Date: 20000128
Docket: T-924-99
BETWEEN:
IRINA MARIANA GHEORGHIU,
Plaintiff,
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION,
Defendant.
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an appeal from a decision by Jeanine C. Beaubien, a citizenship judge, on March 29, 1999 denying the applicant citizenship on the ground that she did not meet the residence requirements laid down in s. 5(1)(c) of the Citizenship Act.
[2] The hearing was held by consent at the same time as the hearing in case T-925-99, the two plaintiffs being husband and wife.
FACTS
[3] The plaintiff was born in Roumania on September 19, 1951. Canada granted her permanent immigrant status in July 1994. That is the date when she moved to Canada with her family. From July 1994 to February 1995, her husband was seeking employment. Bois et Placages Généraux Ltd., a Canadian company with an international network, hired him on account of his training and expertise. The employer transferred the plaintiff's husband to Africa temporarily. The plaintiff stayed in Canada with her son. In 1996 she left to join her husband when he fell ill and was hospitalized. Since that time she has accompanied her husband on each of his moves abroad for his work.
[4] The plaintiff kept a furnished apartment in Montréal. She had bank accounts, a bank card, two cars, a driving licence, automobile insurance and health and social insurance cards.
[5] Her only son Bogdan, now a Canadian citizen, lives in the family home. She talks to her son on the telephone several times a week.
DECISION OF CITIZENSHIP JUDGE
[6] The judge noted that the plaintiff had met all the conditions of the Citizenship Act except for that regarding residence. At the time her application was filed, on September 1, 1997, her absences totalled 405 days. The facts obtained led the judge to conclude that the plaintiff had not established or maintained a residence in Canada. Further, the judge found no reason to make a recommendation to the Minister as specified in s. 15(1) of the Act.
[7] The citizenship application was accordingly denied pursuant to s. 14(3) of the Act.
PLAINTIFF'S ARGUMENTS
[8] The plaintiff submitted that she met the requirements of s. 5(1)(c) of the Act. She established and maintained her residence in Canada both in mind and fact. She put her family home in Roumania up for sale. She had no permanent connection with another country. When she left Africa, where she lived before immigrating to Canada, she resigned her job and liquidated her property with the intention of never returning. The plaintiff always requested and got a returning resident's visa, clearly indicating that she intended to keep and maintain her residence in Canada.
[9] The plaintiff argued that her absences were due to her husband's work for a Canadian company, employment which benefited the employer and produced economic advantages for Canada.
[10] The judge further erred in refusing to recommend that the Minister exercise his discretionary authority under s. 5(4) of the Act.
DEFENDANT'S ARGUMENTS
[11] The defendant submitted that this Court should simply consider the evidence before the citizenship judge and should reject any other additional evidence, except for considerations of natural justice or procedural fairness.
[12] The defendant submitted that the citizenship application was premature. The plaintiff had not established her residence in Canada before leaving for her many absences. Accordingly, her absences could not be counted as days of residence.
[13] The intention to reside in Canada may suffice for preserving permanent resident status and obtaining various permits to return to Canada. However, that intention does not suffice to show that residence was actually established and maintained in Canada.
[14] The defendant submitted that even if the plaintiff had established residence in Canada before leaving the country to accompany her husband on his moves, which the defendant did not admit, her absences could not be counted for the purposes of s. 5(1.1) of the Act.
[15] A person who accompanies her spouse may count her days of absence from Canada as days of residence only if the spouse is a Canadian citizen and the citizen is working for the Canadian Armed Forces or for the Public Service of Canada or of a province. Accordingly, persons accompanying a spouse who does not meet the conditions of s. 5(1.1) cannot have their absences counted as days of residence.
[16] This being the case, it does not really matter whether the plaintiff established her residence between July 29, 1994 and her first departure on July 27, 1995, since in any case her absences cannot be counted as days of residence in view of s. 5(1.1) of the Act, the application of which cannot be avoided.
[17] The defendant argued that s. 5(1.1) applies regardless of or concurrently with the case law on the concept of residence.
[18] The evidence in the record showed that the plaintiff had not accumulated three years of residence and that the citizenship judge correctly applied one of the "schools of thought" supported by precedent.
[19] The defendant maintained the arguments made in case T-925-99.
POINT AT ISSUE
Did the citizenship judge err in law and in fact in concluding that the plaintiff had not complied with the concept of residence?
ANALYSIS
[20] As the appeal was brought pursuant to the new Rules, it is an application and not an
appeal de novo. The Court should simply examine the evidence, as submitted to the citizenship judge.
[21] After hearing the parties, the Court excluded Mr. Spivak's affidavit from the record of the Court as being inadmissible.
[22] Section 5(1)(c) 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
|
[23] As to s. 5(1.1) of the Act,
| 5(1.1) Est assimilé à un jour de résidence au Canada pour l'application de l'alinéa (1)c) et du paragraphe 11(1) tout jour pendant lequel l'auteur d'une demande de citoyenneté a résidé avec son conjoint alors que celui-ci était citoyen et était, sans avoir été engagé sur place, au service, à l'étranger, des forces armées canadiennes ou de l'administration publique fédérale ou de celle d'une province. |
| 5(1.1) Any day during which an applicant for citizenship resided with the applicant's spouse who at the time was a Canadian citizen and was employed outside of Canada in or with the Canadian armed forces or the public service of Canada or of a province, otherwise than as a locally engaged person, shall be treated as equivalent to one day of residence in Canada for the purposes of paragraph (1)(c) and subsection 11(1). |
[24] Section 5(1.1) does not mention that this is the only cas in which a spouse's residence is calculated. Further, the courts have ruled on this point many times (see Re Aviles (1994), 89 F.T.R. 76, Lam v. M.C.I., (1999), 164 F.T.R. 177). This is clearly an exception for spouses of members of the Armed Forces and public servants. Since that particular exception does not apply in the case at bar, one must look at the general rule. Further, the citizenship judge rejected the application not on the basis of s. 5(1.1), but clearly s. 5(1)(c) of the Act.
[25] The Federal Court has adopted contradictory positions regarding residence, as laid down in s. 5(1)(c) of the Act. As this is the final level of appeal in this matter, the state of the law is far from clear. The Court has developed three different tests dealing with the concept of residence.
[26] In Re Papadogiorgakis, [1978] 2 F.C. 208, Thurlow A.C.J. indicated:
| It seems to me that the words "residence" and "resident" in paragraph 5(1)(b) of the new Citizenship Act are not as strictly limited to actual presence in Canada throughout the period as they were in the former statute but can include, as well, situations in which the person concerned has a place in Canada which is used by him during the period as a place of abode to a sufficient extent to demonstrate the reality of his residing there during the material period even though he is away from it part of the time . . . |
| A person with an established home of his own in which he lives does not cease to be resident there when he leaves it for a temporary purpose whether on business or vacation or even to pursue a course of study. The fact of his family remaining there while he is away may lend support for the conclusion that he has not ceased to reside there. The conclusion may be reached, as well, even though the absence may be more or less lengthy. It is also enhanced if he returns there frequently when the opportunity to do so arrises. It is, as Rand J. appears to me to be saying in the passage which I have read, "chiefly a matter of the degree to which a person in mind and fact settles into or maintains or centralizes his ordinary mode of living with its accessories in social relations, interests and conveniences at or in the place in question". |
[27] In Re Koo, [1993] 1 F.C. 286, Reed J. indicated that the appropriate test was the place where the person "regularly, normally or habitually lives" or has centralized his mode of living. She went on to say:
| Another formulation of the same test is whether Canada is the country in which he or she has centralised [sic] his or her mode of existence. Questions that can be asked which assist in such a determination are: |
| (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) resident; |
| (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 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; |
| (6) what is the quality of the connexion with Canada: is it more substantial than that which exists with any other country. |
[28] In Re Pourghasemi (1993), 62 F.T.R. 122, Muldoon J. wrote:
| It is clear that the purpose of paragraph 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 repair 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. If a citizenship candidate misses that qualifying experience, then Canadian citizenship can be conferred, in effect, on a person who is still a foreigner in experience, social adaptation, and often in thought and outlook. If the criterion be applied to some citizenship candidates, it ought to apply to all. |
. . . . .
| So those who would throw in their lot with Canadians by becoming citizens must first throw in their lot with Canadians by residing among Canadians, in Canada, during three of the preceding four years, in order to Canadianize themselves. It is not something one can do while abroad, for Canadian life and society exist only in Canada and nowhere else. |
[29] Recently, in Lam v. M.C.I., (March 26, 1999) T-1310-98 (F.C.T.D.), Lutfy J. explained:
| Justice and fairness, both for the citizenship applicants and the Minister, require some continuity with respect to the standard of review while the current Act is still in force and despite the end of the de novo trials. The appropriate standard, in these circumstances, is one close to the correctness end of the spectrum. However, where citizenship judges, in clear reasons which demonstrate an understanding of the case law, properly decide that the facts satisfy their view of the statutory test in paragraph 5(1)(c), the reviewing judges ought not to substitute arbitrarily their different opinion of the residency requirement. It is to this extent that some deference is owed to the special knowledge and experience of the citizenship judge during this period of transition. |
[30] In the case at bar the citizenship judge indicated in her reasons:
| [TRANSLATION] |
| The case law of the Federal Court requires that, in order to establish residence, the individual must show both in mind and in fact that he has centralized his mode of living in Canada. If residence is established absences from Canada do not affect it, so long as it is shown that the individual left Canada for a temporary purpose only and always retained some form of real and tangible residence. |
| I have therefore carefully examined your case to determine whether you established residence in Canada before your absences so that the latter could be regarded as a period of residence, and whether during those absences you maintained sufficient links with Canada. The facts obtained have led me to conclude that you did not establish or maintain residence in Canada and I therefore consider that you do not meet the condition as to residence. |
[31] It is clear from her reasons that the judge relied on Re Papadogiorgakis and Koo, supra. In examining the evidence in light of Re Papadogiorgakis and Koo, supra, I consider that the evidence submitted by the plaintiff meets the tests laid down in those two cases.
[32] In the case at bar the plaintiff stayed in Canada until 1996. Her family leased and maintained an apartment and furnished it. She has a provincial driving licence, a car, automobile insurance, several bank accounts and her health insurance and social insurance cards. Her husband and son moved to Canada with her. Her son continued his studies in Canada. It was only when her husband was hospitalized in 1996 that the plaintiff went to join him in Africa. Her son is now a Canadian citizen. She always had the intention of returning to Canada, as demonstrated by the returning resident visas obtained (see Re Lai, 31 Imm. L.R. (2d) 118 (F.C.C.), Woo v. M.C.I. (November 23, 1999), T-1952-98, F.C.T.D.). She has ties to her only son, with whom she is in contact weekly. Her absences were due to her husband's temporary employment.
[33] In Re Aviles, supra, Rothstein J. stated:
| I think it is in Canada's best interest that immigrants such as the Garcias are prepared to assume the risk of going back to less stable parts of the world than Canada in the course of employment with a Canadian employer, as opposed to simply remaining in Canada, either on social assistance or at a relatively low level of employment, simply to qualify for the residency requirement in paragraph 5(1)(c) of the Citizenship Act. It seems to me it would be somewhat perverse to penalize the applicants in this case because of Mr. Garcia's employment requirement with his Canadian employer. |
[34] In my view, the citizenship judge made an error when she arrived at the conclusion that the plaintiff had not established or maintained residence in Canada before undertaking her travel abroad for her husband's work.
[35] In my opinion, the plaintiff met the residence requirements and the appeal should accordingly be allowed.
| Pierre Blais Judge |
OTTAWA, ONTARIO
January 28, 2000
Certified true translation
Bernard Olivier, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| COURT No.: T-924-99 |
| STYLE OF CAUSE: Irina Mariana Gheorghiu v. Minister of Citizenship and Immigration |
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: January 14, 2000 |
| REASONS FOR ORDER AND ORDER BY: Blais J. |
| DATED: January 28, 2000 |
APPEARANCES:
| Joyce Yedid FOR THE PLAINTIFF |
| Jocelyne Murphy FOR THE DEFENDANT |
SOLICITORS OF RECORD:
| Joyce Yedid FOR THE PLAINTIFF |
Montréal, Quebec
| Morris Rosenberg FOR THE DEFENDANT |
Attorney General of Canada
Montréal, Quebec