Date: 19981106
Docket: T-2476-97
OTTAWA, ONTARIO, THE 6TH DAY OF NOVEMBER 1998
| Present: THE HONOURABLE MR. JUSTICE MARC NADON |
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
Mohammed Alireda Afandi,
Appellant.
JUDGMENT
The appeal is dismissed.
| MARC NADON |
| J. |
Certified true translation
Bernard Olivier
Date: 19981106
Docket: T-2476-97
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
Mohammed Alireda Afandi,
Appellant.
REASONS FOR JUDGMENT
NADON J.:
[1] This is an appeal from a decision rendered on October 10, 1997 by Nicole Caron, a Citizenship judge. She dismissed the appellant"s application for citizenship on the ground that he failed to meet the residency requirements under paragraph 5(1)(c) of the Citizenship Act , R.S.C. 1985, c. C-29 (the "Act").
[2] The appellant became a permanent resident of Canada on July 24, 1993. He filed his application for citizenship on August 5, 1996. As of that date, he had been absent from Canada 541 days since July 24, 1993. Because of the number of days of absence, Judge Caron concluded that the appellant failed to meet the residency requirement set out in paragraph 5(1)(c) of the Act, which provides:
| 5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois: |
5. (1) The Minister shall grant citizenship to any person who |
| ... |
... |
| 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: |
(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) un demi-jour pour chaque jour de résidence au Canada avant son admission à titre de résident permanent, |
(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) un jour pour chaque jour de résidence au Canada après son admission à titre de résident permanent; |
(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; |
[3] Paragraph 5(1)(c) expressly provides that an applicant for citizenship must have resided in Canada for at least three years within the four years immediately preceding the date of his application for citizenship. There is no possible doubt as to the appellant"s failure to meet this requirement since he was absent 541 days between July 1993 and August 1996.
[4] The issue raised in this appeal is not a new one. Recently, my colleague Muldoon J., in Ching Chih Chen Ten, T-2876-96 (January 21, 1998, Toronto) (F.C.C.), after an exhaustive review of this issue, concluded, correctly in my opinion, that paragraph 5(1)(c) of the Act was unambiguous in that it clearly provided that an applicant for citizenship should physically reside in Canada for three years during the four years preceding the date of the application for citizenship. Accordingly, Muldoon J. held, an alien could not obtain Canadian citizenship without physically residing in Canada. Canadian citizenship, he said, could not be acquired abroad.
[5] Muldoon J."s remarks are consistent with those of Walsh J. in Khoury , [1978] 2 F.C. 75, in which, at pages 77 and 78, he stated:
The Act does not define residence nor domicile. It was pointed out by the amicus curiae that under the former Act there is a definition of "place of domicile" in section 2 as follows:
| "place of domicile" means the place in which a person has his home or in which he resides or to which he returns as his place of permanent abode and does not mean a place in which he stays for a mere special or temporary purpose; |
and that perhaps this could be applied in the present case in the absence of any definition in the present Act and that appellant could be considered as having resided in Canada throughout the four-year period despite his absences while working for CIDA as his salary and income tax were paid in Canada and he was absent only on working assignments with intention of returning to his residence here. This might very well be the case if the question was one of determining his domicile; it might very well be concluded that although he is not yet a Canadian citizen he has acquired a Canadian domicile and intends to make Canada his permanent abode. However unfortunately it is not the concept of domicile which we are called upon to determine but the meaning of the words "residence in Canada" as used in section 5(1)(b)(ii) of the new Act under which this application was and had to be made. With regret I can find no justification for interpreting "residence" as "domicile", and although appellant did perhaps consider himself as a permanent resident of Canada following his admission, certainly he cannot be held to have been a resident within the meaning of this section during the periods when he was in actual fact residing abroad as a result of his business assignments. Even under the provisions of the old Act I was forced to reach the same conclusion in In re Canadian Citizenship Act and in re
Laprade. In that case I had occasion to refer to he decision of Pratte J. in the case of Blaha v. Minister of Citizenship & Immigration which was subsequently followed by Collier J. in In re Goldston. In the Blaha case Pratte J. stated at pages 524-525:
| As the Act does not define the words "reside" and "residence", we must arrive at their meaning by reference to the ordinary connotation, with the single obvious qualification that they cannot be given a meaning which is identical to that given by Parliament to the expression "place of domicile".... |
| In my opinion a person is resident in Canada within the meaning of the Canadian Citizenship Act only if he is physically present (at least usually) on Canadian territory. I feel that this interpretation is in keeping with the spirit of the Act, which seems to require of the foreigner wishing to acquire Canadian citizenship, not only that he possess certain civic and moral qualifications, and intends to reside in Canada on a permanent basis, but also that he has actually lived in Canada for an appreciable time. Parliament wishes by this means to ensure that Canadian citizenship is granted only to persons who have shown they are capable of becoming a part of our society. |
[6] Since I am in complete agreement with the remarks of my colleagues Muldoon and Walsh JJ., I conclude that Caron J. committed no error when she denied the appellant"s application for citizenship. For these reasons, the appeal will be dismissed.
MARC NADON
J.
Ottawa, Ontario
November 6, 1998
Certified true translation
Bernard Olivier
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| FILE NO. T-2476-97 |
| STYLE: Citizenship v. Mohammed Alireda Afandi |
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: October 20, 1998 |
REASONS FOR JUDGMENT OF NADON J.
| DATED: November 6, 1998 |
APPEARANCES:
| Jean-Claude Chebli for the appellant |
Montréal, Quebec
| Jean Caumartin for Amicus Curiae |
Montréal, Quebec
SOLICITORS OF RECORD:
| Jean-Claude Chebli for the appellant |
Montréal, Quebec
| Jean Caumartin for Amicus Curiae |
Montréal, Quebec