Date: 20000524
Docket: T-2028-98
Ottawa, Ontario, this 24th day of May, 2000
| PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O"KEEFE |
BETWEEN:
ABU HAMED RAHIM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O"KEEFE J.
[1] This is an appeal of the decision of Citizenship Judge Gordana Caricevic-Rakovich dated August 4, 1998 wherein Abu Hamed Rahim ("applicant") was denied Canadian citizenship on the grounds that he had not met the residency requirements of paragraph 5(1)(c) of the Citizenship Act .
[2] The applicant obtained permanent resident status in Canada on July 19, 1994 and he applied for Canadian citizenship on July 24, 1997.
[3] The applicant was absent from Canada on the following dates:
| From Yr/Mo/Day |
To Yr/Mo/Day |
Destination |
Reason |
Number of Days Absent |
| 1994/09/14 |
1995/01/24 |
Bahrain |
To Work |
133 |
| 1995/02/11 |
1995/07/04 |
Bahrain |
To Work |
152 |
| 1995/07/24 |
1995/07/28 |
United States |
To Technical Conference |
5 |
| 1995/10/26 |
1996/01/17 |
Saudi Arabia |
To Work |
84 |
| 1996/02/25 |
1996/07/04 |
Saudi Arabia |
To Work |
130 |
| 1996/07/08 |
1996/07/12 |
United States |
To Technical Conference |
5 |
| 1996/09/05 |
1997/01/09 |
Saudi Arabia |
To Work |
127 |
| 1997/02/15 |
1997/06/26 |
Saudi Arabia |
To Work |
132 |
| Total |
768 |
| [4] The applicant attended an interview before the Citizenship Judge on June 17, |
1998 and at the interview, the Citizenship Judge questioned him about his absences from Canada and the circumstances of his life in Canada. The Citizenship Judge was trying to determine whether the applicant could be considered to be a resident of Canada during the periods of his physical absence. The Citizenship Judge considered the six factors listed inKoo, Re [1993] 1 F.C. 286 at pages 293-94 (F.C.T.D.).
| [5] The applicant was absent from Canada for 768 days during the four years prior to |
his citizenship application.
Issues
[6] Does the applicant meet the residency requirements of paragraph 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29?
Law
[7] Paragraph 5(1) (c) of the Citizenship Act, supra, states:
| 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; |
| 5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois_: . . . . . . 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) un demi-jour pour chaque jour de résidence au Canada avant son admission à titre de résident permanent, (ii) un jour pour chaque jour de résidence au Canada après son admission à titre de résident permanent; |
| [8] In Koo, Re (1992) 59 F.T.R. 27 (F.C.T.D.) at page 31, Madame Justice Reed |
| outlined the following test when dealing with residency requests under paragraph 5(1)(c) of the Citizenship Act, supra: |
| [10] The conclusion I draw from the jurisprudence is that the test is whether it can be said that Canada is the place where the applicant "regularly, normally or customarily lives". Another formulation of the same test is whether Canada is the country in which he or she has centralised his or her mode of existence. Questions that can be asked which assist in such a determination are: |
(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 dependents (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 absences - if an applicant is only a few days short of the 1095 day total it is easier to find deemed residence than if those absences are extensive;
(5) is the physical absence caused by a clearly temporary situation such as employment as a missionary abroad, following a course of study abroad as a student, accepting temporary employment abroad, accompanying a spouse who has accepted temporary, employment abroad;
(6) what is the quality of the connection with Canada: is it more substantial than that which exists with any other country.
Analysis and Decision
| [9] The applicant submits that the Citizenship Judge based her decision on an error of |
law by failing to follow the decision of this Court in Re Papadogiorgakis [1978] 2 F.C. 208 (T.D.). He argues that he has met the "three-part test" outlined in Papadogiorgakis, supra : he established a residence in Canada before leaving; he intended to return to Canada when leaving; he had a pied-à-terre in Canada. He submitted that in similar cases, the residency requirements have been interpreted flexibly to provide relief from the requirement of physical presence in Canada.
| [10] The respondent submits that Justice Muldoon"s interpretation, in Re Pourghasemi |
(1993) 19 Imm. L.R. (2d) 259 (F.C.T.D.) is most consistent with Parliament"s intention, as it requires actual physical presence in Canada.
| [11] In summary, the Citizenship Judge applied the principles of Re Koo, supra, as |
follows:
(1) Physical presence in Canada for a long period prior to recent absences
It was noted that the applicant worked abroad for long periods of time throughout the relevant time period, beginning soon after permanent resident status was obtained.
(2) The place of residence of the applicant"s immediate family and dependents
The applicant"s spouse and children are resident in Canada.
(3) Whether the pattern of movement indicates a returning home or a visit
The Citizenship Judge felt that the pattern of movement was indicative of visits to the applicant"s immediate family, rather than a return home.
(4) The extent of the physical absences
The applicant was physically present in Canada for slightly less than one year; and absent for slightly more than two years.
(5) The cause of, and reasons for, the absences
The applicant"s employment abroad was considered not to be a clearly temporary or transitory circumstance, as the applicant had always been employed abroad and this situation continued throughout the relevant time period.
(6) The quality of the applicant"s connection to Canada vis a vis any other country or place
The Citizenship Judge considered the applicant"s ties to Canada to be "strong", due to the status of his family members (permanent residents; one son a citizen); his ownership of real property in Canada; and his payment of taxes. However, she was not convinced that his attachment to Canada was stronger than to any other place, due in part to the applicant"s pattern of seeking employment overseas.
The Citizenship Judge came to the conclusion that the applicant could not be considered resident in Canada during his absences and therefore denied his application for citizenship.
| [12] It is now generally accepted that an applicant need not be physically present in |
Canada for all of the 1095 days, but in order for the time spent away from Canada to count toward the 1095 days, the applicant must have established residence in Canada before the absences commenced and the absences must have been for temporary situations such as temporary employment or a family crisis.
| [13] The issue now becomes whether the applicant"s absences were caused by |
temporary employment. I have reviewed the work patterns of the applicant and I am of the opinion that the work patterns of the applicant outside of Canada are on a regular basis over the period 1994 to 1997.
| [14] The applicant was only in Canada from July 19, 1994 to September 14, 1994 |
before the first absence for work commenced. This is less than two months and as well, it must be noted that in the four years preceding his application, he was absent from Canada for a period of 768 days. It is my opinion that in the circumstances of this case, the applicant did not have the opportunity to become Canadianized as outlined by Muldoon J. in Pourghasemi, Re, supra, at page 123 by:
. . . This happens by "rubbing elbows" with Canadians in shopping malls, corner stores, libraries, concert halls, auto repair shops, pubs, cabarets, elevators, churches, synagogues, mosques and temples - in a word wherever one can meet and converse with Canadians . . .
| [15] After having reviewed the decision of the Citizenship Judge and the materials |
filed with the Court, I am of the opinion that the decision of the Citizenship Judge was correct.
| [16] Although I have found that the Citizenship Judge was correct, it may well be that |
in light of the decisions in Canada (Director of Investigation and Research) v. Southam Inc. [1997] 1 S.C.R. 748 and in Pushpanathan v. Canada (Minister of Citizenship and Immigration) [1998] 1 S.C.R. 982, the standard of review may be more deferential than correctness but it is not necessary that I make this finding in this case.
| [17] The appeal is therefore dismissed. |
ORDER
| [18] IT IS ORDERED that the appeal of the applicant is dismissed. |
"John A. O"Keefe"
J.F.C.C.
Ottawa, Ontario
May 24, 2000