Date: 19990428
Docket: T-757-98
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 -
TARA GUPTA
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 the Citizenship Judge dated February 20, 1998, in which the Respondent, Mrs. Tara Gupta, was given approval for a grant of Canadian citizenship.
THE ISSUE
[2] The issue is whether the Citizenship Judge correctly applied the residency requirements of section 5(1)(c) of theAct to the facts of this case. Section 5(1)(c) 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; ... |
THE PROCESS
[3] Counsel for the Respondent indicated at the outset that the Respondent would not be appearing and that the appeal would proceed on the written record. Counsel for the Minister had completed her submissions, and counsel for the Respondent was well into her argument when she recognized that the record lacked information which might have assisted the Respondent's case. At that point, counsel for the Respondent advised the Court for the first time that the Respondent was outside the courtroom and that she could testify. However, I declined to hear the Respondent because her evidence was offered much too late in the proceeding.
[4] Although the proceeding was a trial de novo, counsel for the Respondent asked me to apply the decision of my colleague Teitelbaum J. in Re Kerho (1988), 21 F.T.R. 180 (T.D.), wherein he observed:
| I would temper the above statement by stating that although the appeal is effectively a trial de novo, it is incumbent upon the appellant to show that the Citizenship Judge exercised her discretion on a wrong principle, or on a complete misapprehension of the facts or for some other compelling reason requiring my interference in her decision. |
[5] Counsel submitted that Mr. Justice Teitelbaum was applying judicial review principles to a trial de novo and that I should follow his lead. However, I do not so read the quoted passage. His Lordship leaves open a category of successful appeal based on other compelling reasons which, in my view, would include a completely different impression of the adequacy or veracity of the evidence. Indeed, on a trial de novo the evidence may be different from the evidence before a Citizenship Judge.
THE FACTS
[6] The Respondent is a widow who arrived in Canada and became a permanent resident on April 19, 1994. Precisely three years later, on April 19, 1997, she applied for Canadian citizenship.
[7] Following her arrival, the Respondent stayed with her cousin for approximately one month until May 5, 1994. Thereafter, she lived with her daughter and son-in- law for a second month, from May 6 until June 11, 1994, when she left Canada for a holiday abroad. The Respondent's daughter sponsored her in Canada, and the evidence disclosed that her daughter's husband accepted financial responsibility for his mother-in-law. There is no evidence that the Respondent moved her personal effects to Canada or that she used them in Canada. However, the evidence disclosed that the Respondent had a private bedroom at her daughter's house.
[8] The Respondent also had strong ties with family members in India, in the United Arab Emirates, and in Amsterdam. She travelled outside Canada twice each year to stay with family members in these locations.
[9] The Respondent's travels meant that she was physically out of Canada for 393 days during the 1095 days she was required to reside in Canada according to section 5(1)(c) of the Act. She was out of Canada:
- from June 11, 1994 to September 12, 1994, for 93 days;
- from December 6, 1994 to January 2, 1995, for 27 days;
- from June 29, 1995 to September 2, 1995, for 65 days;
- from February 23, 1996 to March 27, 1996, for 33 days;
- from June 28, 1996 to August 26, 1996, for 59 days; and
- from December 4, 1996 to April 1, 1997, for 116 days.
[10] On February 4, 1997 (during the Respondent's last trip abroad), her residence in Canada was moved to the home of a third relative. The Respondent stayed there until she made her citizenship application on April 19, 1997.
[11] Although in her mid-sixties, the Respondent was clearly mobile and healthy in the three-year period between her landing and her citizenship application. However, we have no information in the record about how she spent her time in Canada. For example, we do not know whether she participated in any social or religious groups or activities. There is no evidence that she made any effort to join Canadian society.
[12] She did undertake the paper steps which are indicative of residency. She obtained a library card, a social insurance card, a grocery card and bank cards. She also applied for health coverage. As of October 1994, after her first trip abroad, she became a patient of a Canadian doctor. In 1997, she submitted tax returns covering the years since her arrival in Canada. The Minister submits that I should disregard these tax returns as they contain no relevant information and because they were not prepared annually as would be expected of a resident. I accept this submission.
ANALYSIS AND CONCLUSIONS
[13] I should observe that establishing residence is not only a matter of assembling the usual paperwork associated with residence (health card, social insurance card, bank card, tax returns, library card, driver's license, etc.). In my view, some effort to integrate into Canadian society is also necessary. This could occur in a workplace, in a volunteer group, or in a social or religious activity, to name just a few possibilities.
[14] The question is whether the Respondent established a centralized mode of living in Canada. In my view, there is insufficient evidence in the record to support the affirmative conclusion reached by the Citizenship Judge.
[15] The Citizenship Judge relied on the case of Papadogiorgakis, [1978] 2 F.C. 208 (T.D.). However, in my view, it must be confined to its rather unusual facts. In that case, a student who had almost no physical presence in Canada during the relevant four-year assessment period had lived here for four prior years and had established a centralized mode of living in Canada prior to departing for study abroad. Further, during his absence he maintained a Canadian residence, returned regularly, and took most of his holidays in Canada.
[16] The Papadogiorgakis decision indicates that the Court may treat a student as a resident, despite substantial physical absence, if that student established and maintained residence in Canada by centralizing his or her mode of living in Canada, and was abroad only for temporary studies and returned frequently.
[17] However, Papadogiorgakis is not authority for the proposition that a non-student can come to Canada, offer no evidence about meaningful participation in Canadian society, live with three sets of relatives in different locations, take long trips outside Canada on a regular basis, and then expect to meet the residence requirement for Canadian citizenship.
[18] I should also note that the Respondent did not establish a firm pattern of residence prior to her first departure which might justify the conclusion that she maintained a constructive residence during her first trip abroad. She was here for less than two months before she left, and although she obtained her social insurance and library cards, and applied for a health card, she lived in two different homes for a month each, and these were not even in the same community.
[19] In my view, the Respondent displayed the attributes of a regular long-term visitor but not those of a resident. There is no evidence that she established any community connections as she moved between her relatives' residences in Brampton, Thornhill, and Markham, Ontario. There is absolutely no evidence about how she spent her days while in Canada.
[20] In these circumstances, and given that she was out of Canada for more than one year during the three-year residency requirement of 1095 days, I am not prepared to conclude that the Respondent has ever actually centralized her mode of living in Canada. The scant available evidence leads me to conclude that while in Canada she functioned as a visitor who focused on her family connections.
[21] This is not a criticism. It is clear that family members are very important to the Respondent and that she places a high value on staying in touch in a meaningful way. However, her travel abroad combined with a lack of evidence about her activities here have caused her application for citizenship to be premature. For all these reasons, 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 -
TARA GUPTA
Respondent
COURT NO.: T-757-98
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 24, 1999
REASONS FOR JUDGMENT: SIMPSON, J.
DATED: April 28, 1999
APPEARANCES:
Ms. A. Leena Jaakkimainen for Appellant
Ms. Shoshana Green for Respondent
Mr. Peter K. Large for amicus curiae
SOLICITORS OF RECORD:
Mr. Morris Rosenberg for Appellant
Deputy Attorney General of Canada
Green and Spiegel for Respondent
Toronto, Ontario
Peter K. Large for amicus curiae
Toronto, Ontario