Date: 20020814
Docket: T-710-01
Neutral citation: 2002 FCT 852
Ottawa, Ontario, Wednesday, this 14th day of August, 2002
Present: The Honourable Mr. Justice Martineau
BETWEEN:
LAURA CHRISTINE DE LIMA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an appeal from a decision of a Citizenship Judge dated March 14, 2001 refusing the Applicant's application for Canadian citizenship on the ground that she did not meet the residency requirements of paragraph 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29.
[2] Under this provision, the applicant must satisfy three conditions in order to be granted citizenship:
a) She has been lawfully admitted to Canada as a permanent resident;
b) She has not ceased to be a permanent resident pursuant to section 24 of the Immigration Act, R.S.C. 1985, c. I-2 since such admission; and
c) She has, within the four years immediately preceding the date of her application, accumulated at least three years of residence (1,095 days) in Canada, as calculated under the prescribed formula set out in this provision.
[3] There is no debate that the applicant satisfies the two first conditions. During the relevant four year period, however, she was physically present in Canada for 419 days, and absent for a total of 728 days, leaving her 676 days short of the 1,095 days needed to satisfy the residence requirements in paragraph 5(1)(c) of the Act, if one assumes that physical presence is mandatory under this provision. This interpretation has been strongly advocated by Muldoon J., formerly of this Court, in Pourghasemi (Re) (F.C.T.D.), [1993] F.C.J. No. 232 and Canada (M.C.I.) v. Opoka, [2001] F.C.J. No. 281. Nadon J., in Canada (M.C.I.) v. Cheung, [1998] F.C.J. No. 813, and Pinard J., In Chow (Re), [1997] F.C.J. No. 7 further advocate a conservative approach to exceptions from actual presence, requiring some permanent presence in Canada before absent periods can contribute to the calculation.
[4] The Citizenship Judge did not base her refusal on the fact that the applicant was not physically present in Canada for at least 1,095 days. It appears that she would have been ready to count the applicant's absences from Canada (or at least a part of those) had the applicant established a residence in Canada by virtue of a centralized mode of living in Canada prior to the absences in question:
I found that you did not meet the requirement of residence. Under Subsection 5(1)(c) of the Citizenship Act, an applicant is required to have accumulated at least three years (1,095 days) of residence in Canada within the four years immediately preceding his or her application.
According to the evidence on your file and presented to me at the hearing, your absences from Canada total 728 days in the four years preceding your application for Citizenship (May 13, 1999). During this period you were physically present in Canada for 419 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.
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.
[5] As in this case, the line of reasoning chosen by Citizenship Judges to determine if an individual has established a residence by virtue of a centralized mode of living in Canada, is most often pursued by answering the six questions posed by Reed J. in Koo (Re), [1993] 1 F.C. 286 (F.C.T.D.):
1. Was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship?
2. Where are the applicant's immediate family and dependants (and extended family) resident?
3. Does the pattern of physical presence in Canada indicate a returning home or merely visiting the country?
4. What is the extent of the physical absence?
5. Is the physical absence caused by a clearly temporary situation?
6. What is the quality of the connection in Canada: is it more substantial than that which exists with any other country?
[6] Notably, Koo, supra, does not assign a relative weight to the factors but aims to assess constructive residency. Therefore, these indicia should be considered in whole. In this regard, I find that the facts recited by the Citizenship Judge in her completed document entitled "Reasons for decision regarding residence" and accompanying notes are certainly capable of supporting the Judge's conclusion that the applicant had not established a residence in Canada by virtue of a centralized mode of living in the four years preceding her application.
[7] According to the evidence on file, the applicant entered Canada as a permanent resident on March 26, 1996 and she applied for citizenship on May 13, 1999. In this case, the applicant was only in Canada for 20 days before she left Canada to join her husband on business overseas in Dubai on April 13, 1996. She did not return to Canada until July 16, 1996. About a month afterwards, she left Canada again, and this time, was out of Canada for almost a year. She only returned to Canada on July 3, 1997. Then, two months later, on September 2, 1997 she left Canada for the third time. She only returned to Canada on July 21, 1998, that is some eleven months later. Her school-age children accompanied her during these extended stays out of Canada. The applicant's husband, who also entered Canada as a permanent resident on March 26, 1996 has been absent from Canada for business purposes for 983 days of his calculation period. Given the duration of the trips abroad, the relatively short periods of time spent in Canada prior to July 1998 and the daughters' accompaniment of their parents abroad, the pattern of physical presence in Canada indicates visiting rather than returning home.
[8] In this case, the absences of the applicant are extensive and cover almost the entire period since the applicant entered Canada as a permanent resident. There are no mitigating factors. The applicant asserts that she was absent for the sole purpose of accompanying her husband on his business trips. The husband's business, however, is ongoing. It has not been alleged that the applicant's husband was absent due to temporary employment outside Canada under the control of a Canadian employer. The applicant further asserts that she has had no connection to a country other than Canada since leaving Malaysia in 1984. It is illogical, however, to assume that during the relevant four year period the applicant had a stronger connection to Canada than to Dubai where she had spent most of her time.
[9] It is true that during the relevant four year period, the applicant and her husband opened bank accounts in Canada, held credit card accounts, obtained Ontario driver's licenses and health cards, purchased life insurance, obtained library cards, bought a house and a van, and filed tax returns. I do not find that the Judge improperly weighed these passive indicators.
[10] As was stated by Joyal J. in Canada (Secretary of State) v. Nakhjavani (1987), 13 F.T.R. 107 at para. 14 to 17:
It is conceded by the appellant that jurisprudence has given an extended meaning to the residency provisions under s. 5(1)(b) of the Citizenship Act. It was In Re Citizenship Act and in Re Antonios E. Papadogiorgakis, [1978] 2 F.C. 208, that Thurlow, A.C.J., as he then was, after making a detailed analysis of the statutory requirements and of the judicial interpretations given from time to time to the word "residence", concluded that the concept was not strictly limited to actual physical presence in a particular locality. It could include as well a situation where a person has a place of abode to demonstrate the reality of his residing there even though he might be away from it for part of the time. His Lordship, at page 214, had this to say:
"A person with an established home of his own in which he lives does not cease to be resident there when he leaves it for a temporary purpose whether on business or vacation or even to pursue a course of study. The fact of his family remaining there while he is away may lend support for the conclusion that he has not ceased to reside there. The conclusion may be reached, as well, even though the absence may be more or less lengthy. It is also enhanced if he returns there frequently when the opportunity to do so arises. It is, as Rand, J., appears to me to be saying in the passage I have read, "chiefly a matter of the degree to which a person in mind and fact settles into or maintains or centralizes his ordinary mode of living with its accessories in social relations, interests and conveniences at or in the place in question"."
The Papadogiorgakis case did not necessarily short-circuit the residency requirements of the Canadian Citizenship Act but it did remove it from the numbers-crunching game of figuring out whether or not any particular applicant had physically resided in Canada for three-quarters of the time during a four-year period. It imposed on the courts and enquiry covering both intention and fact, neither of these elements being considered determinative by itself. A self-serving declaration of intention therefore might have little weight unless it were buttressed by objective facts representing tangible expressions of that intention i.e. ownership of residential property, car registration, bank accounts, club or association memberships, and particularly, the continuing presence in Canada of immediate family members and to whom an individual might return from time to time even for only brief periods of time.
Similarly, objective facts by themselves might not be conclusive if they only indicated some kind of presence in Canada but where a contrary intention to make of Canada one's place of residence became self-evident. An example of this would be an applicant who is landed in Canada, rents space with a bed in it, opens an agency, appoints someone to run it, and then returns to his country of origin to live with family and friends and to carry on his main business as usual. If facts such as these were to come out of an enquiry, it would be logical to conclude that the applicant has not even met the prime residency test which the statute imposes. Such a person might be a perfectly good landed immigrant but it would not entitle him to citizenship four years later.
I should observe that in cases where prolonged absences from Canada are put to the test, a distinction must always be kept in mind between the status conferred to a landed immigrant under the Immigration Act, 1976 and the granting of citizenship under the Citizenship Act. A landed immigrant is always entitled to re-admission to Canada so long as the provisions of s. 24 of the Immigration Act, 1976 are respected. The grant of citizenship, however, is something else. It confers special status to a person, a status recognized and respected throughout the world. It attaches not only to the person but to his progeny as well. It bestows a particular identity which is perpetual and indefeasible.
(My emphasis)
[11] Residence must first be established before it can be maintained (See Chan v. Canada (M.C.I.), [2002] F.C.J. 376, at para. 16, Pelletier J.). According to the evidence on file in this case, the applicant appears to have settled permanently and centralized her mode of living in Canada since her last return to Canada in the middle of the summer of 1998. In fact, the applicant's daughters were enrolled, in September 1998, at St. Anne Catholic School in Richmond Hill, Ontario, where the family owns a home. The applicant also became an active volunteer at the school, and the family enrolled as members of a local church. But, the mere fact that the applicant has established strong ties in Canada during the 10 month period immediately preceding her application for citizenship does not provide a sufficient basis upon which to count her earlier absences toward the residency requirements found in paragraph 5(1)(c) of the Act, absent of any convincing evidence of actual residence establishment before July 1998. That being so, the premature character of the application made in May 1999 does not constitute a bar for the filing of a fresh application, and accordingly, the above time of residence can be counted toward a fresh application and may be added to any other time of residence in Canada during the relevant four year period.
[12] In conclusion, despite applicant's counsel's able arguments, and after having read the Citizenship Judge's decision, including her completed document entitled "Reasons for Decision Regarding Residence" and accompanying notes (Tribunal Record at pp. 32-35), I am unable to find any material error, misinterpretation or departure from the approach taken by the Court in Citizenship Act (in re) and in Re Papadogiorgakis, [1978] 2 F.C. 208 (F.C.T.D.) at pp. 213-4 or Re Koo, supra at pp. 293-4, which would either constitute an error of law or otherwise render her decision unreasonable whatever test is used here (See Lam v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 410; Chen v. Canada (Minister of Citizenship and Immigration, [2001] F.C.J. No. 1693; andLin v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 492).
ORDER
1. For the above reasons, the appeal from the decision of the Citizenship Judge dated March 14, 2001 is hereby dismissed.
Luc Martineau
______________________________
Judge
FEDERAL COURT OF CANADA
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
DOCKET: T-710-01
STYLE OF CAUSE: LAURA CHRISTINE DE LIMA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, JUNE 5, 2002
REASONS FOR ORDER AND ORDER BY: MARTINEAU J.
DATED: WEDNESDAY, AUGUST 14, 2002
APPEARANCES BY: Mr. Stephan W. Green
For the Applicant
Mr. Greg George
For the Respondent
SOLICITORS OF RECORD: Green and Spiegel
Barristers and 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