Date: 19991015
Docket: T-2366-98
OTTAWA, ONTARIO, THE 15TH DAY OF OCTOBER 1999
Present: THE HONOURABLE MR. JUSTICE LEMIEUX
Between:
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
PASCAL TENSAE WOLDEMARIAM
Respondent
ORDER
For the attached reasons, the Minister's appeal is allowed and the decision of the citizenship judge approving Mr. Woldemariam's citizenship application is quashed.
François Lemieux
J U D G E
Certified true translation
M. Iveson
Date: 19991015
Docket: T-2364-98
OTTAWA, ONTARIO, THE 15TH DAY OF OCTOBER 1999
Present: THE HONOURABLE MR. JUSTICE LEMIEUX
Between:
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
AMSALE WOLDEMARIAM
Respondent
ORDER
For the attached reasons, the Minister's appeal is allowed and the decision of the citizenship judge approving Mrs. Woldemariam's citizenship application is quashed.
François Lemieux
J U D G E
Certified true translation
M. Iveson
Date: 19991015
Docket: T-2366-98
Between:
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
PASCAL TENSAE WOLDEMARIAM
Respondent
Docket: T-2364-98
Between:
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
AMSALE WOLDEMARIAM
Respondent
REASONS FOR ORDER
LEMIEUX J.:
1 Mr. and Mrs. Woldemariam, citizens of Ethiopia, are respondents in these appeals by the Minister of Citizenship and Immigration (the Minister) against two decisions by citizenship judge Jeanine Beaubien, dated October 28, 1998, approving their citizenship applications filed on October 19, 1997.
2 Their applications were joined by the citizenship judge because the underlying facts are the same. Under the circumstances, the Court's reasons apply to both files.
3 In each of their applications, the citizenship judge gave the following reasons:[TRANSLATION]
After reading and considering these two applications for Canadian citizenship: The reasons offered for the absences from Canada are very detailed with supporting evidence. I have the response to the residence questionnaire, the checks of their passports, tax payments and receipts, lease.
Having spoken separately with each of the two respondents, I find that they definitely have a connection to Canada and therefore grant citizenship, that is I approve citizenship for both applicants.
4 Mr. Woldemariam, a former UN employee (World Food Program), and his wife were both granted landing in Canada on July 18, 1993. On July 28, 1993, ten days after he returned to Canada, Mr. Woldemariam left and was absent until June 11, 1994. He returned to Senegal and Ethiopia to fulfill his contract with the UN and to settle his affairs in the country of his birth. Mrs. Woldemariam joined her husband in Senegal on August 31, 1993 and did not return to Canada until July 17, 1994. The respondents lived in Canada for nine months (from the end of July 1994 to May 18, 1995) except for Mr. Woldemariam's month-long visit to Africa from October 4, 1994 to November 27, 1994. During this period, he began market research into the feasibility of setting up an import-export business.
5 On March 21, 1995, the respondents formed a Canadian company, Gestion Ampas Limitée, which on April 25, 1995 became the exclusive distributor for certain African countries of the products of Alliance Medical Inc., a Canadian manufacturer of very specialized medical equipment, for a period of two years.
6 Just after they launched their business, the respondents left for Africa together on May 18, 1995, and were absent for 316 days. They returned to Canada on March 3, 1996 and remained here for one year before leaving for a third extended absence of more than 100 days to sell the Alliance Medical Inc. medical products.
7 To complete their citizenship applications, the respondents filled out a residence questionnaire in which they indicated that on July 18, 1993, the date of their landing, their three children (two girls and a boy) accompanied them. At the hearing, Mrs. Woldemariam stated that their children had arrived before them; in fact, they came to Canada to study in 1988: their two daughters were registered at Concordia University and their son at Kingsway College in Toronto.
8 In response to the question in the form [TRANSLATION] "please describe the professional, family and social ties you have established in Canada since your entry until your first absence from Canada", Mrs. Woldemariam wrote:It was very easy for me to settle here in Canada because I already had my family, cousins and numerous good friends here. It also was to make new friends. There are days where I use the four languages I speak. I have enjoyable social and family life.
9 In response to this question, Mr. Woldemariam wrote:
Very strong ties and social relations because my three children and cousins as well as many childhood friends were already established in Montreal. Through these old ties I was able to quickly integrate and make new Canadian friends. These connections helped me to establish my own company and business partners.
10 The respondents indicated on the form that their absences were temporary and that throughout their absences they had maintained a furnished apartment in Montréal. They added that they had transferred all of their investments to Canada and that they had returning resident permits.
11 In support of the appeals, the Minister submits that the citizenship judge erred in law in making her decision, and in particular that the citizenship judge failed to consider the residence requirements of paragraph 5(1)(c) of the Citizenship Act (the Act). The Minister adds that the respondents' applications should not have been approved because they did not accumulate the period of residence in Canada required in the Act and their absences cannot be considered part of this period of residence.
12 Paragraph 5(1)(c) of the Act reads as follows:
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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 . . . . |
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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; |
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13 During the reference period, Mr. Woldemariam accumulated only 683 of the 1095 days of residence required; there is a shortfall of 412 days, or more than one year. Mrs. Woldemariam accumulated only 763 days of residence; the shortfall in her case is 332 days, or about one year.
14 The recent case law of this Court with respect to citizenship has established the following principles:
(1)physical presence in Canada is the basic criterion for determining if an applicant meets the requirements of paragraph 5(1)(c) of the Act. Parliament has clearly stated that residence primarily means physical presence.
(2)the purpose or object of the requirement in paragraph 5(1)(c) of the Act is to ensure that a person seeking Canadian citizenship immerses himself of herself in Canadian life in order to truly know the adoptive country: its people, customs, way of life, motivations and current events in the areas of politics, culture, society and economics. A person seeking Canadian citizenship must therefore be in Canada and not somewhere else.
(3)a person who has established a home in Canada does not cease to be a resident when that person leaves the country for a temporary purpose, for example for business reasons. In other words, before an absence can be counted as a period of residence, the person must have established a home in Canada, that is, in the words of Madame Justice Reed in Re Koo, [1993] 1 F.C. 286 at page 293, the applicant has centralized his or her mode of existence in Canada where he or she regularly, normally or customarily lives. This principle applies to two elements, establishing and maintaining residence in Canada. In my view, this principle was clearly established in the leading case, Re Papadogiorgakis, [1978] 2 F.C. 208, and Mr. Justice Nadon's interpretation of this case, among others, in Choi v. M.C.I., T-1638-96, May 29, 1997 and M.C.I. v. Cheung, T-2841-96, June 10, 1998.
15 I have much sympathy for Mr. and Mrs. Woldemariam. They represented themselves in the appeals before me. I am convinced of their sincerity and their desire to contribute to Canadian society by starting a new business which not only benefits Canada but also improves the welfare of countries and people who are obviously in need.
16 My duty and that of the citizenship judge is to apply the Act, the expression of the will of Parliament. In paragraph 5(1)(c) of the Act, Parliament has indicated that Canadian citizenship shall be granted to a permanent resident who, within the four years immediately preceding the date of his or her application, has accumulated at least three years of residence in Canada. The Act states that only the Minister or the Governor in Counsel may exercise discretion with respect to citizenship.
17 In light of the facts in these cases, I have no choice but to find that the citizenship judge erred in law in making her decisions; therefore, under the circumstances, she did not properly apply the Act.
18 In my view, it is clear that the respondents did not establish residence in Canada before they left the first time in July 1993 for an approximately 11-month stay in Africa. It is true that Mr. and Mrs. Woldemariam had a period of nine months of residence in Canada (end of July 1994 to May 18, 1995) before leaving Canada a second time for 316 days. I cannot consider this brief period sufficient to conclude that they established residence in Canada. They were just beginning to integrate into Canadian society and the interruption came too soon.
19 The same is true for the one-year period between their return to Canada on March 3, 1996 and their departure for a third absence of 100 days.
20 For these reasons, the Minister's appeals are allowed and the decisions of the citizenship judge approving Mr. and Mrs. Woldemariam's citizenship applications are quashed.
François Lemieux
J U D G E
OTTAWA, ONTARIO
OCTOBER 14, 1999
Certified true translation
M. Iveson
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-2364-98
T-2366-98
STYLE OF CAUSE: Amsale Woldemariam v. MCI
Pascal Tensae Woldemariam v. MCI
PLACE OF HEARING: Montréal
DATE OF HEARING: September 28, 1999
REASONS FOR ORDER OF MR. JUSTICE LEMIEUX
DATED: October 14, 1999
APPEARANCES:
Josée Paquin FOR THE APPLICANT
Amsale Woldemariam FOR THE RESPONDENT
Representing herself
Pascal Tensae Woldemariam FOR THE RESPONDENT
Representing himself
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE APPLICANT
Deputy Attorney General of Canada
Montréal, Quebec