Date: 20000526
Docket: T-452-99
Ottawa, Ontario, this 26th day of May, 2000
| PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O"KEEFE |
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
ABDI DIRIR ABDI
Respondent
REASONS FOR ORDER AND ORDER
O"KEEFE J.
[1] This is an appeal by the Minister of Citizenship and Immigration ("Minister") brought pursuant to Rule 300(c) of the Federal Court Rules, 1998 , of the decision of Citizenship Judge Somerville, dated January 13, 1999 wherein he approved Abdi Dirir Abdi"s ("respondent") application for citizenship. The Minister claims that the respondent has not met the residency requirements of paragraph 5(1)(c) of the Citizenship Act , 1974-75-76, c. 108 ("Act").
[2] The respondent and his family (his wife and two children) first came to Canada on August 7, 1987 and were subsequently found to be Convention refugees. Before the respondent could become a permanent resident, he departed Canada for Somalia, the country in which he had claimed a well-founded fear of prosecution. He returned to try to locate his nephews. Through a sponsorship by his wife (who had since become a Canadian citizen) under the family class, the respondent became a permanent resident of Canada on July 30, 1992.
[3] The respondent applied for Canadian citizenship on August 3, 1995, 1,098 days subsequent to landing.
[4] According to the information on the respondent"s application form, he had been absent from Canada for 276 days on the following dates in the interim:
| Period |
Where |
Purpose |
Number of Days Absent |
| August 30, 1992 - January 2, 1993 |
Saudi Arabia |
Work |
135 |
| February 28, 1993 - July 19, 1993 |
Saudi Arabia |
Work |
141 |
| Total |
276 |
By these figures, he was short of the required 1,095 days by 273 days.
| [5] In the respondent"s residence questionnaire, the absences from Canada were |
different from those shown in his application.
| [6] In January, 1999, the respondent provided the following information on his |
absences from Canada:
| Date |
Where |
Reason |
| 1990 - 1992 |
Death of Relative |
|
| December 31, 1992 - June 30, 1993 |
Saudi Arabia |
Temporary Work |
| March 27, 1994 - July 13, 1994 October 16, 1994 - October 26, 1994 June 20, 1995 - July 4, 1995 June 10, 1996 - June 25, 1996 |
Saudi Arabia |
Interviews and Job Hunting |
| December 22, 1996 - July 8, 1997 June 20, 1998 - July 8, 1998 |
Saudi Arabia |
Temporary Work Went to Saudi Arabia to Assist Brother with Contracting Business |
| [7] The respondent also stated that he was absent from Canada between May and July |
of 1995 when he was in Saudi Arabia.
| [8] The respondent"s wife and two children have remained in Canada since their |
arrival and became Canadian citizens in 1994.
| [9] The respondent was temporarily separated from his wife from May, 1994 to |
December 31, 1998, but they reconciled and resumed living together in January, 1999.
| [10] The respondent had worked in Canada prior to his departure to Somalia. |
| [11] The respondent supported his wife and family in Canada. |
| [12] The respondent had an active bank account in Canada since 1984, has been a |
customer of Bell Canada since October, 1987 and has been involved with the Somali community since his first arrival in Canada.
Issue
| [13] Did the respondent satisfy the requirements of paragraph 5(1)(c) of the Act that |
within the four years immediately preceding the date of this application for citizenship that he had accumulated at least three years of residence in Canada?
Law
| [14] Paragraph 5(1)(c) of the Act states: |
| 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; |
| 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; |
| Analysis and Decision |
| [15] The only issue before the Court in this appeal is whether or not the respondent has |
| met the residency requirements of paragraph 5(1)(c) of the Act. |
| [16] This appeal is being heard under the new Rules thus, this is not a hearing de novo. |
| I must review the material that was before the Citizenship Judge. |
| [17] Paragraph 5(1)(c) of the Act requires that an applicant for citizenship must |
| accumulate three years of residence in Canada in the four years immediately preceding the date of his or her application for citizenship. |
| [18] The jurisprudence of this Court has stated that an applicant need not actually be |
| physically present in Canada for the full three years or 1,095 days as in certain circumstances an applicant"s time spent out of Canada in this period may qualify as time for the purpose of accumulating residence (see Re Papadogiorgakis [1978] 2 F.C. 208 (F.C.T.D.) and Koo Re [1993] 1 F.C. 286 (F.C.T.D.). |
| [19] In Koo Ree, ibid, Madame Justice Reed spoke about absences in the following |
| terms at page 294: |
| . . .is the physical absence caused by a clearly temporary situation such as employment as a missionary abroad, following a course of study abroad as a student, accepting temporary employment abroad, accompanying a spouse who has accepted temporary employment abroad? |
| [20] A review of the record shows that the respondent worked or was seeking work on |
| a regular basis in Saudi Arabia. He also stated that if he became a Canadian citizen, he probably would not find work in Canada. There is no evidence that the respondent even sought out work in Canada in the relevant time periods. |
| [21] The record has no evidence in it in relation to the respondent"s activities in |
| Canada in the relevant time period, other than he has a bank account, a telephone account and that he has been involved with the Somali community since he arrived. |
| [22] The Citizenship Judge"s decision does not assist the respondent, as it only states: |
| Data in the file shows that the applicant is 273 days short of the required 1095. However, a review of his passport information done by Citizenship officer indicates discrepancies. I have requested him to provide a detailed summarization of his travel in & out of Canada, banking statements & a letter from his wife indicating that he provides financial support for his family. He promises to provide this information within 3 days. His home is not with his wife & children but rather with a relative. He says he has never collected welfare & gets his money by working with his brother in Saudi Arabia. Jan. 11/99 |
| R. Somerville |
| Jan 13 |
| Received additional documents indicating that applicant providing support for wife & children from payments from job in Saudi Arabia. Bank records are current. Letter from wife indicating support since Landing. |
| Approved." |
| [23] There is evidence in the record that the total length of the absences was greater |
| than 273 days as stated by the Citizenship Judge. |
| [24] One of the purposes of paragraph 5(1)(c) was clearly and vividly stated by |
| Muldoon J. in Re Pourghasemi (1999) 19 Imm. L.R. (2d) 259 (F.C.T.D.) at page 260: |
| It is clear that the purpose of para. 5(1)(c) is to insure that everyone who is granted precious Canadian citizenship has become, or at least has been compulsorily presented with the everyday opportunity to become, "Canadianized" This happens by "rubbing elbows" with Canadians in shopping malls, corner stores, libraries, concert halls, auto repai shops, pubs, cabarets, elevators, churches, synagogues, mosques and temples - in a word wherever one can meet and converse with Canadians - during the prescribed three years. One can observe Canadian society for all its virtues, decadence, values, dangers and freedoms, just as it is. That is little enough time in which to become Canadianized. |
| [25] There is nothing in the record or the Citizenship Judge"s decision that would |
| indicate that the respondent did any of these types of things with the exception of his work in Canada and his involvement with the Somali community in Canada. In light of the available evidence, I am of the view that the respondent has not centralized his mode of existence in Canada. For all of the above reasons, I am of the opinion that the respondent does not meet the residency requirement of paragraph 5(1)(c) of the Act, as I am not prepared to count the absences away from Canada as periods of time to accumulate the residency requirements of paragraph 5(1)(c) of the Act. |
| [26] The appeal of the Minister is therefore allowed. |
| ORDER |
| [27] IT IS ORDERED that the appeal (application) of the Minister is allowed. |
| "John A. O"Keefe |
| J.F.C.C. |
| Ottawa, Ontario |
| May 26, 2000 |