Date: 20020118
Docket: T-740-00
Neutral citation: 2002 FCT 65
BETWEEN:
AMBOGO GUINDO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicant appeals under subsection 14(5) of the Citizenship Act from a decision of the Citizenship Judge dated February 25, 2000, wherein the Judge did not approve the applicant's application for a grant of citizenship under subsection 5(1) of the Citizenship Act.
Issue:
[2] The issue is whether the Citizenship Judge erred in determining that the applicant failed to comply with the residency requirements of paragraph 5(1)(c) of the Citizenship Act.
Facts:
[3] The applicant came to Canada on a student authorization on September 13, 1994, to do a Masters Degree in geology, which he completed in 1995. On August 31, 1995, the applicant was issued employment authorization and obtained employment in BHP Minerals Canada Limited, a Canadian company, as a Geologist.
[4] Prior to taking his Master's Degree the applicant had been employed by BHP Minerals International Inc. located in San Francisco, U.S.A. which is a business group of the Broken Hill Proprietary Company Limited and he received a stipend from them while he was a student at Queen's University. The applicant had been continuously employed by BHP Minerals Group since April 15, 1987.
[5] The applicant, his wife and three children became landed immigrants on March 10, 1996. His wife and three children had accompanied the applicant to Canada in September 1994.
[6] After becoming a landed immigrant the applicant travelled, as part of his job requirements, on several business trips. On May 27, 1997, he was requested by the BHP Minerals Group to undertake an international assignment in Tanzania for a period of approximately two or three years. He remained there until the office closed in June 1999.
[7] In August 1998, the applicant's wife and three of his children joined him in Tanzania and remained with him until the company closed its office in June 1999. His oldest daughter continued to live in Canada.
[8] The Citizenship Judge found that the applicant did not meet the residency requirement of paragraph 5(1)(c) of the Citizenship Act as he resided outside of Canada for 363 days of the required 1,095 days. In her decision the Citizenship Judge states:
According to the evidence on your file and presented to me at the hearing, your absences from Canada total 363 days in the four years preceding your application for Citizenship (30 July 1998). During this period you were physically present in Canada for 781 days. In these circumstances, you had to satisfy me, in order to meet the residence requirements, that your absences from Canada (or at least a part of these) could be counted as a period of residence in Canada.
Federal Court precedents require that, to establish residence, an individual must show, in mind and in fact, a centralization of his or her mode of living in Canada. If such evidence is established, absences from Canada do not affect this residence as long as it is demonstrated that the individual left for a temporary purpose only and maintained in Canada some real and tangible form of residence. I have, therefore carefully examined your case to determine whether you had established residence in Canada prior to your absences such that those absences could nevertheless be counted as periods of residence.
[9] The Citizenship Judge went on to say:
"Based on my understanding of the recent jurisprudence from the Federal Court, interpreting the residency requirement under paragraph 5(1)(c), of the Act, as well Parliament's intention which can be gleaned from a plain reading of paragraph 5(1)(c), the most significant factor in considering the residency requirement is whether the applicant can be said to have established his or her residence in Canada by having lived in Canada and been physically present here. As Lemieux J. stated in the case of M.C.I. v. Heny Jreige (T-2012-98, 1990924):
"This first step, establishment in Canada, is essential because, unless an applicant can satisfy it, absences from Canada cannot be counted. ... An examination of the questions developed by Reed J. in Re Koo, supra, amply show that the learned judge's focus was indeed on the physical presence of a citizenship applicant in Canada."
[10] In the case before me the applicant and his family came to Canada on a student visa on September 13, 1994. The applicant stayed here for seventeen months. The family essentially remained in Canada until four years later. In my view it was open to the Citizenship Judge to exercise her discretion by stating that since the applicant was here in Canada on a temporary student visa and a temporary employment authorization during the seventeen months, that the applicant had not centralized his mode of living in Canada. While under subparagraph 5(1)(c)(i) the applicant is entitled to receive a half day for every day spent in Canada before his lawful admission for permanent residence, it does not mean that the applicant had centralized his mode of living in Canada.
[11] In Re Agha [1999] F.C.J. No. 577 (T.D.), at paragraph 34 Lemieux J. states:
The correctness standard does not, however, eliminate the obligation on the appellant before this Court to convince it that the Citizenship Court made some mistake or error such as proceeding on a wrong principle, fundamentally misapprehending the facts or the decision was tainted for other compelling reasons requiring interference by this Court in the decision. On this view, it is not appropriate simply for this Court to substitute a new decision for that of the Citizenship Judge (see in Re Kerho (1988), 21 F.T.R. 180 at 184).
In light of the temporary nature of the student visa and the employment authorization, it is my view that the Citizenship Court did not proceed on a wrong principle or fundamentally misapprehend the facts, nor was the decision tainted for other compelling reasons requiring interference by this Court in the decision.
[12] The appeal is dismissed.
"W.P. McKeown"
J.F.C.C.
Toronto, Ontario
January 18, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-740-00
STYLE OF CAUSE: AMBOGO GUINDO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
DATE OF HEARING: MONDAY, JANUARY 14, 2002
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: McKEOWN J.
DATED: FRIDAY, JANUARY 18, 2002
APPEARANCES BY: Mr. Stephen W. Green
For the Applicant
Ms. Amina Riaz
For the Respondent
SOLICITORS OF RECORD: GREEN AND SPIEGEL
Barristers & Solicitors
121 King Street West
Suite 2200, P.O. Box 114
Toronto, Ontario
M5H 3T9
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020118
Docket: T-740-00
BETWEEN:
AMBOGO GUINDO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER