Date: 19990823
Docket: T-1527-98
Ottawa, Ontario, this 23rd day of August, 1999.
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN :
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
MANISH PHUPENDRA VED
Respondent
REASONS FOR ORDER and ORDER
[1] Mr. Ved applied for Canadian citizenship on April 21, 1997. His application was successful. The Citizenship Judge was emphatic in his endorsement of his candidacy:
| Despite a residence shortage of 345 days, the applicant, through credible declaration of action and intent and the provision of irrefutable documentation, has, within the THURLOW FRAMEWORK, given proof of both the establishment and maintenance of a bona fide Canadian centrality of living. In the relevant period between LANDING and FIRST ABSENCE, the customary indicia were put in place: domicile, SIN, Health Insurance, bank account, completion of University education in Canada, start of family, Canadian employment. |
|
[2] The Minister of Citizenship took a more jaded view in light of the fact that the period between LANDING and FIRST ABSENCE was three days. Mr. Ved apparently entered the country and obtained status as a landed immigrant on February 26, 1994. He departed for the United Kingdom where he remained for 179 days on March 1, 1994. The Minister appealed the Citizenship Judge"s decision.
[3] Mr. Ved was served with the notice of appeal and responded by letter saying that he would abide by the Department of Immigration"s determination that he had applied too soon. He appeared at the hearing of the appeal on his own behalf, to say the same thing. He was advised that the Minister"s appeal could be opposed and that if he wished to do so, he could be accommodated. He repeated that he would abide by the result of the appeal and reapply when he qualified.
[4] The Citizenship Judge purported to apply the Thurlow Framework (to use his terms) to the residency requirement. Named after that learned judge"s decision in Papadogiorgakis , [1978] 2 F.C. 208 (T.D.) in which he defined residence in such a way as to include periods of absence from the country. Muldoon J. has criticized this approach saying that it is clear that Parliament intended residence to mean physical presence. The Court has been divided on the issue ever since.
[5] The Thurlow Framework has two components, the establishment of residence, which is agreed by all to include the centralisation of one"s customary way of life in Canada, and the maintenance of residence so that the "residency clock" does not stop during periods of absence. If residence is not established, it cannot be maintained; the clock cannot begin to run. In this case the problem is the establishment of maintenance.
[6] Mr. Ved entered the country and became a landed immigrant on February 26, 1994. He remained for 3 days and left for 6 months or so. While this is a possibility for a dependent student who leaves the country to continue her studies, it is very unusual for an independent adult applicant like Mr. Ved.
[7] The record discloses that some formal arrangements may have been made (such as opening bank accounts etc.) But an independent adult cannot, in the absence of particular circumstances, claim to centralize their customary mode of living in Canada in a 3 day period following by a 6 month absence. There is no evidence of particular circumstances here. The evidence, such as it is, reflects a brief stay to make various arrangements followed by a lengthy absence. His address in Canada during this time was his uncle"s house.
[8] The earliest that Mr. Ved could have established residency is upon his return to Canada on August 29, 1994. He remained in Canada until August 1995 when he again departed for a period of six months.
[9] Once residence is established, under the Thurlow Framework, it continues unless it is shown to be abandoned, even though the applicant is not physically present in the country.
[10] Assuming that August 1995 is the earliest date on which residence could be established, days of residence would accumulate until the date of application which was April 21, 1997. There are fewer than 1095 days between August 29, 1994 and April 21, 1997 which means that it is impossible for Mr. Ved to accumulate 1095 days of residence in that period. As a result his application was premature.
[11] In the end, even if the Citizenship Judge applied the Thurlow Framework from the earliest date when residence could have been established, the appeal would still succeed.
[12] The appeal is therefore allowed.
The appeal is allowed.
"J.D. Denis Pelletier"
Judge
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