Date: 19990505
Docket: T-1232-98
MONTRÉAL, QUEBEC, MAY 5, 1999
Present: THE HONOURABLE MR. JUSTICE DENAULT
Between:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Plaintiff,
AND
RIZKALLAH KADID,
Defendant.
JUDGMENT
The plaintiff's appeal is allowed. The decision by the citizenship judge Gordana Caricevic-Rakovich on May 5, 1998 approving the defendant"s application for Canadian citizenship is accordingly quashed.
Pierre Denault
Judge
Certified true translation
Bernard Olivier, LL. B.
Date: 19990505
Docket: T-1232-98
Between:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Plaintiff,
AND
RIZKALLAH KADID,
Defendant.
REASONS FOR JUDGMENT
DENAULT J.
[1] The Minister of Citizenship and Immigration is appealing a decision by a citizenship judge which approved the defendant's citizenship application on the ground inter alia that he complied with the provisions of s. 5(1)(c) of the Citizenship Act regarding residence. Under that section an applicant must have resided in Canada for at least three years within the four years preceding his application.
[2] The defendant arrived in Canada with his wife and children on November 25, 1993. When he made his citizenship application on May 20, 1997, less than four years after his arrival, he stated in his application that he had been absent from Canada for a period of 577 days on business trips to his country of origin, Saudi Arabia, and other Arab countries. The citizenship judge considered that the defendant met the residence criterion laid down in s. 5(1)(c) of the Citizenship Act, after stating the following reasons:
| [TRANSLATION] |
| I consider, after reviewing the documents in the record and hearing the applicant's testimony, that the applicant left Canada on account of the fact that he could not find work here in his profession and was required to work to support his wife, who is a homemaker, and his other children, who are students. His children are Canadian citizens and in my view his links with Canada are such that he meets the provisions of s. 5(1)(c) of the Act. |
[3] In support of his appeal the plaintiff argued that the citizenship judge rendered a decision based on an incomplete analysis of the evidence and, in any case, whatever line of authority this Court adopts in interpreting the concept of residence, the defendant did not meet it.
[4] The number of days the defendant was in Canada during his qualifying period, and hence the number of days of absence, are key aspects of this case. In a questionnaire on residence which he filed shortly before the hearing of his application before the citizenship judge, the defendant mentioned that he had lost his passport so that it was difficult to be exact about the days he was absent from or present in Canada. A photocopy of this passport taken before it was lost, however, shows that the defendant was absent more frequently than his citizenship application indicates. Thus, a check of the defendant's passport shows that in listing his absences from Canada he did not mention, inter alia, that he was at the very least in Saudi Arabia for indefinite periods beginning March 7, May 7 and November 5, 1995 and May 1, 1996. Nevertheless, judging from the list of his absences from the country supplied by the defendant himself, he was in Canada on all those dates.
[5] The Court can only conclude that the defendant failed to report, or deliberately minimized, his days of absence. A simple check of the defendant's passport by the citizenship judge would have disclosed the error.
[6] In the case at bar, since the defendant did not present evidence in his citizenship application that he met the residence criterion laid down by law and the citizenship judge erred in weighing the evidence, the appeal must be allowed.
[7] Regardless of the conclusions at which I have arrived as a result of the error in weighing the evidence, I consider in light of recent precedents on the concept of residence that this appeal would have to be allowed in any case, whatever line of authority one decides to apply. It is well known that judges of this Court have long been torn between a strict and a more liberal application of the residence concept. Whether the Court applies the strict interpretation of the law, initially favoured by Muldoon J.A. in Pourghasemi (1993), 19 Imm. L.R. (2d) 259 (F.C.), requiring strict physical presence during the qualifying period, or the slightly more liberal interpretation recommended in Papadogiorgakis, [1978] 2 F.C. 208 (F.C.) and Koo, [1993] 1 F.C. 286, the plaintiff's appeal must be allowed as, first, the defendant did not establish residence in Canada of at least three years during his qualifying period, and second, he did not show that he had settled in Canada and centralized his mode of living here before leaving the country sporadically for his frequent voyages abroad.
Pierre Denault
Judge
MONTRÉAL, QUEBEC
May 5, 1999
Certified true translation
Bernard Olivier, LL. B.
Federal Court of Canada
Trial Division
Date: 19990505
Docket: T-1232-98
Between:
THE MINISTER OF citizenship
AND IMMIGRATION,
Plaintiff,
AND
RIZKALLAH KADID,
Defendant.
REASONS FOR JUDGMENT
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: T-1232-98
STYLE OF CAUSE: MINISTER OF citizenship
AND IMMIGRATION,
Plaintiff,
AND
RIZKALLAH KADID,
Defendant.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 4, 1999
REASONS FOR ORDER BY: DENAULT J.
DATED: May 5, 1999
APPEARANCES:
Jocelyne Murphy for the plaintiff
Michelle Langelier for the defendant
SOLICITORS OF RECORD:
Morris Rosenberg for the plaintiff
Deputy Attorney General of Canada
Montréal, Quebec
Micheline Langelier for the defendant
Montréal, Quebec