Date: 19990527
Docket: T-1927-98
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Applicant,
- and -
DINAZ HOMI ITALIA,
Respondent.
REASONS FOR ORDER
RICHARD A.C.J.
[1] This is an appeal under s. 14(5) of the Citizenship Act and s. 21 of the Federal Court Act, brought on behalf of the Minister of Citizenship and Immigration, from the decision of Citizenship Judge Marguerite Ford, dated August 20, 1998, wherein the Judge approved the application of the respondent for a grant of Canadian citizenship under s. 5(1) of the Citizenship Act.
[2] By her decision of April 20, 1998, the Citizenship Judge decided that the respondent had met the residency requirement of paragraph 5(1)(c) of the Citizenship Act, despite the fact that the respondent had been physically present in Canada for only 327 days. In accordance with s-ss. 5(1)(c)(i) and (ii) of the Citizenship Act, the respondent had a shortage of 768 days with respect to meeting the minimum requirement of at least three years residence in Canada within the four years immediately preceding the date of her application for Canadian citizenship.
[3] The following evidence was before the Citizenship Judge:
| (a) The respondent acquired permanent residence status in Canada on July 23, 1994. At the time of landing, the respondent was 18 years old and accompanied her father and two sisters to Canada; |
| (b) On August 11, 1997, the respondent completed an adult application for Canadian citizenship which was received by Citizenship Registration in Sydney, Nova Scotia on September 2, 1997; |
| (c) According to the information she provided, the respondent was not physically present in Canada for a minimum of three years of the four years preceding her application for Canadian citizenship. According to the chart provided by the respondent, the respondent was absent from Canada for 778 days in the four years preceding the date of her application for Canadian citizenship; |
| (d) The respondent stated in her Residence Questionnaire that the reason for her absences from Canada was to attend university in the U.S.A. Commencing prior to landing in Canada in 1994, the respondent pursued undergraduate studies at Pennsylvania State University. After completing her degree, she commenced a Masters program at Case Western Reserve University in Cleveland, pursuing studies through to and post-dating August 11, 1997, the date of her citizenship application. |
[4] In support of her application for Canadian citizenship, the respondent completed a residency questionnaire. She also submitted copies of the following various documents: her health card, driver's license, a letter written by the Dean of the College of Health and Human Development at Pennsylvania State University, a 1998 Property Assessment for #73 - 5950 Dakdale Road in Burnaby, BC, her record of landing and passport.
[5] Paragraph 5(1)(c) of the Citizenship Act sets out three criteria that an applicant for Canadian citizenship must satisfy:
| (a) lawful admission to Canada as a permanent resident; |
| (b) retention of permanent residence status; and |
| (c) the accumulation of at least three years of residence in Canada, within the four years immediately preceding the date of the application, as calculated under the prescribed formula set out under the paragraph. |
[6] The word "residence" is not specifically defined under s. 2(1) of the Citizenship Act.
[7] The respondent was only present in Canada for 3 weeks after landing as a permanent resident before she returned to the U.S.A. to continue her undergraduate studies which she had commenced the previous year.
[8] There was no evidence that this course of studies and the Master's program which she later undertook were not available at a Canadian university or that she had made an effort to enrol at a Canadian university.
[9] The respondent returned to Canada to visit her family for Christmas and summer vacations.
[10] The extent of the respondent's absences are substantial.
[11] The respondent has continuously resided in the U.S.A. since the fall of 1993, except for short visits to Canada during summer and Christmas breaks.
[12] The Citizenship Judge erred in law in concluding that the respondent had satisfied the residency requirement.
[13] Paragraph 5(1)(c) of the Citizenship Act applies to all applicants for Canadian citizenship.
[14] The case law establishes that applicants for citizenship must demonstrate by objective facts, first, that they have established a residence of their own in Canada at least three years preceding their application and, second, that they have maintained their established residence throughout that time.
[15] Where an applicant has failed to first establish a Canadian residence prior to any absence from Canada during the four years preceding their application, the requirements of the Citizenship Act have not been met.
[16] A mere intention to establish residence is insufficient; actual residence is required.
[17] The reasons given by the Citizenship Judge for approving the application are:
| She is short 768 days which has been spent pursuing her education in the U.S. She jointly owns the house in Burnaby where her father and two siblings live. She has provided evidence of residence in Canada. |
[18] The respondent has not established an extended physical and substantial presence in Canada before the time period prescribed under the Citizenship Act.
[19] The respondent has not centralized her mode of living in Canada.
[20] Accordingly the appeal is allowed and the decision of the Citizenship Judge is set aside.
(Sgd.) "John D. Richard"
A.C.J.
Vancouver, British Columbia
27 May 1999
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-1927-98
STYLE OF CAUSE: MINISTER OF CITIZENSHIP AND
IMMIGRATION
v.
DINAZ HOMI ITALIA
PLACE OF HEARING: Vancouver, British Columbia
| DATE OF HEARING: May 26, 1999 |
REASONS FOR ORDER OF RICHARD A.C.J.
dated May 27, 1999
APPEARANCES:
| Emilia Péch for the Applicant |
| Gordon Maynard for the Respondent |
SOLICITORS OF RECORD:
| Morris Rosenberg for the Applicant |
Deputy Attorney General
of Canada
| Gordon Maynard for the Respondent |
| Vancouver, British Columbia |