Date: 20000602
Docket: T-1436-98
Ottawa, Ontario, this 2nd day of June 2000
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
SATISHBAI RAMBAI PATEL
Respondent
REASONS FOR ORDER AND ORDER
PELLETIER J.
[1] This is an appeal by the Minister of Citizenship and Immigration from the decision of Citizenship Judge R. Meagher approving the application for citizenship of the respondent, Satishbai Rambai Patel. The Minister objects to the granting of citizenship to an individual who was out of the country for 794 days in the four years preceding his application for citizenship, thereby falling 429 days short of the 1095 days in the four years preceding the date of his application as specified by paragraph 5(1)(c) of the Citizenship Act. The respondent who represented himself argued that he had centralized his mode of life in Canada and that his absences were dictated by his business interests. His position was that his periods of absence should count as constructive residence so as to satisfy the residency requirement.
[2] The decision of the Citizenship Judge reads as follows:
| Despite a residence shortage of 413 days, the applicant, through credible declaration of action and intent and the provision of irrefutable documentation, has, within the THURLOW FRAMEWORK, given proof of both the establishment and maintenance of a bona fide Canadian centrality of living. In the relevant period between LANDING and FIRST ABSENCE, the customary indicia were put in place: domicile, SIN, Health Insurance, bank account, registration in Canadian schools and establishment of a Canadian company. |
| Periods of absence were attributable to ongoing efforts to promote Canadian-made products and services. |
| Throughout all periods of absence, ties for a Canadian pied-à-terre were fully maintained. |
| All outside-Canada resources/holdings were terminated appropriately and at the proper time. |
| The applicant"s Canadian business venture now flourishes and employs 8 Canadian citizens. |
| All other requirements for citizenship having been met, I have, therefore, approved this application. |
[3] The reference to the THURLOW FRAMEWORK is a reference to the decision of the former Chief Justice in In Re Papadogiorgakis, [1978] 2 F.C. 208, (1978) 88 D.L.R. (3d) 243, in which he found that an applicant who fell short of the statutory 1095 days of residence could count his periods of absence as periods of residence. In order to do so, the applicant had to show that he had "centralized his mode of existence" in Canada prior to his absences and had not ceased to do so during his absences. Thus did the notion of constructive residence become known to Canadian citizenship law. Its unhappy career since its introduction to this branch of the law is too well known to bear repeating.
[4] The applicant arrived in Canada as a landed immigrant on August 4, 1990. He indicates that he attempted to find work but the economic downturn made it difficult for him to do so. He travelled to England and Tanzania for periods of time where he carried on his own business. While in Canada, he bought a house and a car for his family which remained in Canada while he travelled. He obtained a social insurance number, an Ontario health card, and a library card; he also established a bank account. He paid Canadian income tax from at least 1993.
[5] His periods of absence from Canada were numerous. His first trip abroad after his landing in Canada was from February 15, 1991 to June 25, 1991. He remained in Canada except for a brief holiday in the United States until February 12, 1992 when he was absent until May 4, 1992. This pattern of lengthy absences continued until the date of application for citizenship and beyond. His periods of absence in the four years preceding his application for citizenship are as follows:
- between 1993/04/11 to 1993/06/19 for 69 days;
- between 1993/09/01 to 1993/10/22 for 51 days;
- between 1993/12/22 to 1993/12/31 for 09 days;
- between 1994/02/02 to 1994/04/11 for 68 days;
- between 1994/05/12 to 1994/05/19 for 07 days;
- between 1994/05/28 to 1994/08/05 for 69 days;
- between 1994/10/12 to 1995/02/01 for 112 days;
- between 1995/05/14 to 1995/10/11 for 150 days;
- between 1996/01/08 to 1996/04/03 for 86 days;
- between 1996/05/18 to 1996/07/24 for 67 days;
- between 1996/09/14 to 1996/12/17 for 94 days; and
- between 1997/03/15 to 1997/07/07 for 114 days*;
* (12 days of which is within 4 year period)
| Absences within 4 year period: 794 days |
[6] The applicant"s business appears to have consisted of sourcing swimming pool and spa equipment in North America for Tanzanian companies. He incorporated a company called Technocrafts International (Canada) in 1993 under which he appears to have carried on business. He presented some evidence of attempts to purchase a Canadian business in the period after September 1997 which is outside the four-year residence period. While that evidence may be relevant to the question of attachment to Canada, it is not relevant to the question of residence. To all appearances, the applicant"s pattern of absences appears to be continuing.
[7] In Lam v. Canada (Minister of Citizenship & Immigration) (1999) 164 F.T.R. 177, [1999] F.C.J. No. 410, (Federal Court of Canada, Trial Division), Lutfy J. (as he then was) reviewed the jurisprudence on this issue and characterized the issue as one of standard of review. Given the inconsistent decisions in this Court, all of which are of equal authority to members of the Citizenship Court, Lutfy J. found that so long as a member of that Court followed one of the approaches adopted by members of this Court, his/her decision should not be interfered with:
| The appropriate standard, in these circumstances, is one close to the correctness end of the spectrum. However, where citizenship judges, in clear reasons which demonstrate an understanding of the case law, properly decide that the facts satisfy their view of the statutory test in paragraph 5(1)(c ), the reviewing judges ought not to substitute arbitrarily their different opinion of the residency requirement. It is to this extent that some deference is owed to the special knowledge and experience of the citizenship judge during this period of transition. |
[8] In this case, the Citizenship Judge purports to have applied the decision of Thurlow J. in Re Papadogiorgakis, supra. The Minister challenges the decision, not on the basis that Papadogiorgakis has not been properly applied but that the approach exemplified by Re Harry (1998) 144 F.T.R. 141 (Fed. T.D.) ought to have been applied. That approach simply counts the actual days of physical residence on the theory that an allowance of one year"s absence has already been provided for and that further absences, for whatever reason, disqualify the candidate.
[9] As I commented in Leung v. Canada (1999) 2 Imm. L.R. (3d) 297:
| Whatever the proper test of residence for purposes of s. 5(1)(c) of the Citizenship Act, it |
| is recognized by a cross section of judges that absence from the country for the purpose of earning one's living and supporting one's family does not interrupt residence if residence has been established. In Lo, Re (1996), 128 F.T.R. 247 (Fed. T.D.), a decision of Mr. Justice MacKay, the applicant came to Canada from Hong Kong as a permanent resident on July 20, 1990. He moved directly into his own home, and acquired all the usual trappings of residence: driver's license, health coverage, bank accounts etc. Unable to find employment in Canada, he accepted a position with his former employer in 1992 which required him to be out of the country for lengthy periods of time. In the four years preceding his application for citizenship, he had only been in the country for 475 days, a shortfall of 620 days with respect to the 1095 days referred to in the Act. MacKay J. found that he had established and maintained his residence in Canada and allowed the appeal. The similarities with the present case are numerous and persuasive. |
[10] This case appears to fall within the same class as Leung, supra. Like Leung, there is not much, if any, evidence of the applicant"s involvement in the social life of Canada but as I said then:
| The presence of such activity negates an inference that Canada is not the centre of one's usual existence. The absence of it does not prove the contrary, since everyone has a different capacity and tolerance for social activity. Those with a lower tolerance do not necessarily have less attachment to the country. |
[11] In the circumstances, I do not find that there is ground upon which to disturb the Citizenship Judge"s decision. The appeal will be dismissed.
ORDER
The appeal of the order of the Citizenship Judge dated May 28, 1998 is dismissed.
"J.D. Denis Pelletier"
Judge