Sud v. Canada (Minister of Citizenship and Immigration), docket T-1900-98

     Date: 19991019

     Docket: T-1900-98

Ottawa, Ontario, the 19^th day of October, 1999

Present: The Honourable Mr. Justice Pelletier

BETWEEN :

     RAJNI SUD, KARAN SUD, RHEA SUD

     Applicants

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER and ORDER

[1]      On March 10, 1989, Mrs. Rajni Sud, the Applicant, her husband Rajiv Sud and their son Karan Sud entered Canada as permanent residents. After a stay of 10 days during which they resided in the home of friends, Mrs. Sud left Canada to return to the United Arab Emirates and India in order to clean up their affairs and to meet with family. She was gone for 337 days. Upon her return, she remained in Canada for approximately one month, residing in the home of friends, and then left again for the U.A.E. and India, to accompany her husband on his work assignment. She was gone for 338 days, returning in February 1991. She appears to have remained in Canada for approximately 9 months before leaving again in November 1991 for 308 days. After a stay of approximately 10 days, she left again for 215 days.

[2]      This pattern of absences continued in more or less the same form until January 1996 when her periods of presence in Canada lengthened significantly and her periods of absence became much shorter. She applied for citizenship on April 30, 1997. She was physically present in Canada for 672 of the 1460 days preceding her application. She was 423 days short of the 1095 days residence required by section 5 (1)(c) of the Citizenship Act, R.S.C. 1985 c. C-29.

[3]      From 1989 to November 1994, Mrs. Sud stayed with friends whenever she was in Canada. In November of that year, she rented a home in Oshawa until the family purchased a home in Oakville in November of 1995. In the period of tenancy (approximately one year), Mrs. Sud was absent from Canada for 312 days.

[4]      The Citizenship Judge found that Mrs. Sud had not satisfied the residence requirements of the Act. The refusal letter indicates that the judge questioned how Mrs. Sud could have established residence in Canada between her date of landing and April 30, 1993 given her pattern of absences. It then goes on to indicate that the Citizenship Judge is satisfied that "during the last two years prior to your application you did fully maintain your residence in Oakville, Ont.". While the letter is not a model of clarity, it suggests that the Citizenship Judge found that residence had not been established until a date within the four years preceding the date of application. It could scarcely have been in 1995 since Mrs. Sud was present in Canada for only 34 days in 1995. Based upon the fact of her returning to Canada on January 6, 1996 and remaining in Canada until August 16, 1996, the date the establishment of residence could reasonably be found to be January 1996, which is in fact less than 2 years preceding the date of application.

[5]      Residence does not begin to accumulate until it has been established. This principle was confirmed by the Federal Court of Appeal shortly after the decision of Mr. Justice Thurlow in Re Papadogiorgakis [1978] 2 F.C.R. 208 in a case called Re Pattni [1980] F.C.J. No. 1017. In Papadogiorgakis, Thurlow J. established the principle of constructive residence in which periods of absence from Canada could count towards the residence requirement found at s. 5 (1)(c) of the Act. It is implicit in Papadogiorgakis that residence must first be established before periods of absence can count as periods of residence. This was made explicit in Pattni:

[6]      In this case, the date of establishment of residence is not clearly set out by the Citizenship Judge but it is clear that the judge believed it to be within the 4 years preceding the date of application for citizenship; the suggestion appears to be that it was within the last 2 years of that period. If that is so, the 3 year minimum period would not have expired until a date after the date of application. As a result, the application was premature. Constructive residence does not apply to this situation because even if all days after the date of establishment are counted, they do not total 1095. In the usual constructive residence situation, actual physical presence is less than 1095 days but when days of absence are included, the 1095 day requirement is met. Here it could not be met because there were less than 1095 days between the date of establishment, as near as it can be determined, and the date of application.

[7]      It would have been open to the Citizenship Judge to find that residence had been established during Mrs. Sud"s nine month stay in Canada in 1991. However, when one examines the evidence of attachment to Canada, all of the active involvement in Canadian life occurs after January 1996 even if some or all of the passive indicia (driver"s license, social insurance number, bank account etc.) were acquired before that date. While another judge could have come to a different conclusion, I see no reason to disturb this judge"s decision

     ORDER

     The application to set aside the decision of Citizenship Judge Pamela Appelt dated August 3, 1998 is dismissed..

     "J.D. Denis Pelletier"

     Judge