Date: 19990429
Docket: T-2161-97
IN THE MATTER OF THE CITIZENSHIP ACT,
R.S.C. 1985, c. C-29
AND IN THE MATTER OF an appeal from
the decision of a Citizenship Judge
AND IN THE MATTER OF
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Appellant
- and -
FARHEEN UR RAHMAN
Respondent
REASONS FOR JUDGMENT
SIMPSON, J.
[1] This is an appeal by way of trial de novo under s. 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 (the "Act") and s. 21 of the Federal Court Act, R.S.C. 1985, c. F-7, brought on behalf of the Minister of Citizenship and Immigration (the "Minister") from a decision of a Citizenship Judge dated August 7, 1997, wherein the Judge approved the application of the Respondent, Miss Farheen Rahman, for a grant of Canadian citizenship.
[2] The Citizenship Judge decided that the Respondent had met the residence requirement of s. 5(1)(c) of the Act, despite the fact she was absent from Canada for 930 of the 1095 days of residence required by section 5(1)(c) of the Act.
[3] The Respondent was represented by counsel and testified in this proceeding.
THE FACTS
[4] The Respondent was born on February 4, 1976, and is a citizen of Pakistan. She acquired landed immigrant status on September 1, 1993, on the day she first came to Canada accompanied by her father, mother and two sisters. On September 30, 1996, approximately three years after she first came to Canada, the Respondent completed an adult application form for Canadian citizenship. This meant that the relevant period for the consideration of her residence began on September 30, 1989, one year before her arrival in Canada.
[5] On September 9, 1993, just nine days after she first arrived in Canada, the Respondent left the country with her father and her mother and lived with them in Kuwait while she continued her "A Level" studies. She did not return to Canada until July 18, 1994, some 312 days later. After holidays abroad and brief stays in Canada, she returned to Kuwait and again lived with her parents until she completed her A Levels in the spring of 1995.
[6] Shortly thereafter, in the fall of 1995, the Respondent went to study medical illustration at the University of Michigan. She had been informed that a course in medical illustration was not available from the University of Toronto at the undergraduate level. On her application form for the University of Michigan, the Respondent showed her parents' address in Kuwait as her residence.
[7] Between landing on September 1, 1993, and her application for citizenship on September 30, 1996, the Respondent was only in Canada for a total of 165 days. She was absent from Canada on seven different occasions and for 960 days in total. The particulars are as follows:
- from September 9, 1993 to July 18, 1994 for 312 days (continued A Levels in Kuwait);
- from August 8, 1994 to August 21, 1994 for 13 days (vacation in Kuwait/U.K.);
- from September 6, 1994 to June 13, 1995 for 280 days (completed A Levels in Kuwait);
- from June 21, 1995 to July 18, 1995 for 27 days (vacation in U.K.);
- from August 10, 1995 to August 14, 1995 for 4 days (vacation in U.S.A.);
- from September 5, 1995 to June 21, 1996 for 290 days (study in U.S.A.); and
- from September 2, 1996 to September 26, 1996 for 24 days (study in U.S.A.).
[8] The Citizenship Judge relied on the case of Papadogiorgakis, [1978] 2 F.C. 208 (F.C.T.D.). However, in my view, it should be confined to its unusual facts. In that case, a student who had almost no physical presence in Canada during the relevant four-year assessment period, had lived here for four years and had established a centralized mode of living prior to departing for study abroad. Further, during his absence he maintained a Canadian residence, returned regularly, and took most of his holidays in Canada.
[9] The Papadogiorgakis decision indicates that the Court may treat a student as a resident, despite substantial physical absence, if that student established and maintained residence in Canada by centralizing his or her mode of living in Canada, and was abroad only for temporary studies and returned frequently.
[10] However, Papadogiorgakis is not authority for the proposition that a student can come to Canada for a short time, not establish residence, then spend long periods of study and vacation abroad and, on that basis, expect to meet the residence requirement for Canadian citizenship.
[11] I should observe that establishing residence is not only a matter of assembling the usual paperwork associated with a resident (health card, social insurance card, bank card, tax returns, library card, drivers license, etc.). In my view, some effort to integrate into Canadian society is also necessary. This could occur in a workplace, in a volunteer group, or in social or religious activities, to name just a few possibilities.
[12] Against this background, I note that the Respondent left Canada after nine days. She did not establish herself as a resident before her departure and was never in Canada long enough in the relevant period to even begin to centralize her mode of living here.
[13] This is not a criticism. The Respondent completed important studies and intended to settle in Canada. Since her application for citizenship she has indeed become a resident and is employed at the Royal Ontario Museum in her chosen field. The only problem with her current application is that it is premature. Accordingly, the Minister's appeal will be allowed.
(Sgd.) "Sandra J. Simpson"
Judge
Vancouver, B.C.
April 29, 1999
NAMES OF COUNSEL AND SOLICITORS OF RECORD
IN THE MATTER OF the Citizenship Act,
R.S.C. 1985, c. C-29
AND IN THE MATTER OF an appeal
from the decision of a Citizenship Judge
AND IN THE MATTER OF
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Appellant
- and -
FARHEEN UR RAHMAN
Respondent
COURT NO.: T-2161-97
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 24, 1999
REASONS FOR JUDGMENT: SIMPSON, J.
DATED: April 29, 1999
APPEARANCES:
Ms. A. Leena Jaakkimainen for Appellant
Mr. Mendel M. Green, Q.C. for Respondent
Mr. Peter K. Large for amicus curiae
SOLICITORS OF RECORD:
Mr. Morris Rosenberg for Appellant
Deputy Attorney General of Canada
Green and Spiegel for Respondent
Toronto, Ontario
Peter K. Large for amicus curiae
Toronto, Ontario