Date: 19990428
Docket: T-759-98
IN THE MATTER OF THE CITIZENSHIP ACT,
R.S.C. 1985, c. C-29
AND IN THE MATTER OF an appeal from the
decision of a Citizenship Judge
AND IN THE MATTER OF
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Appellant
- and -
SUMITRA DEVI UPPAL
Respondent
REASONS FOR JUDGMENT
SIMPSON, J.
1� This is an appeal by the Minister of Citizenship and Immigration (the "Minister") by way of trial de novo under section 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 (the "Act") and section 21 of the Federal Court Act, R.S.C. 1985, c. F-7, from a decision of a Citizenship Judge dated February 19, 1998, wherein the Judge approved Mrs. Sumitra Devi Uppal's application for a grant of Canadian citizenship.
THE FACTS
2� Mrs. Uppal (the "Respondent") was born on June 25, 1932. She is a widow and is a citizen of India. She first came to Canada in 1984 with her husband, three of her five children, and her mother. She became a landed immigrant on November 11, 1988, and, after her husband's death, applied for Canadian citizenship on January 22, 1997. She gave evidence with difficulty in this appeal in spite of the assistance of her son-in-law who served as an interpreter. She clearly had little memory of the details of her trips and the status of her family. She appeared upset and frustrated by the questions put to her. In the result, many questions were not clearly answered.
3� The residency requirement in section 5(1)(c) of the Act is at issue in this case. It provides:
Grant of Citizenship
5.(1) The Minister shall grant citizenship to any person who
...
(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:
(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
(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; ...
4� The four-year period for the assessment of the Respondent's residence (the "Period") runs from January 22, 1993, to January 22, 1997. In this Period, residence of 1095 days is required. However, according to her application for citizenship, the Respondent was physically absent for 726 days. The particulars are as follows:
- from December 5, 1993, to March 5, 1994, for 90 days;
- from November 24, 1994, to October 31, 1995, for 341 days; and
- from March 10, 1996, to December 30, 1996, for 295 days.
5� Her residence questionnaire shows a shorter absence of 616 days as follows:
- from November 11, 1994, to November 10, 1995, for 365 days; and
- from March 25, 1996, to December 31, 1996, for 251 days.
6� The discrepancy was not explained, but I believe it to be insignificant. Both documents demonstrate substantial absence in the Period.
7� The issue is whether, despite substantial physical absence, the Respondent can be considered to have been a resident for 1095 days during the Period.
8� The Respondent testified that, during the Period, she resided at her children's homes. At the relevant time, she had three children in Canada. Her two other children resided in India, as did her brother.
9� There is no evidence that the Respondent moved any personal effects to Canada. The family had a home in India which has, or will be, inherited by her two sons. It is not clear whether she has some kind of life interest in the meantime, or whether one son currently uses the house. In any event, the Respondent stays with her brother and her sister, or her son - the evidence was contradictory on this point - on her trips to India.
10� The Respondent was apparently greatly distressed by the fact that her family was split between India and Canada. Following hospitalization for an anxiety attack, her Canadian doctor suggested that she spend a substantial amount of time in India to recover from depression. This resulted in a one-year stay in India. Other absences were also visits to family in India.
11� The Respondent's passport, issued on February 23, 1994, which was during the Period, shows a permanent address in New Delhi. However, other documents such as tax returns, a social insurance card and health card are indicia of residence in Canada.
12� There is no evidence about how the Respondent spent her time in Canada except that she visited her temple on a regular basis.
DISCUSSION
13� To satisfy the residency requirement of the Act in the face of substantial physical absence, the Respondent must show that she centralized her mode of living in Canada to a degree that residence can be viewed as continuous in spite of physical absence.
14� I cannot conclude in the Respondent's favour on this appeal. Even if she initially centralized her mode of living in Canada, her long absences were inconsistent with maintaining residence. As well, I am not sure, on the scant evidence before me, that she ever actually centralized her mode of living here. She may better be described as a person who, in the Period, had equal ties in Canada and India.
15� This is not a criticism. She clearly felt that she had responsibilities in both countries and it is admirable that she attended to them. However, the result is that her application for citizenship is premature. Accordingly, the Minister's appeal will be allowed.
(Sgd.) "Sandra J. Simpson"
Judge
Vancouver, B.C.
April 28, 1999
NAMES OF COUNSEL AND SOLICITORS OF RECORD
IN THE MATTER OF the Citizenship Act,
R.S.C. 1985, c. C-29
AND IN THE MATTER OF an appeal
from the decision of a Citizenship Judge
AND IN THE MATTER OF
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Appellant
- and -
SUMITRA DEVI UPPAL
Respondent
COURT NO.: T-759-98
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 25, 1999
REASONS FOR JUDGMENT: SIMPSON, J.
DATED: April 28, 1999
APPEARANCES:
Ms. A. Leena Jaakkimainen for Appellant
Ms. Sumitra Devi Uppal on her own behalf
Mr. Peter K. Large for amicus curiae
SOLICITORS OF RECORD:
Mr. Morris Rosenberg for Appellant
Deputy Attorney General of Canada
Peter K. Large for amicus curiae
Toronto, Ontario