Date: 20000725
Docket: T-1786-98
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
AND:
NESAR ULLAH CHOWDHURY
Respondent
REASONS FOR JUDGMENT
ROULEAU, J.
[1] This judicial review application under section 14(5) of the Citizenship Act is brought by the Minister of Citizenship and Immigration from the decision of Citizenship Judge Roy Bonisteel dated July 29, 1998 wherein the Judge granted the respondent"s application for citizenship pursuant to subsection 5(1) of the Act.
[2] The respondent, Nesar Ullah Chowdhury, was born in Bangladesh on October 31, 1947. He acquired landed immigrant status on September 1, 1993 and his application for Canadian citizenship was received August 25, 1997.
[3] The Citizenship Judge determined that the respondent had met the residence test of paragraph 5(1)(c) of the Act, which requires at least three years of residence (1,095 days) in Canada within the four years preceding the date of his application. The Judge also determined that this requirement was met despite the fact that the respondent had been physically present in Canada for 412 days; he was absent for 968 days and thus had a shortage of 683 days.
[4] The respondent, a civil engineer, entered Canada as a landed immigration on September 1, 1993. At the time, he was a citizen of Bangladesh and worked under contract in Brunei. On September 13, 1993, some 12 days later, he returned to Bangladesh in order to complete his contractual obligations and conclude disposition of some business assets and properties in both Brunei and Bangladesh. He did not return to Canada until July 29,1994, accompanied by his family.
[5] He was without employment until hired by SNC-Lavalin International Inc. on June 4, 1995. This corporation hired him as a water treatment specialist and assigned him to a project in Nigeria until March 19, 1996. He returned to Canada upon the termination of this project and in November, 1996 he was assigned by SNC - Lavalin International Inc. as Project Manager in Ghana for a during of one year. There was then an extension to his contract and he was to remain there until August of 1998.
[6] The Citizenship Judge wrote that the applicant was short 638 days with respect to meeting the Canadian residence of 1,095 days required within the four years preceding the filing of an application for citizenship. The Judge went on to say that the applicant had established residence in Scarborough where he rented premises in July of 1994. He purchased a home in late 1997; he centralized his mode of living in Canada and, during his temporary absences, he had no intention of residing elsewhere. The Judge went on to say that he maintained his home in Canada during all his absences and that his work as a civil engineer took him out of the country but his family remained in Canada.
[7] There is not doubt that the Citizenship Judge was prepared to allow citizenship on the basis of the liberal definition of "residence" which has evolved over the years through the jurisprudence of this Court. There is also no doubt that this applicant intended to establish a permanent home in Canada, a pied-à-terre, and that he has centralized his mode of living in Canada.
[8] Counsel for the Minister suggests that residency cannot be established to satisfy paragraph 5(1)(c) of the Act until actual physical presence in Canada has taken place for the required period of 1,095 days.
[9] A careful reading of paragraph 5(1)(c) of the Act reveals that residency can be counted from the date an immigrant is landed:
| 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: |
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: |
[10] In the present case, the respondent landed on September 1, 1993 but did not establish residence until July 29, 1994. From July, 1994 he continuously remained in Canada, without interruption, until he was hired in June, 1995 by SNC-Lavalin International Inc. He returned to Canada in March, 1996 and remained here until November, 1996 when he was once again assigned by the international corporation to a project in Ghana.
[11] I am satisfied the Citizenship Judge properly interpreted by jurisprudence. As Dubé J. of this Court wrote in Re Hung, [1996] F.C.J. No. 1401:
| "The most eloquent indicia of residency is the establishment of a person and his family in the country, coupled with a manifest intention of making the establishment their permanent home. |
[12] The respondent"s only place residence has been Canada since July of 1994. His wife and children have remained in this country. He neither owns nor occupies property outside of Canada except for the purposes of his employment. As it has often been said in much of the jurisprudence of this Court, actual physical presence in Canada throughout the specified period is no longer required to fulfil the residency requirement as set out in the Act.
[13] Applying the jurisprudence the respondent has actually been present in Canada without interruption since July 29, 1994.
[14] The application for judicial review is dismissed.
JUDGE
OTTAWA, Ontario
July 25, 2000