Date: 19990629
Docket: T-1299-98
Toronto, Ontario, Tuesday the 29th day of June, 1999
PRESENT: The Honourable Mr. Justice MacKay
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
ISLAM OMAR DARBOUR
Respondent
JUDGMENT
UPON appeal by the Applicant from a decision of a Citizenship Court Judge rendered on April 27, 1998, pursuant to s-s. 14(5) of the Citizenship Act, and
UPON hearing counsel for the parties
IT IS ORDERED AND ADJUDGED that the appeal is allowed and the decision of the Citizenship Judge approving the Respondent's application for citizenship is set aside.
"W. Andrew MacKay"
Judge
Date: 19990706
Docket: T-1299-98
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
ISLAM OMAR DABBOUR
Respondent
REASONS FOR JUDGMENT
MacKAY J.
[1] The applicant Minister appeals a decision of the Citizenship Court Judge dated April 27, 1998. The appeal is based on the ground that the judge erred in finding that the respondent had met residence requirements established under the Citizenship Act, R.S.C. 1985, c. C-29 (the "Act").
[2] The Act, by paragraph 5(1)(c), authorizes the Minister to grant citizenship to a permanent resident who "within the four years immediately preceding the date of his application, accumulated at least three years of residence in Canada ...". It is the Minister's view in this appeal that the respondent did not meet that requirement.
[3] In the notice to the Minister of the decision of the Citizenship Judge, the Judge set out reasons for approval of the respondent's application, as follows:
| "Despite residence shortage, the applicant through credible declaration of intent and irrefutable indicia has given proof of both the establishment of a Canadian residence and centrality of mode of living totally compatible with the pursue of full time study of medicine at the University of Damascus, in Syria, where the applicant was registered as a 4th year student full time when the applicant arrived to Canada as a permanent residence. All the other requirements having been met, I decided to approve this application for citizenship. Documents presented at the hearing: Imm1000, lease for the apartment in father's name, see father's file #2 8051 Dabbour Omar Mahmoud Ali." |
[4] The respondent arrived in Canada and was landed as a permanent resident on July 17, 1994. He applied for citizenship on August 25, 1997. When he arrived in Canada, he was then a full time medical student at the University of Damascus in Syria. In his residence questionnaire, completed in connection with his application for citizenship, he notes:
| ...I was a student at the Faculty of Medicine at Damascus University in Syria.... I was in my fourth year. I had three more years to qualify as a Doctor. I have tried to join several medical schools in Canada. But I was told that I was not to be credited for the subjects (courses) I took in Damascus due to differences in the systems. And that I must start from zero in order to become a doctor which would make me lose long years I spent studying medicine at Damascus Medical School. |
After he came to Canada he continued with his medical studies at Damascus, including clinical attachments at hospitals in the United Kingdom.
[5] In order to complete his studies, the applicant spent extended periods outside Canada including some five months mainly in the United Kingdom. After his initial arrival on July 17, 1994, he remained in Canada until September 18 of that year when he first went abroad. In the three years and one month or so following his arrival and landing as a permanent resident in 1994 until the date of his application for citizenship, by his own calculation he was absent from Canada on his studies a total of 800 days. This meant that he was in Canada a total of about 340 days before his application for citizenship, far short of the equivalent of 3 years or 1095 days. After he arrived in Canada, he remained only 63 days before returning to continue with his studies, and he returned to Canada periodically between study sessions, the longest period being for 92 days in 1996.
[6] For the Minister, it is urged that the Citizenship Judge adopted the wrong test in assessing whether the applicant had met residence requirements under the Act. In the alternative, it is suggested that if the judge's decision seeks to apply jurisprudence which accepts that if residence is once established in Canada it continues despite periodic absences from the country, unless those absences are considered an abandonment of residence once established.
[7] For the respondent, it is urged that at the time of entry to Canada he was dependent upon his parents, although he was of full age he was still a student without his own resources. Moreover, it is urged he was stateless at the time, according to his application, though he was born in Kuwait and had been a student in Syria for a few years. Upon his arrival here he was in the midst of his medical studies, and he was not able to continue these in Canada without loss of credit for the years already devoted to those studies. While he was abroad he had no permanent residence, living only in rental premises, supported by his family who lived in Halifax, and to whom he returned every Spring. While in Canada he had volunteered for service with local hospitals and agencies. He had made some friends in Halifax area and he maintained contact with them when he went abroad.
[8] In my view, with respect, the Citizenship Judge erred in stating that the applicant had demonstrated residence and centrality of his mode of living in Canada "totally compatible with the pursue (sic) of full time study at the University of Damascus, in Syria, where the applicant was registered as a fourth year student full time when the applicant arrived to Canada as a permanent residence (sic)." The test set by the statute is not whether residence in Canada is compatible with pursuit of studies, or business or any other activities, abroad.
[9] Moreover, even if the decision were read to indicate that the Citizenship Judge had determined on the basis of "credible declaration of intent and irrefutable indicia" that residence and the centrality of the mode of living of the applicant had been established in Canada, on the basis of the test, first annunciated by then Associate Chief Justice Thurlow in Re Papadogiorgakis, [1978] 2 F.C. 208 (F.C.T.D.), with respect, the judge misapplied the principle of that case. Intent of an applicant for citizenship may be relevant where there is evidence that residence has been established. Here no such evidence is available on the record to support the judge's finding.
[10] This is not simply a question of differing with the trial judge on a finding of fact. In accord with the decision of Mr. Justice Lutfy in Re Lam, [1999] F.C.J. No. 410, a court in judicial review of a decision of a Citizenship Judge seeks to identify the test applied by that judge and then assesses whether that test has been properly applied. The standard of review is essentially one of correctness. Here there was simply no evidence to warrant a conclusion that residence had been established in Canada by the respondent before he left on his first return to Damascus to continue his studies in September 1994, some 63 days after arriving and being landed in Canada. It was necessary to find residence had been established by that time to support any finding that the applicant had met the requirement of three years of residence in Canada even if he were to be considered a resident thereafter while absent from the country. That is because his application for citizenship was made less than three full years after he first left the country in September 1994 to continue his studies and only three years and one month or so after he had first arrived.
Conclusion
[11] In my view, with respect, the Citizenship Judge erred in stating the test applicable for considering residence under the principle which recognizes continuing residence despite absence abroad after residence has been established. There simply was not evidence which would support the conclusion that the respondent had established residence in Canada in the sixty-three days he was here after his first arrival and before leaving to continue his studies.
[12] At the conclusion of the hearing I orally rendered judgment allowing the Minister's appeal.
[13] I note for the record that the respondent did raise in his original application record a procedural issue, concerning the failure of the applicant Minister to file an affidavit with her application for appeal. Before the hearing of this matter, that issue had been dealt with in a preliminary way by Madam Justice Reed in an interlocutory order in this proceeding when she noted that this was not an application for judicial review but rather was an appeal under the Citizenship Act which by the 1998 Rules of the Court proceeds by application, and Rule 306 of the Court's Rules does not require filing of affidavit evidence on citizenship appeals. The same result was reached by Mr. Justice Evans in Re Lau, [1999] F.C.J. No. 339 (F.C.T.D.). In view of those determinations, no issue was raised at the hearing about the lack of affidavit evidence filed on behalf of the applicant Minister, whose record included the Notice of Motion, the written record from the Citizenship Court, and a Memorandum of Fact and Law.
W. Andrew MacKay
Judge
OTTAWA, Ontario
July 6, 1999.