Date: 19990601
Docket: T-1523-98
BETWEEN:
SYED MOHAMMAD KHAIRULBASHAR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
DUBÉ J:
[1] This application is an appeal from the decision of a citizenship judge dated June 9, 1998, wherein he found that the applicant had not established a bona fide Canadian centrality of living because of his long absences from Canada totalling 890 days.
1. Facts
[2] The applicant's wife and their three sons arrived in Canada in 1989. They are now Canadian citizens. By 1993, the applicant had terminated his business interests in Pakistan but for a final obligation to resolve a civil litigation against the Government of Pakistan. On February 18, 1993, he arrived in Canada as a landed immigrant with a clear intention to settle permanently here.
[3] He joined a religious and social Islamese community, the "Ahmadiyya Movement in Islam Canada" in Toronto, Ontario. He also joined a professional architect's organization, the "International Ahmadiyya Association of Architect and Engineers" of which he is a life member. He was unable to find a teaching job for himself at the age of 60. His credentials and experience were not accepted in Canada. He has therefore been tutoring children and adults in mathematics, computers and English at his home since May 1995. He has a Canadian driver's license, opened a bank account with TD Bank in February 1994, and regularly paid Canadian income tax since February 1993. He has also been participating in the Community Volunteer Income Tax Program in Canada, since 1996.
[4] In January 1994, he purchased a house at 59 Dromore Crescent, North York, Ontario. He and his family still live there.
[5] The reason for the applicant's absences from Canada was to attend extended court proceedings at Islamabad, Pakistan. It was a time-limited obligation which has been resolved and the applicant has not left Canada since. All his children completed their education in Canada; his oldest son has earned an MBA from York University, Toronto. The second one has earned a bachelor degree in Computer Sciences from that same university and the youngest son has an OSSD from a secondary school.
2. Issue
[6] The issue to be resolved is whether the citizenship judge erred in law in finding that the applicant had not maintained his residency requirements under paragraph 5(1)(c) of the Citizenship Act ("the Act") when he made his application.
3. Analysis
[7] The seminal decision of A.C.J. Thurlow (as he then was) in the well-known Papadogiorgakis1 case has clearly enshrined the principle that a person who has established a home of his own in Canada does not cease to be a resident here when he leaves his home for temporary purposes, whether on business, vacation, or to pursue a course of study.
[8] However, the jurisprudence that has developed since that decision has not been uniform. There is a school of thought based on a strict interpretation of the Act to the effect that the applicant must be physically present at least three years out of the four years preceding his application. On the other hand, there is a more liberal interpretation to the effect that, although substantial physical presence is essential, a degree of absenteeism is acceptable if it is justified. The applicant Papadogiorgakis was a young Greek student living with a Canadian family in Nova Scotia who went away to college in the United States during the relevant academic years. There is a myriad of other decisions where businessmen, involved in international trade, away often and for long periods from their newly established home in Canada, were held to have fulfilled their Canadian residency requirements.
[9] Personally, I have held in many instances that where an applicant has clearly and definitively established a home in Canada with the transparent intention of maintaining personal and permanent roots in this country, he ought not to be deprived of citizenship merely because he has to earn his livelihood and that of his family by doing business offshore. The residence of a person is not where he works but where he returns to after work. Generally, one of the most telling indicia of a person's real intention is the establishment of his whole family in a permanent home in Canada.
[10] In the instant case, the citizenship judge found that the applicant had established his home in Canada but had not maintained it. In my view, the applicant has not abandoned his residency by carrying out residual obligations in his former country.
[11] The Papadogiorgakis decision has been in place since 1978. Should Parliament amend the Act so as to stipulate that residency implies continuous physical presence in Canada, then the matter will be clearly resolved. Until that time, I believe it would be unfair to the applicant to impose upon him such a strict interpretation.
[12] Consequently, the applicant's appeal is allowed.
OTTAWA, ONTARIO
June 1, 1999
Judge
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