Federal Court Decisions

     T-1697-96

     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

     EMILIE ERNESTINE EBBA HOOFT

     Appellant.

     REASONS FOR JUDGMENT

NADON J.:

     The appellant appeals from a decision of a Citizenship Judge denying her application for a grant of Canadian citizenship on the ground that she had not complied with paragraph 5(1)(c) of the Citizenship Act which provides that:

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:

(i) for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and

(ii) for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence;

     The appellant, born in Holland on August 7, 1969, arrived in Canada on August 7, 1981 with her parents, her two brothers and sister.

     The relevant facts were accurately summarized by the Citizenship Judge at page 2 of his decision where he writes:

You arrived in Canada in 1981 with your parents and siblings and lived at your parents [sic] home in North York. You attended elementary, secondary and university schools in Toronto until 1990. In September of 1990, you went to Greece to study until June 1991. In June 1991, you entered a Ph.D. program in United States [sic] and are still in that program today. Your application shows that you have acquired many indicies [sic] of citizenship, such as a driver"s licence, bank accounts, filed income tax and own a residential property in Guelph. You applied for Canadian citizenship in April of 1995 [sic ]The significant time regarding your residence back four years to April of 1991. By your admission during this period you have returned to Canada three or four times a year to visit your family for a few days each time. As there is no proof of your arrival and departures to and from Canada I question the 155 days credited to you by the Citizenship Officer. Your parents became Canadian citizens in 1996.

     The Citizenship Judge found that the appellant, in the four years preceding her application for citizenship, had only spent about 155 days in Canada out of a total of 1,015. The Citizenship Judge then found that the nine years spent in Canada by the appellant, prior to her departure, were nullified by her not having spent any significant time in Canada since her citizenship application in April 1995. Finally, concerning the appellant"s arguments that her absence from Canada was the result of her studies abroad, the Citizenship Judge referred to the decision of Muldoon J. in Re: Pourghasemi (File T-80-92), where Muldoon J. states:

One may ask: So what if the would-be citizens be away at school or university? What is the urgency? If the candidate cannot find an adequate school or university in Canada, let him or her study abroad and then come back to Canada in order to comply with the residence requirement.

As a result, the Citizenship Judge refused to allow the appellant"s application for citizenship.

     The appellant arrived in Canada at the age of 11. As the Citizenship Judge states in his decision, the appellant attended primary, secondary and university schools in Toronto. In the fall of 1990, the appellant left for Greece and studied there for one year. She then entered a Ph.D. program at the Massachussets Institute of Technology (M.I.T.) and the Woods Hole Oceanographic Institute in Falmouth, Maryland. At the time of her hearing before the Citizenship Judge, the appellant indicated that she expected to finish her thesis by the summer of 1997. When she testified before me, the appellant explained that she hoped to find a job in Canada at the Bedford Institute in Halifax or at the Pacific Centre on Vancouver Island. She also testified that there was also the possibility of a job at the University of Toronto as a post-doctoral fellow to teach a course in geophysics. The appellant made it very clear to me during her testimony that her intention was to return to Canada.

     It is not possible to decide an appeal where the appellant has been denied citizenship on the ground of "residence" without having regard to the decision of Thurlow A.C.J. (as he then was) in Re: Papadogiorgakis ¸ [1978] 2 F.C. 208. At 213 and 214 Thurlow A.C.J. explains the concept of "residence" under the Citizenship Act as follows:

[...] 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. This may not differ much from what is embraced by the exception referred to by the words "(at least usually)" in the reasons of Pratte J. but in a close case it may be enough to make the difference between success and failure for an applicant.

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".

     In Re: Koo, [1993] 1 F.C. 286, Reed J., at 293 and 294, after quoting with approval the above passage from Re: Papadogiorgakis, elaborated further on the concept of residency stating that:

The conclusion I draw from the jurisprudence is that the test is whether it can be said that Canada is the place where the applicant "regularly, normally or customarily lives". Another formulation of the same test is whether Canada is the country in which he or she has centralized 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 connection with Canada: is it more substantial than that which exists with any other country?

         Obviously, Reed J."s questions are necessarily intended to be a guideline and, in my view, are not determinative. They offer, however, a very sound approach to the difficulty of determining whether, in a given case, an appellant "resides" in Canada.

     On the basis of the test enunciated by Thurlow J. in Re: Papadogiorgakis, I am satisfied that when the appellant left Canada for Greece in September 1990, she had already established her home in Canada. In my view, the fact that the appellant has been studying abroad since 1990 does not deprive her of her "residence" in Canada. In my view, the appellant left Canada "for a temporary purpose" to pursue her studies.

     For these reasons, this appeal shall be allowed.

     "MARC NADON"

     Judge

Ottawa, Ontario

June 11, 1997

     T-1697-96

OTTAWA, ONTARIO, THIS 11TH DAY OF JUNE 1997

PRESENT:      THE HONOURABLE MR. JUSTICE NADON

     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

     EMILIE ERNESTINE EBBA HOOFT

     Appellant.

     JUDGMENT

         The appeal is allowed.

     "MARC NADON"

     Judge