Date: 20000629
Docket: T-2163-97
Ottawa, Ontario this 29th day of June, 2000
| PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O"KEEFE |
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
- and -
JALIL UR RAHMAN
Respondent
REASONS FOR ORDER AND ORDER
O"KEEFE J.
[1] This is an appeal under subsection 14(5) of the Citizenship Act, 1974-75-76, c.108 (the "Act") and section 21 of the Federal Court Act brought on behalf of the Minister of Citizenship and Immigration ("Minister") from the decision of Citizenship Judge J. Hong, dated August 7, 1997, wherein the Citizenship Judge approved the application of Jalil Ur Rahman ("respondent") for citizenship.
[2] By his decision dated August 7, 1997, the Citizenship Judge decided that the respondent had met the residence requirements of paragraph 5(1)(c) of the Act. He found that the respondent had a shortage of 801 days with respect to meeting the minimum requirement of at least three years residence in Canada within the four years immediately preceding the date of his application.
[3] The respondent is a citizen of Pakistan and he acquired landed immigrant status on September 1, 1993 when he first came to Canada with his wife and three children.
[4] The respondent left Canada on September 9, 1993 for business reasons and did not return until March 3, 1994.
[5] The respondent"s calculations of his absences are as follows:
| Date |
Destination |
Reason |
Number of Days Absent |
| 93/09/09 to 94/03/03 |
Middle East |
Business |
175 |
| 94/03/14 to 94/07/22 |
Middle East |
Business |
130 |
| 94/08/08 to 94/08/21 |
Middle East/U.K. |
Business |
13 |
| 94/09/09 to 95/01/03 |
Middle East |
Business |
116 |
| 95/01/16 to 95/04/02 |
Middle East |
Business |
76 |
| Date |
Destination |
Reason |
Number of Days Absent |
| 95/05/01 to 95/05/19 |
Middle East |
Business |
18 |
| 95/06/14 to 95/06/15 |
U.S.A. |
Business |
1 |
| 95/06/27 to 95/07/01 |
Greece |
Business |
4 |
| 95/07/14 to 95/07/31 |
Middle East |
Business |
17 |
| 95/08/10 to 95/08/14 |
U.S.A. |
Business |
4 |
| 95/09/08 to 95/09/22 |
Middle East |
Business |
14 |
| 95/10/17 to 95/11/22 |
Middle East |
Business |
36 |
| 95/12/17 to 96/01/02 |
Middle East |
Business |
16 |
| 96/01/07 to 96/05/02 |
Middle East |
Business |
116 |
| 96/05/13 to 96/06/22 |
Middle East |
Business |
40 |
| 96/07/01 to 96/07/07 |
Middle East |
Business |
6 |
| TOTAL |
831 |
| [6] The respondent applied for Canadian citizenship on September 30, 1996. |
| [7] The respondent, while in Kuwait, resided at a guest house of a business associate. |
| [8] The purpose of the respondent"s travel was to find foreign investors willing to |
invest in existing businesses in Canada.
| [9] The respondent stated that he resided at Brampton, Ontario from September 1, |
1993 until September 30, 1994. From September 30, 1994 to November 16, 1996, he resided at 55 Skymark Drive, Suite 702, Willowdale, Ontario. According to the information provided by the respondent, the agreement of purchase and sale for 55 Skymark Drive, Suite 702, Willowdale was not entered into until July 27, 1994. On August 9, 1996, the respondent and his wife entered into an agreement of purchase and sale to buy a property at 61 Chadwick Crescent, Richmond Hill, Ontario.
| [10] The respondent and others incorporated three Ontario registered corporations to |
purchase three existing and operating Coffee Time franchises as follows:
| 1. First shop in June, 1995; |
| 2. Second shop in July, 1996; |
| 3. Third shop in July, 1996. |
These shops currently employ approximately 20 people.
| [11] Before the respondent"s first absence from Canada, he established their first |
residence in Canada at 64 Parkside Drive, Brampton, Ontario. He applied for social insurance numbers and applied for Ontario health cards.
| [12] The respondent did other things such as establishing bank accounts, Bell Canada |
accounts and he obtained a library card.
Issue
| [13] Whether the respondent satisfied the requirement prescribed by paragraph 5(1)(c) |
of the Citizenship Act, 1974-75-76, c. 108 that, within the four years immediately preceding the date of his application for citizenship, he had accumulated at least three years (1,095 days) of residence in Canada.
Law
| [14] Subsection 5(1) of the Act states: |
| 5. (1) The Minister shall grant citizenship to any person who (a) makes application for citizenship; (b) is eighteen years of age or over; (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; (d) has an adequate knowledge of one of the official languages of Canada; (e) has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship; and (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. |
| 5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois_: a) en fait la demande; b) est âgée d'au moins dix-huit ans; 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; d) a une connaissance suffisante de l'une des langues officielles du Canada; e) a une connaissance suffisante du Canada et des responsabilités et avantages conférés par la citoyenneté; 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. |
| Analysis and Decision |
| [15] The only point in issue in this appeal is whether the respondent satisfied the |
| residence requirements of paragraph 5(1)(c) of the Act. |
| [16] It is a requirement of paragraph 5(1)(c) of the Act that an applicant for citizenship |
| have three years (1,095 days) of residence in Canada in the four years immediately preceding the date of the application for citizenship. |
| [17] The decisions of this Court have held that in certain circumstances, periods of |
| time spent away (absences) from Canada can be counted as time to accumulate the required 1,095 days of residence that are dictated by paragraph 5(1)(c) of the Act. |
| [18] The respondent was absent from Canada for 831 days in the relevant period. He |
| was 801 days short of the required 1,095 days required by paragraph 5(1)(c) of the Act. |
| [19] The absences from Canada have only been counted towards the required residence |
| time of 1,095 days if an applicant has centralized his or her mode of living in Canada prior to the absences. |
| [20] Dube J. of this Court stated in Canada (Minister of Citizenship) v. Lo (January 22, |
| 1999), Docket T-1082-98 at page 2: |
| Physical presence in Canada throughout the period is less essential where a person has in mind and fact settled into or maintained or centralized his or her own ordinary mode of living in this country. That was the case of the student in the Papadogorgakis case (supra), who had established a mode of living in Nova Scotia before going to study in the United States. |
| Unfortunately such is not the case of the respondent here who, obviously, cannot have established a mode of living in Canada in only 7 days. |
| Consequently her application was premature. Now that she has completed her studies and has settled in Vancouver, she may in due course make a fresh application for Canadian citizenship and undoubtedly will be successful. |
| Thus the appeal of the Minister is allowed. |
| [21] It is my opinion that the respondent, in the present case did not establish a |
| centralized mode of living in Canada in the nine days that he was in Canada before his first absence of 175 days. Therefore, I am not prepared to count his periods of absences from Canada towards his residence requirement. As a result, the Citizenship Judge made a reviewable error when he ruled that the respondent had met the residence requirements of paragraph 5(1)(c) of the Act and granted the respondent citizenship. In my view, the Citizenship Judge erred whether a standard of review of reasonableness simpliciter or the "close to correctness" standard set out by Lutfy J. (as he then was) in Lam v. Canada (1999) 164 F.T.R. 177 (F.C.T.D.) is used. |
| [22] I have noted the activities undertaken by the respondent after his first absence but |
| these were not done before he first left Canada. |
| [23] The respondent"s application is premature and I have no doubt that the respondent |
| will become a citizen of Canada when he is able to satisfy the residence requirements of paragraph 5(1)(c) of the Citizenship Act. |
| [24] The application (appeal) of the Minister is allowed. |
| [25] This appeal was heard together with the appeal in Docket T-2162-97 and was |
| treated as a trial de novo as the appeal was filed under the former Federal Court Rules. |
| ORDER |
| [26] IT IS ORDERED that the application (appeal) of the Minister is allowed. |
| "John A. O"Keefe" |
| J.F.C.C. |
| Ottawa, Ontario |
| June 29, 2000 |