Federal Court Decisions

Date: 20020419

Docket: T-805-01

Neutral citation: 2002 FCT 449

BETWEEN:

                                                                 SANWAR ALAM,

                                                                                                                                                      Applicant,

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

                                                                                                                                                  Respondent.

                                                            REASONS FOR ORDER

LAYDEN-STEVENSON J.

[1]                 Anwar Salam, a citizen of Bangladesh, landed in Canada on August 13, 1995. He applied for Canadian citizenship on May 1, 2000 and appeared for his hearing on February 6, 2001. By correspondence dated March 13, 2001, the citizenship judge denied Mr. Salam's application on the basis that he did not "meet the requirement set out in paragraph 5(1)(c) [of the Citizenship Act]: to have accumulated at least three years of residence within the four years immediately preceding the date of [his] application." Mr. Salam appeals that decision pursuant to subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 and section 21 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended.

[2]                 I have determined that the appellant should succeed. However, my reasons for allowing the appeal deal with the error made by the citizenship judge in assessing the application and are not intended and should not be construed as constituting an opinion with respect to the merits of Mr. Salam's application for citizenship.

[3]                 The arguments of the parties can be pared down and briefly stated. For purposes of clarity, I will first deal with the respondent's submission. The respondent summarizes the various approaches to the residency requirements of paragraph 5(1)(c) of the Citizenship Act contained in Re Papadogiorgakis, [1978] 2 F.C. 208 (T.D.), Re Koo, [1993] 1 F.C. 286 (T.D.) and Re Pourghasemi (1993), 62 F.T.R. 122. The respondent states that the citizenship judge, in accordance with the reasoning in Lam v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 177, chose an approach and applied the correct and relevant principles of that approach to the facts of this application. The approach chosen, says the respondent, was that of Re Pourghasemi, supra, often referred to as the physical presence test. Having chosen and correctly applied the physical presence test, as she was entitled to do, the judge's decision should not be disturbed.

[4]                 I do not find that the citizenship judge chose and applied Pourghasemi. The correspondence dated March 13, 2001, at page 2, states:

Based on my understanding of the recent jurisprudence from the Federal Court, interpreting the residency requirement under paragraph 5(1)(c) of the Act, as well [sic] Parliament's intention which can be gleaned from a plain reading of paragraph 5(1)(c), the most significant factor in considering the residency requirement is whether the applicant can be said to have established his or her residence in Canada by having lived in Canada and been physically present here. As Lemieux J. stated in the case of M.C.I. v. Heny Jreige (T-2012-98, 19990924):

"This first step, establishment in Canada, is essential because, unless an applicant can satisfy it, absences from Canada cannot be counted. . . ." [emphasis is that of citizenship judge]

[5]                 The Pourghasemi reasoning does not permit absences to be counted as residency.

[6]                 The appellant's submission is that the citizenship judge did not make a proper inquiry with respect to the issue of establishment of residence. Page 3 of the decision contains the following finding:

You entered Canada, August 13, 1995. After only 34 days in Canada, on September 16, 1995 you returned to Bahrain for a prolonged continuous absence of 302 days. It is difficult to establish a residence in such a short period (34 days). In my opinion you did not establish a centralized mode of living in Canada in the 34 days you remained in Canada before your first absence.    . . . [emphasis is that of the citizenship judge]

[7]                 The appellant does not take issue with the finding that Mr. Alam did not establish residency in Canada at the time of his landing in 1995. The crux of the appellant's argument is that the citizenship judge should have addressed subsequent periods when he was in Canada to determine whether or not he had established residency during any of those periods.

[8]                 The appellant's argument has merit. The decision indicates that the citizenship judge examined that period of time when the appellant landed in Canada to determine whether he had established residency. The appellant landed nearly five years before he submitted his application for citizenship. Had he established residency at that time, the threshold issue would have been satisfied and the citizenship judge could have proceeded to the next stage of the inquiry, i.e. whether the appellant had resided in Canada a sufficient number of days to qualify for citizenship in accordance with the provisions of paragraph 5(1)(c) of the Act. However, since the appellant did not satisfy the threshold at the time of his landing, he was entitled to a decision as to whether or not he had established residency within the four years preceding his application as contemplated by the Act. I am unable to find anything in the Record that indicates that the citizenship judge reviewed any period other than that at the time of landing to determine whether or not the appellant had established residency. In failing to turn her mind to any period within the four years immediately preceding the date of the citizenship application, the citizenship judge erred.

[9]                 Therefore, the appeal is allowed and the application is remitted back for consideration before a different citizenship judge for determination on the merits.

___________________________________

     Judge

Ottawa, Ontario

April 19, 2002