Date: 19981105
Docket: T-91-98
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
MOHAMMAD ESMAEL RAHIMYAR,
Appellant
REASONS FOR JUDGMENT
ROULEAU, J.
[1] This is an appeal from the decision of the Citizenship Judge dated December 12, 1997 denying the appellant Canadian citizenship. It was determined that Mr. Rahimyar did not meet the residency requirement under paragraph 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29, which requires that an applicant for Canadian citizenship must have accumulated at least three years of residency in Canada within the four years immediately proceeding his or her application. The Citizenship Judge found that the appellant had only been physically present in Canada 792 days, leaving him 303 days short of the required 1095 days to meet the residency requirement.
[2] The Citizenship Judge determined that the appellant did not meet the requirements of paragraph 5(1)(c) of the Act. In particular, the Citizenship Judge was not convinced that the appellant maintained sufficient ties with Canada during these absences to count as periods of residence under the Citizenship Act.
[3] Mr. Rahimyar filed an appeal on January 12, 1998. Appeals to the Federal Court under subsection 14(5) of the Citizenship Act which were filed before the coming into force of the Federal Court Rules, 1998 on April 25, 1998 are trials de novo. We are therefore permitted to consider all of the evidence, including witness testimony. (Canada (MCI) v. Chan (1998), F.C.J. No. 742, per Rothstein J.)
[4] The appellant was born in Kabul, Afghanistan on June 18, 1969. He complete his high school education there. He arrived in Canada on December 31, 1990 and claimed refugee status. He was single and unemployed at the time. Within three to four weeks, he moved with his brother in Richmond, B. C. His brother owned a business with a partner, and the appellant worked with them for approximately one year. The appellant then bought his own business, a confectionary store, which he operated for 7 or 8 months. Mr. Rahimyar was admitted for permanent residence on March 14, 1995.
[5] From June 1, 1995 to November 6, 1995, (158 days), Mr. Rahimyar sold his business and visited his family in Singapore and in Peshawar, Pakistan. He then came back to British Columbia until October 7, 1996. He then left again for Pakistan because his parents had arranged a marriage for him. He came back with his wife on March 31, 1997, after having been away for 174 days. The appellant did not work nor sought employment while in Pakistan. He has not left Canada since March 1997. He has since found a day job with a credit card company and an evening job as a caterer. The catering business for which he works supplies meals to various airlines at the airport. As a result, the appellant has made contacts with Royal Airlines. This company has agreed to hire him provided that he obtains Canadian citizenship.
[6] In Re Papadogiorgakis (1978), 2 F.C. 208., Thurlow C.J. established the principle that full-time physical presence in Canada is not an essential residential requirement. A person with an established home of his own in Canada does not cease to be resident when he leaves for temporary purposes, whether on business, or vacation, or to pursue a course of study. In the case of Re Koo (1993), 1 F.C. 286 at 293 (F.C.T.D.), Madame Justice Reed surveyed the jurisprudence concerning residence and summarized the different formulations for determining whether an appellant was resident in Canada, despite a physical absence:
| 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. |
[7] Six questions can be used by the Court as guidance in reaching a conclusion on residency:
| 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; |
| 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, a course of study, or 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? |
[8] The appellant sold his business before leaving for Pakistan for the first time. He did not maintain a house or an apartment while he was away. However, I am convinced that he maintained a pied-à-terre in Canada. The appellant lived in Canada for five years before leaving for Pakistan. The sole purpose of the trip was to visit his family, whom he had not seen for over five years. Again, in October 1996, he left for Pakistan to visit his family and to get married. These visits left him short 303 days of the required 1095 days of presence in Canada.
[9] While he was away, the appellant kept a bank account in Canada. He also paid income taxes and kept his provincial driver"s license. He stored property for the length of his absence. Since his return, he has been working full-time at two jobs. His wife and two brothers also reside in Canada.
[10] I am satisfied that there is sufficient evidence that residence has been maintained, and not merely intended to be resumed. For these reasons, I allow the appeal.
__________________________________
JUDGE
OTTAWA, Ontario
November 5, 1998