Date: 20000928
Docket: T-1979-99
Ottawa, Ontario, this 28th day of September, 2000
| PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE |
BETWEEN:
JESSE C. STINE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an appeal by Jesse C. Stine (the "applicant") of the decision of Citizenship Judge William Day dated September 28, 1999, wherein the applicant was denied Canadian citizenship because he did not meet the residency requirements of paragraph 5(1)(c) of the Citizenship Act, 1974-75-76, c. 108 (the "Act"). The appeal is made pursuant to subsection 14(5) of the Act and Section 21 of the Federal Court Act, R.S.C. 1985, c. F-7.
[2] The applicant is a resident of Whistler, British Columbia who became a permanent resident of Canada on January 2, 1995. He initially resided with his father who landed in Windsor, Ontario on December 28, 1994. At the time of his landing, the applicant was 19 years of age, but was a total dependant of his father, due to his status as a full time university student.
[3] The applicant indicated that he established residence in Canada by:
| [ · ] signing an apartment lease |
| [ · ] helping his father organize the apartment |
| [ · ] moving his personal belongings and furniture to the apartment |
| [ · ] assisting in obtaining cable and telephone services for the apartment |
| [ · ] notifying others of his address |
| [ · ] applying for OHIP and SIN numbers |
[1] The applicant was at the time of his landing and throughout the subject application period, totally financially dependant on his father for his every day living expenses and university education expenses.
[2] The applicant left Canada on January 15, 1995 to return to attend Emory University in Atlanta, Georgia where he had already completed 50% of his degree requirements.
[3] The applicant graduated from Emory University in May, 1997 with a Bachelor of Arts degree, majoring in Economics.
[4] Upon his graduation, the applicant returned to Canada to seek employment which he obtained in September, 1997.
[5] The applicant applied for Canadian citizenship on January 16, 1998.
[6] The applicant was enrolled in a program that allowed him to attend a semester in other countries.
[7] During his university years, the applicant returned to Canada for most holidays and summer vacations.
[8] The applicant was a citizen of the United States of America when he landed in Canada.
[9] The applicant paid Canadian income tax, opened a RRSP account and maintained bank accounts.
[10] Other than his university residence, the applicant's only residence is in Canada and he has obtained a returning resident permit when he attended university.
[11] The following is a listing of the applicant's absences from Canada:
| From D/M/Y |
To D/M/Y |
Destination |
Reason |
Number of Days Absent |
| 1/15/95 |
5/10/95 |
U.S. |
Attend university |
115 |
| 6/24/95 |
8/3/95 |
Spain |
Attend University of Salamanca |
40 |
| 8/23/95 |
11/22/95 |
U.S. |
Attend university |
91 |
| 11/26/95 |
12/20/95 |
U.S. |
Attend university |
24 |
| 1/4/96 |
5/13/96 |
U.S., Bahamas, Venezuela, Brazil, S. Africa, Kenya, India, Japan, Philippines, China, Vietnam, Hong Kong |
Attend university (Semester at Sea Program through Emory University and University of Pittsburgh) |
130 |
| 5/16/96 |
10/24/96 |
U.S. |
Attend university and university summer job at Olympics |
161 |
| 10/28/96 |
1/3/97 |
U.S. |
Attend university |
67 |
| 1/11/97 |
3/9/97 |
U.S. |
Attend university |
57 |
| 3/9/97 |
3/16/97 |
Mexico |
Vacation (senior spring break) |
7 |
| 3/16/97 |
5/31/97 |
U.S. |
Attend university |
76 |
| 8/19/97 |
8/20/97 |
U.S. |
Shopping |
1 |
| 10/20/97 |
11/4/97 |
U.S. |
Vacation |
15 |
| TOTAL |
784 |
[12] The Citizenship Judge stated that the applicant was absent from Canada for 782 days in the relevant period immediately preceding the date of his application for citizenship and that he was 767 days short of the 1,095 days of residency imposed by the Act.
[13] The Citizenship Judge interviewed the applicant on September 28, 1999 and subsequently determined that he did not meet the requirements of the Act. The Judge determined that the periods the applicant spent in the United States could not be counted as periods of residence in Canada:
| The period you spent finishing your degree in the USA cannot be counted as period [sic] of residence in Canada. There are two key factors to take into consideration of this decision. First, was your course of study unique and could you have pursued your studies in Canada? Secondly, did you establish your residence and reside in Canada for a significant period prior to your first absence? In both cases the answer is no. There are many universities in Canada that offer the same program of study and after landing you had only spent two weeks in Canada before returning to the USA to continue your studies. |
[14] Issues
| 1. The Citizenship Judge erred in law in refusing this citizenship application on the basis that the applicant did not meet subsection 5(1) as he failed to articulate the legal test he was relying on in determining whether the applicant's period of study in the United States of America should be counted as a period of residence in Canada. |
| 2. Alternatively, if the Court does find that the Citizenship Judge articulated a legal test to determine the issue of residency, the Citizenship Judge failed to explain why it was not met in this case. |
| 3. The Citizenship Judge exceeded his jurisdiction in determining the issue of residency as the legal test premised on whether the course of study was unique and whether he could have pursued his studies in Canada is not supported by the Citizenship Act or by case law. |
| 4. Alternatively, if the Court finds that there is a legal test to support the position of the Citizenship Judge to determine if residency in Canada is to be determined based on the unique nature of study and whether the studies could have been undertaken in Canada, the Citizenship Judge failed to explain why it was not met in this case. |
Applicant's Submissions
[1] The applicant argues that the Citizenship Judge erred in failing to state the legal test he was using to determine whether the applicant qualified for Canadian citizenship. Alternatively, the Citizenship Judge failed to state why any test was not met in this case.
[2] The applicant also argues that the Citizenship Judge exceeded his jurisdiction by considering whether the applicant's course of study could have been pursued in Canada as a factor in the determination of whether the residency requirement was met.
Respondent's Submissions
[3] The respondent submits that since the Citizenship Judge was discussing "intent" as it related to residence, he was clearly using the approach of Koo and Papadogiorgakis and not the strict residence requirement in Pourghasemi. It is also clear that the Judge found that no residence was established prior to the applicant's first departure from Canada.
[4] The respondent argues that on a consideration of all the factors in the case of the applicant (lengthy absences, short stay prior to departure, choice to continue to study in U.S.) the Citizenship Judge properly evaluated the circumstances of the applicant's case against the test for residency and concluded that it was not met.
Analysis and Decision
[5] Issue 1
The Citizenship Judge erred in law in refusing this citizenship application on the basis that the applicant did not meet subsection 5(1) as he failed to articulate the legal test he was relying on in determining whether the applicant's period of study in the United States of America should be counted as a period of residence in Canada.
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. |
| [6] The applicant contends that the Citizenship Judge erred in that he did not state what test he was using when he did not allow the applicant's periods of absence from Canada to count towards the 1,095 days of residency required by paragraph 5(1)(c) of the Act. I have reviewed the decision of the Citizenship Judge and I cannot agree with the applicant's argument. The Citizenship Judge first quotes Justice Muldoon from Re Pourghasemi (1993) 19 IMM.L.R. (2d) 259 (F.C.T.D.) and that case stands for the proposition that an applicant for citizenship must spend the full 1,095 days in Canada in order to meet the residency requirements of paragraph 5(1)(c) of the Act. The Citizenship Judge then made reference to Re Koo (1992) 10 IMM.L.R. (2d) 1 (F.C.T.D.) as a case which contains discussions of factors to consider when deciding whether to count periods of absence from Canada towards the required 1,095 days of residency. The approach in Re Koo, supra, was less strict in that in certain circumstances, it allowed periods of absences to count towards the required 1,095 days. In my opinion, a review of the Citizenship Judge's decision shows that he was applying the more flexible test, that is, he would consider allowing periods of absences from Canada to count as long as the conditions in Re Koo, supra, were met. Therefore, the Citizenship Judge did make an error of law with respect to articulating the test that he applied to determine whether the applicant met the requirements of paragraph 5(1)(c) of the Act. |
| [7] Issue 2 |
| Alternatively, if the Court does find that the Citizenship Judge articulated a legal test to determine the issue of residency, the Citizenship Judge failed to explain why it was not met in this case. |
| The Citizenship Judge stated in his decision: |
| You were granted landed immigrant status on January 2, 1995 and you applied for citizenship 3 years later on January 16, 1998. In the four year period immediately preceding your application date you were physically present in Canada for only 328 days and absent for 782 leaving you short 767 of the required 1095 days. |
| Approximately 2 weeks after landing in Canada you returned to university in the USA. You were born in the USA and your present citizenship is American. Therefore, you had a pre-existing mode of life in the US, and despite having obtained landed immigrant status in Canada, your life continued to be centred in the USA until you graduated in May 1997 with a Bachelor of Arts, majoring in Economics. Less than a year after graduating you applied for Canadian citizenship. |
| The period you spent finishing your degree in the USA cannot be counted as a period of residence in Canada. There are two key factors to take in consideration of this decision. First, was your course of study unique and could you have pursued your studies in Canada? Secondly, did you establish your residence and reside in Canada for a significant period prior to your first absence? In both cases the answer is no. There are many universities in Canada that offer the same program of study and after landing you had only spent two weeks in Canada before returning to the USA to continue your studies. |
| [8] 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 an applicant's application for citizenship. |
| [9] The jurisprudence of this Court has 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. |
| [10] 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. |
| [11] 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. |
| [4] 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. |
| [5] 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. |
| [6] Thus the appeal of the Minister is allowed. |
| [12] It is my opinion that the Citizenship Judge did explain why the test for residency was not met in this case. He clearly stated that the applicant did not reside in Canada long enough, before his absences from Canada, to establish a residence in Canada. |
| [13] I agree with the Citizenship Judge as I am of the opinion that the applicant did not establish a centralized mode of living in Canada in the 14 days that he was in Canada before his first absence, therefore, the periods of absence from Canada cannot be counted toward his residence requirement. As a result, the Citizenship Judge was correct in denying citizenship to the applicant on this basis. |
| [14] As a result of my ruling on Issue 2, it is not necessary that I rule on Issues 3 and 4. |
| [15] I have no doubt that in the future the applicant will become a citizen of Canada. |
| [16] The appeal of the applicant is therefore dismissed. |
| ORDER |
| [17] IT IS ORDERED that the appeal is dismissed. |
| "John A. O'Keefe" |
| J.F.C.C. |
| Ottawa, Ontario |
| September 28, 2000 |