Date: 19990920
Docket: T-2240-98
Ottawa, Ontario, the 20th day of September 1999
Present: THE HONOURABLE MR. JUSTICE LEMIEUX
Between:
Rajae CHENTOUI
Applicant
- and -
Minister of Citizenship and Immigration
Respondent
ORDER
For the attached reasons, the appeal is dismissed.
François Lemieux
J U D G E
Certified true translation
Monica F. Chamberlain
Date: 19990920
Docket: T-2240-98
Between:
Rajae CHENTOUI
Applicant
- and -
Minister of Citizenship and Immigration
Respondent
REASONS FOR JUDGMENT
LEMIEUX J.:
[1] The applicant, Rajae Chentoui, is appealing the decision of citizenship judge Barbara Seal, dated August 11, 1998, whereby the judge did not approve Ms. Chentoui"s application for Canadian citizenship on the ground that the applicant did not meet the residence requirements provided in the Citizenship Act . Paragraph 5(1)(c) reads as follows:
| 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 mains 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 material facts are as follows. The applicant was granted landing on December 1, 1990; she came with her husband, a Canadian citizen. The couple rented an apartment in Montréal. Three months later, on February 10, 1991, the applicant returned to Morocco and stayed there until September 13, 1994, a period of three years and seven months. Her husband, who exports Canadian products to Morocco, went to Morocco at the same time to resolve some serious problems with a transaction involving the delivery of honey from Quebec. In Morocco, the applicant lived in the family residence in Meknes for two years and three months. The lease for the apartment in Montréal was cancelled.
[3] The couple returned to Canada on September 13, 1994. The applicant filed an application for Canadian citizenship on September 22, 1996. Under the Act, the period of required residence was calculated between September 22, 1992, and September 22, 1996. I note that during this period the applicant was absent from Canada for two years.
| [4] On August 10, 1998, the applicant filled out a residence questionnaire from the Government of Canada. The form provides the following explanation for applicants: |
| [translation] To help the citizenship judge determine whether you meet the residence requirements provided in the Citizenship Act, we ask that you complete this questionnaire IN FULL and return it to the citizenship office before your hearing before the judge. |
Since the term "residence" is not defined in the Citizenship Act or in its regulations, we must refer to Federal Court decisions to interpret its meaning. The Court has declared that the period of residence in Canada for citizenship purposes is not limited to physical presence. Instead the concept of residence is linked to the extent to which the applicant has established himself or herself in Canada, and has maintained and centralized his or her mode of existence there during the required period of 3 of the 4 years immediately preceding the date of his or her citizenship application. In other words, the applicant must prove that he or she has chosen to make a home in Canada and, during absences from Canada, has maintained enough ties with the country to demonstrate the permanent nature of the residence.
| [5] In response to the question [translation ] "Please describe the professional, family and social ties you have established in Canada from the time of your entry until your first absence from Canada . . . which . . . will help the judge determine whether you were truly established in Canada or whether you centralized your mode of existence", the applicant wrote the following:[translation ] Given that we left Canada on business, I did not have time to work, but I made friends. |
| [6] To the question [translation ] "Have you maintained a residential base or an address in Canada?", the applicant answered: |
[translation] No. Because of our (financial) problems, my husband returned to Canada to cancel the lease. We could not pay rent for two places because we did not have an income.
[7] The applicant indicated that her departure was temporary and the absence was longer than expected because of problems with her husband"s business transactions, including a lawsuit.
[8] The citizenship judge did not approve the applicant"s application primarily on the ground that the applicant had not centralized her mode of existence in Canada before her prolonged absence of three years and seven months. The citizenship judge based her decision on the criteria established in Re Koo , [1993] 1 F.C. 286 (F.C.T.D.). In my view, Madame Justice Reed"s analysis is a clear statement of the legislative intent and line of authority. At page 293, Reed J. states the following:
| The conclusion I draw from the jurisprudence is that the test is whether it can be said that Canada is the place where the applicant "regularly, normally or customarily lives". Another formulation of the same test is whether Canada is the country in which he or she has centralized his or her mode of existence. |
[9] In my opinion, the citizenship judge properly held that the applicant had not established her home in Canada before her prolonged stay in Morocco. There is nothing on the record that indicates that before leaving the applicant had "centralized her ordinary mode of living with its accessories in social relations, interests and conveniences" in Canada (In re Papadogiorgakis , [1978] 2 F.C. 208 at page 214).
[10] In Choi v. Canada (M.C.I.), T-1638-96, May 29, 1997, and Cheung v. Canada (M.C.I.), T-2841-96, June 10, 1998, Nadon J. emphasized that an applicant for Canadian citizenship must demonstrate that he or she has established a Canadian home before a temporary absence can be counted for the purpose of residence requirements under the Act.
[11] I would add the following. In my view, the applicant"s application was premature. She chose a very bad time to apply for citizenship. Since she returned to Canada on September 13, 1994, and following the birth of her two children in 1995 and 1996, the documentary evidence suggests that Canada has truly become the applicant"s home. These and other factors suggest that a new citizenship application by the applicant would have good chances of succeeding.
[12] For these reasons, the appeal is dismissed.
François Lemieux
J U D G E
Ottawa, Ontario
September 20, 1999
Certified true translation
Monica F. Chamberlain
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-2240-98
STYLE OF CAUSE: RAJAE CHENTOUI v.
MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: September 8, 1999
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE LEMIEUX
DATED: September 20, 1999
APPEARANCES:
Nathalie Boulos
for the applicant
Lisa Maziade
for the respondent
SOLICITORS OF RECORD:
Elfassy, Rose & Associés
Montréal, Quebec
for the applicant
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario
for the respondent
Email this Content