Date: 19980220
Docket: T-1204-97
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
MOHAMMAD ASLAM MINHAS
Appellant
REASONS FOR JUDGMENT
REED, J.:
[1] This is an appeal, by trial de novo, from a decision of a Citizenship Judge that found the appellant had not satisfied the residence requirements of paragraph 5(1)(c) of the Citizenship Act.
[2] The relevant jurisprudence is well known. It allows physical absences, in some circumstances, to be treated as physical presence within the country for the purposes of satisfying paragraph 5(1)(c). The general test in determining whether a situation falls within that category is to ask whether the appellant has centralized his or her mode of living in Canada; that is, whether Canada is the country to which the appellant has the strongest attachment.
[3] The Citizenship Judge found that the appellant had not satisfied that test. She wrote:
| Federal Court precedents require that, to establish residence, an individual must show, in mind and in fact, a centralization of his or her mode of living in Canada. If such residence is established, absences from Canada do not affect this residence, as long as it is demonstrated that the individual left for a temporary purpose only and always maintained in Canada some real and tangible form of residence. I have, therefore, carefully examined your case to determine whether you had established residence in Canada prior to your absences such that those absences could nevertheless be counted as periods of residence. |
| On the question of whether you had established residence in Canada by virtue of a centralized mode of living in Canada, I have concluded that you have not. |
| You arrived in Canada as a landed immigrant on March 31, 1993. Less than one month later, on April 25th, you returned to Kuwait. From that date until your application for Canadian Citizenship on November 27, 1996 you had been absent from Canada for approximately 585 days. You are presently living and working in Kuwait. You left Canada a few days after your application for Canadian Citizenship on December 4, 1996 returning two days ago, on April 28, 1997 for your hearing with me. |
| These facts lead me to conclude that your presence in Canada were only temporary stays. This is insufficient to consider that you centralized your mode of living in Canada, therefore your absences from Canada cannot be counted as a period of residence in Canada. |
[4] The appellant became a landed immigrant in Canada on March 31, 1993. He left shortly thereafter, as indicated in the reasons of the Citizenship Judge. He states that he left to wind up his employment status in Kuwait. When out of the country and in Kuwait, he resides with his brother. He opened a Discount Dollar store in a Dartmouth shopping mall. His wife managed the store when he was not in the country. There is no dispute that his absences from Canada were for business purposes. His training, skills and contacts suited him for work in Kuwait. The Discount Dollar store continued in business for a few years but was eventually wound up when the landlord raised the rent. His wife and four children became Canadian citizens. A fifth child was born in Canada and is therefore also a Canadian citizen.
[5] When the appellant appeared before the Citizenship Judge his wife and five children were living in rented accommodation in Halifax. The school aged children were enrolled in school here. His wife and children are now in Pakistan. The appellant states that they plan to return to Canada when his wife's mother regains her health. The appellant states that his wife is also engaged in selling their family home in Pakistan to allow them to purchase a family home here. The home was not sold earlier, e.g., in 1993 or 1994, because tenants had rented it. The appellant states that under Pakistan law it is very difficult to get tenants out of a house they have rented. The tenants are now out of the house, however, so it can be sold. It is equally true of course, that if the tenants are out of the house, it is available for his wife and children to move into, if they so wish. The appellant continues to hold rental accommodation in Halifax (under a one year lease). He has moved a certain amount of money to Canada, into relatively short term, fixed U.S. dollar accounts. He asserts that he has moved all his savings here and is dealing with real estate agents to find a home he can purchase for his family. He submitted the business cards of three real estate agents as evidence.
[6] Neither his nor his wife's extended family reside in this country. He has not developed an established business here. As noted, his contacts and skills suited him for consulting and business opportunities in Kuwait - this is where he made his livelihood.
[7] I cannot reach a decision different from that reached by the Citizenship Judge. The appellant says that he intends to purchase a home here, that he intends to establish a business here, that his family intends to return here. It is always open to the appellant to reapply for citizenship when there is concrete evidence that he has centralized his mode of existence in this country - an intention to do so is not sufficient to allow physical absences to be treated as physical presence.
[8] As I noted at the hearing, it never ceases to surprise me that individuals who assert that their attachment to Canada is becoming continually stronger, that the length of their absences is becoming shorter, opt to appeal a negative decision by a Citizenship Judge, rather than simply reapply for citizenship, at a later time, when there is no doubt that the residence requirement has been met. In any event, for the reasons given, I must dismiss this appeal.
Judge
OTTAWA, ONTARIO
February 20, 1998