDERAL COURT OF CANADA

                   Names of Counsel and Solicitors of Record

DOCKET:                                                            T-2393-00

STYLE OF CAUSE:                                           ELENA VIERU CONTA

                                                                                                     Applicant

- and -

THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

                                                                                                 Respondent

DATE OF HEARING:                           TUESDAY, AUGUST 21, 2001

PLACE OF HEARING:                                      WINNIPEG, MANITOBA

REASONS FOR ORDER BY:                          NADON J.

DATED:                                                                TUESDAY, AUGUST 28, 2001

APPEARANCES:                                              Elena Vieru Conta

On her own behalf

Nalini Reddy

                                                   For the Respondent

SOLICITORS OF RECORD:                       Elena Vieru Conta

c/o Dr. R. Katz

14 Quincy Drive

Regina, Saskatchewan

S4S 6L8

For the Applicant

Morris Rosenberg

Deputy Attorney General of Canada

Winnipeg, Manitoba

For the Respondent

FEDERAL COURT OF CANADA

Date: 20010828

Docket: T-2393-00

BETWEEN:

ELENA VIERU CONTA

                                                                                                   Applicant

- and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

                                                                                               Respondent

REASONS FOR ORDER