Date: 19990611
Docket: T-1884-98
OTTAWA, ONTARIO, THIS 11TH DAY OF JUNE 1999
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN :
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
ZINAIDA MINDICH
Respondent
REASONS FOR ORDER and ORDER
PELLETIER J.
[1] Zinaida Mindich, an Israeli citizen born in the Ukraine, became a landed immigrant on June 29, 1994. On July 3, 1997 she applied for citizenship. The Citizenship Judge was satisfied that she met the criteria for citizenship but the Minister of Citizenship and Immigration was not.
[2] The facts are relatively straightforward. In 1989,1991, and 1992 Mrs Mindich came to Canada as a visitor to visit her son and her grandchildren. In 1994 she came as a landed immigrant. When landing in Canada she lives in rented accommodation in Toronto which she maintains while she is away. She maintains a bank account which shows a pattern of deposits sufficient to pay her rent but little other activity. She has filed an Income tax return for the 1997 taxation year in which her only income was her foreign pension income. She has a Social Insurance number and a health services card. She has a son and grandchildren in Canada.
[3] Unfortunately, Mrs. Mindich`s husband has been very ill and receiving treatment in Israel. This is confirmed in a letter which indicates that he was hospitalized during the months of March and April 1997 due to complications in his cancer treatment and a number of small strokes.
[4] On her residence questionnaire, Mrs. Mindich declares the following periods of presence in Canada:
June 29,1994 to December 29, 1994 183 days
June 7, 1995 to December 7, 1995 183 days
May 1, 1996 to October 31, 1996 183 days
April 20, 1997 to March 8, 1998321 days
For purposes of the residency calculations, the relevant breakdown would be:
Date of Application: July 3, 1997
Start date:July 3 1993
Present in Canada July 3, 1993 to July 2, 1994 - 0 days
Present in Canada July 3, 1994 to July 2, 1995 - 206 days
Present in Canada July 3, 1995 to July 2, 1996 - 219 days
Present in Canada July 3, 1996 to July 2, 1997 - 193 days
Present in Canada July 3, 1994 to July 3 1997 = 618 days
[5]
The Minister of Citizenship and Immigration appeals the decision of the Citizenship Judge that Mrs. Mindich has met the residency requirements of the Act. The Minister's position is that Mrs. Mindich has not established residency in Canada and, if she has, she has not been physically present in the country for the period prescribed by the Act.
[6] The part of the Act which applies to this dispute is section 5:
5. (1) The Minister shall grant citizenship to any person who
5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois_:
(a) makes application for citizenship;
a) en fait la demande;
(b) is eighteen years of age or over;
b) est âgée d'au moins dix-huit ans;
(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_:
(i) for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and
(i) un demi-jour pour chaque jour de résidence au Canada avant son admission à titre de résident permanent,
(ii) for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence;
(ii) un jour pour chaque jour de résidence au Canada après son admission à titre de résident permanent;
(d) has an adequate knowledge of one of the official languages of Canada;
d) a une connaissance suffisante de l'une des langues officielles du Canada;
(e) has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship; and
e) a une connaissance suffisante du Canada et des responsabilités et avantages conférés par la citoyenneté;
(f) is not under a deportation order and is not the subject of a declaration by the Governor in Council made pursuant to section 20.
f) n'est pas sous le coup d'une mesure d'expulsion et n'est pas visée par une déclaration du gouverneur en conseil faite en application de l'article 20.
[7] While this comes before this Court as an appeal from the decision of the Citizenship Judge, it is not necessarily a case where the Court can simply substitute its opinion for that of the Citizenship Judge. As was pointed out by my brother Lutfy J. in Lam v. Minister of Citizenship and Immigration [1999] F.C.J. 410, the Citizenship Court is a specialized tribunal and its decisions ought to be accorded a certain deference given the special expertise of the Citizenship Court in its subject matter. This is reflected in the comments of Teitlebaum J. in Re Kerho (1988) 21 F.T.R. 180 at p. 184:
...although the appeal is effectively a trial de novo, it is incumbent upon the appellant to show that the Citizenship Judge exercised her discretion on a wrong principle, or on a complete misapprehension of the facts or for some other compelling reason requiring my interference in her decision.
Teitlebaum J. made his comments at a time when citizenship appeals were by trial de novo. His remarks are all the more apt in the context of an appeal on the record.
[8] The particular issue which has given rise to conflicting opinions in this Court is the construction of the residency requirements. Should the requirement that the applicant have accumulated 3 years of residence in Canada in the 4 years immediately preceding his application be construed as requiring:
1- that the applicant has been physically present in Canada for at least 1095 days in the four years immediately preceding his/her application ( Re Harry [1998], F.C.J. No. 189, (1998) 144 F.T.R. 141 (T.D.)) ; or
2- that the applicant must have centralised his mode of living in Canada for at least three years prior to his application, notwithstanding that he may have been out of the country for more than one year in the immediately preceding four years? Re Papadogiorgakis, [1978] 2 F.C. 208 (T.D.).
Judges of this Court have chosen to adopt one or the other of these positions, according to their best judgment. Judges of the Citizenship Court, on the other hand, have generally tended to adopt the less restrictive view in Re Papadogiorgakis, supra . In those cases where the Minister appeals the decision of the Citizenship judge on the issue of residence, the outcome may well depend upon which of these two approaches the judge hearing the matter has adopted.
[9] Lutfy J. has redefined the issue as one of standard of review as opposed to the correctness of one position or the other. Given the divergence in the views of the members of the Federal Court, a Citizenship Judge could choose one approach or the other and not be wrong on that count alone. The function of the judge sitting in appeal is to verify that the Citizenship Judge has properly applied the test of his or her choosing. I believe that this approach properly characterizes the issue, and I adopt it as my own.
[10] In his decision the Citizenship Judge gave the following reasons:
The Applicant is 476 days short of the required 1095. The reason for her absence is to visit her husband who is ill (see attached documents). This man is her second husband - he is not applying for citizenship. Her only family is the son in Toronto who cares for her and a daughter in New York. She received Returning Resident Permit during absence. It appears that her only home is with her son in Toronto. Her 2nd husband who is being looked after by his family lives in Israel. She meets residence requirements as per Thurlow.
[11] In her application for citizenship, Mrs. Mindich indicated that the reason for her absences from Canada over the winters of 1994-95, 1995-96 and 1996-97 was to visit her children in Israel. In her residence questionnaire, Mrs. Mindich indicated that "...the only reason I go to Israel is because my husband is ill and in hospital in Israel and I am unable to move him". There is an inconsistency as to the reason for Mrs. Mindich's absences from Canada.
[12] Mrs. Mindich also notes in her residence questionnaire that "my son and grandchildren are the only family I have except for my sick husband." This is at odds with the Citizenship Judge's comments about a daughter in New York, as well as the declaration that she was absent from the country to visit her children in Israel.
[13] The Citizenship did not address his mind to the nature and quality of Mrs. Mindich's attachment to Canada, focussing solely on the family relationship in respect of which there is, at a minimum, some ambiguity. The evidence in support of Mrs. Mindich's attachment to Canada appears to consist entirely of relatively passive elements. She has maintained an apartment since May 1, 1996. Her previous residence, which she describes as having rented, was at 5 Fisherville # 1004, Toronto, Ontario. On her Record of Landing, Mrs. Mindich gave the name of her son as the person willing to assist her in Canada. The son's address is 5 Fisherville Street #1004, Willowdale, Ontario. This may indicate that she has only had her own address in Canada for slightly more than a year in the four years preceding her application.
[14] Mrs Mindich has a bank account whose activity appears to reflect few transactions other than paying the rent. She has a health services card and a social insurance number. There is no indication that she owns any property in Canada. Her source of income is a pension which presumably originates outside Canada.
[15] Taken together, this evidence falls short of establishing the kind of connection with Canada contemplated by Thurlow, A.C.J. (as he then was) in Re Papadogiorgakis. It is more consistent with Mrs. Mindich acquiring a "pied-à-terre" in Canada to facilitate visiting her son while maintaining her former life in Israel. I find in the record little evidence capable of supporting a conclusion that Mrs. Mindich has centralized her mode of life in Canada for three years preceding her application for citizenship. While the Citizenship Judge is entitled to some deference in his assessment of the quality of Mrs. Mindich's attachment to Canada, I must, with respect, disagree with his conclusion. I therefore allow the Minister's appeal.
[16] In closing, I note for the record that Mrs. Mindich was not present for the hearing of the appeal. The Affidavit of Service of the Notice of Application does not establish that Mrs. Mindich was personally served with the Notice of Application. However, she subsequently filed a Notice of Appearance indicating her intention to oppose the application. Pursuant to Rule 147, I am prepared to validate service on the ground that the filing of the Notice of Appearance is evidence that the Notice of Application came to Mrs. Mindich's attention. Mrs. Mindich was advised of the date of the hearing by the Registry by ordinary mail. Counsel for the Minister advised the Court that her office had received a call from someone on behalf of Mrs. Mindich indicating that she was concerned about the appeal and did not know what to do. She was apparently advised to contact the Federal Court for more information. There is no indication in the file of any contact being made with the Court.
[17] There may be circumstances in which the Court would not allow an Applicant his/her remedy when entitlement had been established because the Respondent, though having notice of the proceedings, did not attend. This is not one of those cases, primarily because Mrs. Mindich is free to bring another application for citizenship at any time. This decision does not foreclose Mrs. Mindich's rights beyond the present application.
"J.D. Denis Pelletier"
Judge