Date: 19990331
Docket: T-1683-98
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
DORU-OCTAVIAN DUMITRU
Respondent
REASONS FOR ORDER
REED, J.:
[1] This is an appeal by the Minister from a decision of a citizenship judge granting citizenship to the respondent even though he was absent from Canada for 765 days during the four years preceding his application for citizenship. The respondent is a Romanian comedian and actor who returns to Romania frequently to pursue his vocation.
[2] Counsel for the Minister invited me to apply the analysis set out in Re Koo, [1993] 1 F.C. 286 (T.D.), to the evidence in this case, and assess whether the respondent's existence was centred in this country, whether "the quality of his connection with this country demonstrated a primary or priority of residence in Canada (a more substantial connection with Canada than with any other place)." Counsel for the respondent invited me to apply the words of Mr. Justice Dubé in Re Ho (T-2871-96, December 15, 1997):
| 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 the country. |
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| That principle was clearly established by the Associate Chief Justice of this Court, Thurlow J. (as he then was) in the well-known Papadogiorgakis case. [Underlining added.] |
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[3] The citizenship judge's decision read in part:
| After considering the residence questio[n]naire and other items and documentation submitted and through credible declaration of intent by the applicant at the hearing I have concluded that the applicant has established a residential base at Don Mills, Ontario. And a centralized mode of living in Canada on Valley Woods Rd. and the applicant has continued to maintain a residential base and a centralized mode of living in Canada and that during such temporary absences the applicant had no intention or residing elsewhere. |
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| I have decided that the applicant Doru-Octavian Dumitru fully meets the residence requirement of section 5 (1) (c) of the act and within the framework outlined by Associate Chief Justice Thurlow in Re: Papadogiorgakis, No. T-872-78 |
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[4] Until recently citizenship appeals before this Court were by way of hearing de novo. They are no longer such. While they are now appeals, there is no transcript of the interview conducted by the citizenship judge on which the decision under appeal is based. Mr. Justice Lutfy has recently given a comprehensive examination of the factors relevant to an assessment of the standard of review that should be applied: see Kit May Phoebe Lam v. Minister of Citizenship and Immigration (T-1310-98, March 26, 1999). I share his view that that standard is close to the correctness end of the scale. I share his view that the Court should consider whether the citizenship judge properly applied the test that he or she articulated in making the decision that is under appeal.
[5] The citizenship judge in this case relied upon Mr. Justice Thurlow's decision in Re Papadogiorgakis, [1978] 2 F.C. 208 (T.D.). I turn to that decision. Mr. Justice Thurlow explained the test for determining whether absence from Canada should be deemed residence in the country in the following words:
| . . . it is chiefly a matter of degree to which a person in mind and fact settles into or maintains or centralizes his ordinary mode of living with its accessories in social relations, interests and conveniences at or in the place in question. |
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[6] Mr. Dumitru came to Canada in February of 1991. He returned to Romania and then re-entered Canada on July 24, 1991. He sought and obtained refugee status. His passport indicates that he was back in Romania in October 1991. He lived in rented premises in Canada for 5 months of 1991. He stayed with friends in Canada when he was in the country in 1992. It is clear he was back in Romania in the fall of 1992. He was granted admission as a landed immigrant on December 12, 1992. He returned to Romania on May 13, 1993, and remained there until October 1, 1993. Between September 1993 and September 1994 the respondent spent approximately 70 days in Canada, consisting of three separate periods of time the longest of which was 40 days. Since his application for citizenship was filed on September 5, 1997, it is the four years preceding that date (i.e., from September 5, 1993, to September 7, 1997) that is relevant in determining whether he has established and maintained residence in Canada. Mr. Dumitru was not physically present in Canada in September 1993, nor did he own a residence here. (He stayed with friends when he came to Canada.) He had no family here at that time. He stayed with friends in 1992 and 1993. He received $5,175.00 in social assistance in 1993.
[7] From September 1994 to September 1995 he spent approximately 70 days here, comprised of three separate occasions, the longest period being 30 days. In the period between September 1995 and September 1996 he spent longer in Canada than he had previously, as he did from September 1996 to September 1997. At all times he has lived in rented premises. He married in the fall of 1996 and his wife now accompanies him.
[8] The submissions made on his application for citizenship state that all his absences after October 14, 1993, were for professional reasons, that he is a Romanian actor and entertainer who, in order to ply his trade, must be seen where there is a large Romanian speaking population, that he has been "a regular fixture on Romanian television and stage since 1990", that "[h]e was one of the few actors, because of his status within the country, not to be bothered by the succession of governments that have replaced the Communists governments in that country", and "[i]t is not overstating the point to suggest that Mr. Dumitru is very famous in Romania and has done much to assist in the democratization of that country . . ." The submission concludes by indicating that Mr. Dumitru has taken a brief hiatus from his career in order to fulfil the time requirements for citizenship:
| Mr. Dimitru has taken a brief hiatus from his career in order to fulfil his time [residency] requirements for Canadian citizenship. Now he must plan his future tours in Romania. . . . |
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[9] I agree with counsel for the applicant that it is strange that the respondent continues to work abroad in a job that according to his tax records renders him little or no income, while he asserts that the country to which he has the closest ties is Canada. The citizenship judge stated that despite his frequent absences from the country, he performs frequently in Canada and has performed free of charge for many Canadian organizations. The citizenship judge referred to the documentary evidence on the record to support that conclusion. The only evidence on the record is that he, sometimes accompanied by his new wife, performed on about four occasions in the spring of 1996, and once in October of that year, giving short performances (one hour or less) for several senior or disable citizens organisations.
[10] I have considered whether, given the lack of a transcript, I should assume that there was additional evidence given to the citizenship judge that is not before me. I have decided not to make that assumption in this case because the respondent had the opportunity to provide such to the Court, if it existed, by way of affidavit (Rule 306).
[11] The evidence does not support the citizenship judge's conclusion. It is clear that the respondent's centre of existence is in Romania, not Canada. He has no substantial connections here. It is clear from the submissions that he made on the application of citizenship that the time he has spent here in recent years is a temporary hiatus, not the establishment of permanent residence.
[12] I must therefore allow the appeal. While denying someone citizenship because they have not met the residency requirements seems harsh, this is not so since the individual can always reapply when they have met those requirements.
[13] For the reasons given, the appeal is allowed.
"B. Reed"
Judge
TORONTO, ONTARIO
March 31, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-1683-98
| STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
- and -
DATE OF HEARING: WEDNESDAY, MARCH 17, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: REED J.
DATED: WEDNESDAY, MARCH 31, 1999
APPEARANCES: Ms. Lori Hendricks
For the Applicant
Mr. Howard Eisenberg
For the Respondent
SOLICITORS OF RECORD: Morris Rosenberg
Deputy Attorney General
of Canada
For the Applicant
Howard P. Eisenberg
Barrister & Solicitor
1010-105 Main St. E.
Hamilton, Ontario
L8N 1G6
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990331
Docket: T-1683-98
Between:
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Applicant
- and -
DORU-OCTAVIAN DUMITRU
Respondent
REASONS FOR ORDER
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