Date: 19990823
Docket: T-96-99
Ottawa, Ontario, this 23rd day of August, 1999
PRESENT: The Honourable Mr. Justice Pelletier
BETWEEN:
RAUL ENRIQUE ROMERO GONZALEZ
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER and ORDER
PELLETIER J.
[1] Raul Enrique Romero Gonzalez came to Canada as a refugee, arriving at Pearson Airport on March 3, 1992. He immediately applied for refugee status, which he was granted. He became a landed immigrant on March 25, 1994. On October 15, 1995 he enrolled in a Masters program in Spanish at City College in New York after learning that he would have to repeat one or more years of his undergraduate program before being accepted into an equivalent Canadian program. He applied for Canadian citizenship on February 16, 1998 and was interviewed by the Citizenship Judge on October 1, 1998. By
letter dated December 3, 1998, the Citizenship Judge advised Mr. Gonzalez that his application for citizenship was denied. The basis of the denial is found in the following paragraph:
| After having considered the evidence that I received both by way of testimony and documentation, I could not find that you have established a residence in Canada by virtue of a centralized mode of living in Canada in the four years preceding your application for Canadian Citizenship. |
[2] The Citizenship Act requires, as a condition of eligibility for citizenship that the applicant:
| (c) has been lawfully admitted to Canada for permanent residence, has not ceased since such admission to be a permanent resident pursuant to section 24 of the Immigration Act, and has, within the four years immediately preceding the date of his application, accumulated at least three years of residence in Canada calculated in the following manner: |
c) a été légalement admise au Canada à titre de résident permanent, n'a pas depuis perdu ce titre en application de l'article 24 de la Loi sur l'immigration, et a, dans les quatre ans qui ont précédé la date de sa demande, résidé au Canada pendant au moins trois ans en tout, la durée de sa résidence étant calculée de la manière suivante: |
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| [3] While there are differing opinions in this Court as to how the residence test is to be applied, there is broad agreement that there are two elements: the establishment of residence, and thereafter, the maintenance of residence. In this case, the Citizenship Judge dismissed Mr. Gonzalez`s application because she was not able to find evidence of the establishment of residence in the four years preceding Mr. Gonzalez`s application for citizenship. With respect to the learned Citizenship Judge, she misdirected herself when she limited the period within which she sought evidence of establishment of residence to the four years preceding the application for citizenship. The Act does not require that residence be established in the four year period preceding the application; it requires that residence be "accumulated" during that period of time. Residence can be established outside the four year period but it must be maintained within the four year period. |
| [4] This principle was applied in Ishmael v. Minister of Citizenship and Immigration, [1992] F.C.J. 565 where MacKay J. referred to cases where other judges had done the same: |
| Other decisions of this Court have made it clear that it is not necessary that residence be established within the four years prior to application for citizenship. One may establish residence prior to the four year period relevant to an application for citizenship. Thus, in Re Kelly (1990), 11 Imm. L.R. (2d) 44 (F.C.T.D.), McNair J. allowed the appeal of an applicant granted landed immigrant status in 1956, who was subsequently employed by the Royal Bank of Canada and posted abroad from 1961 almost entirely to 1988 when he applied for citizenship. His Lordship found that residence had been established in Canada in the period 1975-78 and in view of periodic returns to Canada on a regular basis each year, the maintenance of an apartment in this country, payment of taxes and numerous other ties continuing through his years abroad, the residence requirements of the Act had been met. In the matter of Lee (Court file T-2242-84, March 12, 1986, (F.C.T.D.) unreported), Mr. Justice Cullen allowed the appeal of one who came to Canada as a landed immigrant, at age eleven as a dependant with his family, who subsequently completed schooling and first year of university studies in Canada before continuing studies and practical professional training abroad. His studies and training were in the United States, England and Hong Kong and this entailed his absence from Canada for almost a full eight consecutive years prior to his application for citizenship. Implicitly that decision recognized that residence had been established in Canada prior to commencement of studies and training abroad and that the absence for almost eight years for purposes of study and training did not mean that the applicant was not resident in Canada for purposes of the Act. |
[5] By looking for evidence of establishment of residence only in the four year period preceding the application, the Citizenship judge ignored evidence which may have shown that Mr. Gonzalez established residence in Canada prior to the commencement of the four year period. I do not decide that residence was established in that period, only that the Citizenship judge was to consider the whole Mr. Gonzalez"s presence in Canada in deciding whether residence had been established.
[6] For that reason, the appeal is allowed.
O R D E R
The appeal is allowed.
"J.D. Denis Pelletier"
Judge