Date: 19990920
Docket: T-1709-98
Ottawa, Ontario, the 20th day of September, 1999
Present: The Honourable Mr. Justice Pelletier
BETWEEN :
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
GHAZARIANS YOUSEFI ARAKSIA
Respondent
REASONS FOR ORDER and ORDER
[1] Mrs Araksia came to Canada as a landed immigrant on October 8, 1991. On January 6, 1998 she applied for Canadian citizenship. In the 4 years immediately preceding her application, that is from January 6, 1994 to January 6, 1998, she spent 733 days out of the country and 728 days in Canada. This left her 367 days short of the 1095 days required by s. 5(1)(c) of the Citizenship Act, R.S.C. 1985 c. C-29.1 The Citizenship Judge purported to apply the "Thurlow Framework" in which days of absence from the country can be counted as days of residence providing that the applicant has centralized his/her central mode of living in Canada and that the absences are temporary and do not disclose an intention to abandon residence.2
[2] The essential elements of the residence requirement are that residence must be established, that is the applicant must centralize his/her ordinary mode of living in Canada by taking steps which demonstrate such an intention, and that residence must be maintained during periods of absence from the country. Whether residence has been established and whether it has been maintained are questions of fact.
[3] In this case, the appellant relies upon the calculation in the Citizenship file which shows that the respondent was short 522 days of the required 1095 days. The appellant argues that the mere fact of spending so much time away is, of itself, evidence of a lack of commitment to the country. Whatever might be the merit of that argument if the respondent were in fact 522 short of the required days, it does not have the same impact when the shortfall is considerably less. I have calculated the shortfall as follows:
Periods of Absence:
| January 6, 1994 to May 26, 1994 - 26+28+31+30+26 = 141 |
| May 15, 1995 to October 22, 1995 - 16+30+31+31+30+22 =160 |
| October 5, 1996 to December 11, 1997 - 365+27+30+11=433 |
733
Presence in Canada in 4 years preceding application:
4 x 365 = 1460 + 1 (Leap year) = 1461
| 1461 (total days) - 733 (days of absence) = 728 |
Shortfall in required days:
| 1095 ( required days) - 728 (days present) = 367 |
[4] The nub of the appellant"s argument is that the respondent"s absences from the country were voluntary and were not dictated by educational or occupational requirements. In fact, two of the three periods of absence were to visit family but one was to care for her daughter when the latter became ill with heart disease and then suffered a stroke. According to the respondent"s residence questionaire, this had the effect of extending the last visit beyond the time for which the respondent had intended to stay.
[5] The appellant concedes that while the respondent was away, she continued to have a Canadian address, albeit at ther daughter"s home; she kept her furniture, either at her daughter"s or in storage; she maintained a bank account and Canadian medical coverage; the balance of her family was in Canada. The respondent says in her residence questionaire that it was always her intention to keep her home in Canada. The appellant further concedes that residence was established and that the only issue is whether residence was maintained.
[6] On a consideration of the evidence before him, the Citizenship Judge concluded that the respondent had maintained a sufficient connection with Canada to allow him to consider the periods of absence from the country as counting towards the necessary period of residence. As I indicated in Akan v. Canada (Minister of Citizenship and Immigration) 1999 F.C.J. No. 991, the division of opinion in this Court as to the proper approach to be taken to the residence requirement leads me to the conclusion that a Citizenship Judge can choose to follow any approach adopted in the Trial Division he/she prefers without being found wrong on that ground alone. Since each approach is equally authoritative as far as the Citizenship Court is concerned, it cannot be an error for a Citizenship Judge to follow one approach rather than the other. However, having chosen an approach, the Citizenship Judge is bound to apply it correctly. In this case, the Citizenship Judge appears to have taken the proper factors into account and, as a result, I would not interfere with his decision.
O R D E R
It is therefore ordered that the appeal is dismissed.
"J.D. Denis Pelletier"
Judge
__________________
1 The tribunal record provided by the Citizenship Court contains two residency calculations, one of which show the Respondent being 366 days short of the required residence and the other showing the Respondent being out of the country for 887 days showing a shortfall of 522 days from the required 1095 days. It is not apparent from the record which calculation the citizenship judge used in coming to his decision.
2 The "Thurlow Framework" is named after Mr. Justice Thurlow"s decision in Re Papadogiorgakis [1978] 2 F.C. 208 (T.D.) in which he counted the applicant"s time out of Canada attending university as part of the required period of residence under s. 5(1)(c ) of the Act.
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