Date: 20000128
Docket: T-925-99
BETWEEN
DAN VALERIU GHEORGHIU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an appeal from the decision of Jeanine C. Beaubien, a citizenship judge, rendered on March 29, 1999, refusing citizenship to the applicant on the ground that he did not fulfill the residence requirements under paragraph 5(1)(c) of the Citizenship Act.
[2] The hearing was held simultaneously with the hearing in docket T-924-99, the two applicants being husband and wife.
THE FACTS
[3] The applicant was born on May 29, 1947 in Romania. He was working in Africa when Canada granted him permanent residency in July 1994. He then moved with his family to Canada. From July 1994 to February 1995 he sought employment. Bois et Placages Généraux Ltd., a Canadian company with international connections, retained his services in view of his profession and his expertise. The employer sent the applicant temporarily to Africa to conduct a market study. Once this was completed, the employer temporarily transferred the applicant to Abidjan, Ivory Coast.
[4] The applicant maintains a furnished apartment in Montréal. He has bank accounts, a bank card, automobile insurance and health insurance and social insurance cards. His only son, Bogdan, who is now a Canadian citizen, inhabits the family residence. The applicant paid all of the tuition fees for his son, who has just completed his studies at the École des Hautes Études Commerciales. The applicant also pays his tax liabilities. He phones his son several times a week. He talks with his Canadian employer by telephone several times a day, in addition to numerous fax exchanges.
DECISION OF CITIZENSHIP JUDGE
[5] The judge noted that the applicant had satisfied all of the requirements of the Citizenship Act other than the one concerning residency. At the time the application was filed, September 1, 1997, his absences totalled 771 days. The facts assembled led the judge to conclude that the applicant had not established or maintained residency in Canada. Furthermore, the judge found no reason to send a recommendation to the Minister as provided in subsection 15(1) of the Act.
[6] Accordingly, the application for citizenship was refused in accordance with subsection 14(3) of the Act.
APPLICANT"S SUBMISSIONS
[7] The applicant submits that he fulfills the requirements of paragraph 5(1)(c) of the Act. He has established and maintained his residence in Canada in regard to both the factual indices and his intentions. The applicant has consistently applied for and obtained a resident"s visa when returning, indicating clearly that he intended to retain and maintain his residency in Canada. The applicant has no permanent relationship with another country.
[8] The applicant submits that his absences were only temporary and related to his employment for a Canadian company. His work benefits the company and entails economic benefits for Canada. His absences from Canada generate employment for several Canadians both in and outside of Canada.
[9] Moreover, the judge erred in refusing to recommend the exercise of the Minister"s discretionary authority under section 5(4) of the Act.
RESPONDENT"S SUBMISSIONS
[10] The respondent submits that this Court should confine itself to considering the evidence that was before the citizenship judge and should reject any other additional evidence, with the occasional exception in the interests of natural justice or procedural fairness. The respondent objects to the exhibits attached to the affidavits of the applicant and Mr. Julius Spivak, which had not been put before the citizenship judge.
[11] The respondent submits that the citizenship application was premature. The applicant had not established his residence in Canada before leaving for his numerous absences. Consequently, his absences could not be counted as days of residence.
[12] The respondent submits that the citizenship judge analyzed the tests laid down in Koo, [1993] 1 F.C. 286 and Papadogiorgakis, [1978] 2 F.C. 208 and not the test in Pourgashemi (1993), 62 F.T.R. 122.
[13] The applicant stayed only six months in Canada before leaving for a period of five months in Ivory Coast. Accordingly, since he had not actually established his residency before leaving, none of the absences should count for purposes of calculating his residency, the respondent argues.
[14] The fact that the applicant obtained various identity papers, which are given to all permanent residents who request them when they arrive in Canada, is not indicative that the applicant had effectively settled here. Nor is the fact that he rented an apartment. Irrespective of whether or not he had established his actual residency, he had to find shelter when he arrived in Canada and keep a roof over his boy who is still studying in Montréal. He has some relations with his wife and his son, but he arrived in Canada with those relationships and he has created no additional relationship with Canada.
[15] As to the extended family, there is some initial evidence on the record that it is still in Romania, which would explain why the applicant returned to Romania only four weeks after his first five-month absence in Ivory Coast. He claimed he no longer had any relationship with Romania. His trip to Romania is therefore somewhat surprising.
[16] As to the applicant"s presence in Canada, it is of short duration when compared with his stays abroad.
[17] The applicant had to be present in Canada 1,095 days out of 1,460 within the last four years in order to qualify for citizenship. But he has only 359 days out of 1,460. This is clearly insufficient to qualify.
[18] The applicant"s absences are repeated and foreseeable. They are also voluntary. Although it is true that most of them are related to his work with a Canadian company, it remains the case that this situation is not about to change, since there is no indication that the applicant has done anything whatsoever to alter this de facto situation.
[19] The respondent submits that although the applicant has settled his son in Canada, he has not personally demonstrated that he himself has likewise centred his mode of living in Canada.
[20] The respondent argues that the applicant"s intention is irrelevant for residency purposes in citizenship matters. It is common knowledge that residence for purposes of maintaining permanent resident"s status and residence for purposes of the calculation for obtaining citizenship are two completely different concepts. An intention to reside is therefore sufficient for permanent resident"s status. In citizenship, it is effective residence that must be established.
[21] Given the fact that the applicant had not established his effective residence before leaving on his numerous absences, he cannot now claim to qualify for citizenship. The applicant should take the time to establish in Canada the foundations of his residence before going abroad again. This is what Reed and Thurlow JJ. explained in the Koo and Papadogiorgakis decisions, supra.
[22] As to the application of subsection 5(4) of the Act, it must be pointed out that the evidence surrounding the applicant"s participation in Canada"s economy, which he claims is exceptional, was not presented to the citizenship judge. It is impossible, therefore, to set aside the citizenship judge"s decision on the basis of facts that she failed to consider when those facts were never presented to her.
[23] Similarly, a positive recommendation by the judge to the Governor in Council at the bottom of the letter of refusal does not alter the fact that this was nevertheless a negative decision. A recommendation to the Governor in Council is not binding on the latter.
[24] The citizenship judge"s assessment demonstrated that the circumstances referred to in subsection 5(4) of the Act did not exist in the applicant"s case, and in any event there was no such evidence.
ISSUE
Did the citizenship judge err in law and in fact in finding that the applicant failed to satisfy the notion of residence?
ANALYSIS
[25] Since the appeal was brought under the new Rules, it is an application and not an appeal de novo. I must confine myself to reviewing the evidence as presented before the citizenship judge.
[26] After hearing from the parties, I decided to withdraw the affidavit of Mr. Julius Spivak from the Court file, on the ground it is inadmissible.
[27] Paragraph 5(1)(c) 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... |
| 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... |
[28] The Federal Court has adopted contradictory positions in regard to residence as it is addressed in paragraph 5(1)(c) of the Act. Considering that this is the final level of appeal in such matters, the state of the law is far from clear. The Court has formulated three different tests for resolving the notion of residence.
[29] In Re Papadogiorgakis, supra, Associate Chief Justice Thurlow stated:
| 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 arises. It is, as Rand J. appears to me to be saying in the passage 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". |
[30] In Koo, supra, Reed J. stated that the appropriate criterion was the place in which the person "regularly, normally or customarily lives", or has centralized his or her mode of existence. She explained:
| 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. |
| [31] In Re Pourgashemi, supra, Muldoon J. writes: |
| 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. |
[32] Recently, in Lam v. M.C.I., [1999] F.T.R. 177, Lutfy J. explains:
| 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. |
[33] In the case at bar, the citizenship judge stated in her reasons:
| [Translation] |
| The Federal Court decisions require that, to establish residence, an individual must show in intention and in the facts that he has centralized his mode of living in Canada. If residence is established, absences from Canada do not affect it, as long as it is demonstrated that the individual left Canada for a temporary purpose only and has always retained some form of actual and tangible residence here. |
| I have therefore carefully reviewed your case to determine whether you had established residence in Canada before your absences such that they would be considered as a period of residence; and if, during these absences, you had maintained some sufficient links with Canada. I have concluded from the facts put in evidence that you had not established or maintained residence in Canada and accordingly, I consider that you do not fulfill the residency requirement. |
[34] From her reasons, it is clear that the judge relied on Re Papadogiorgakis and Koo, supra. Reviewing the evidence in light of these decisions, I am of the opinion that the evidence presented by the applicant satisfies the tests laid down in those two decisions.
[35] The applicant in this case remained in Canada for six months before being hired by a Canadian company and transferred to Africa. The applicant rented and maintained an apartment and furnished it. He has a provincial driver"s licence, two cars, automobile insurance, several bank accounts, his health insurance card, his social assistance card. His wife and his son came with him to settle in Canada. His son continued his studies in Canada with the applicant paying the tuition fees. His wife did not go to join him until he was hospitalized in 1996. His son is now a Canadian citizen. His absences were related to his employment. He always intended to return to Canada, as is indicated by the resident"s visas he obtained on his returns (see Re Lai , 31 Imm. L.R. (2d) 118 (F.C.), Woo v. M.C.I. (November 23, 1999), T-1952-98 (F.C.T.D.)). He wants to return to Montréal once the projects in Africa are completed. He has some attachments with his only son, whom he calls each week, and with his Canadian employer, with whom he communicates each day in Canada.
[36] In Re Aviles (1994), 89 F.T.R. 76, Rothstein J. states:
| 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. |
[37] We have here an individual who has no other option, after looking for work for six to eight months, than to go and work outside Canada in his area of expertise. He pays his taxes in Canada and helps put several other Canadians to work.
[38] Should he have remained at home in Montréal, receiving social assistance?
[39] The record would indicate that the applicant has centralized his life in Canada but had to leave, sent abroad by his Canadian employer in order to earn his living.
[40] In my opinion, the citizenship judge erred in concluding that the applicant had neither established nor maintained a residence in Canada before undertaking his trips abroad for his work.
[41] In my opinion, the applicant has satisfied the residence requirements, and the appeal shall therefore be allowed.
| Pierre Blais |
| J. |
OTTAWA, ONTARIO
January 28, 2000
Certified true translation
Bernard Olivier
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| FILE NO: T-925-99 |
| STYLE: Dan Valeriu Gheorghiu v. Minister of Citizenship |
and Immigration
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: January 14, 2000 |
REASONS FOR ORDER OF BLAIS J.
DATED: January 28, 2000
APPEARANCES:
Joyce Yedid for the Applicant
Jocelyne Murphy for the Respondent
SOLICITORS OF RECORD:
Joyce Yedid for the Applicant
Montréal, Quebec
Morris Rosenberg for the Respondent
Deputy Attorney General of Canada
Montréal, Quebec