Date: 19981215
Docket: T-25-98
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
Mohamed Rashad Faris R. Al Massoud
Appellant
REASONS FOR JUDGMENT
ROULEAU, J.
[1] This is an appeal from the decision of a Citizenship Judge who denied this appellant Canadian citizenship on November 14, 1997. The Citizenship Judge found that Mr. Al Massoud did not present sufficient evidence that met the residency requirement under paragraph 5(1)c) of the Citizenship Act, R.S.C. 1985, c. C-29., which requires that an applicant for Canadian citizenship must have accumulated at least three years of residency in Canada within the four years immediately preceding his or her application.
[2] Mr. Al Massoud filed an appeal on January 8, 1998. Appeals to the Federal Court under subsection 14(5) of the Citizenship Act which were filed before the coming into force of the Federal Court Rules, 1998 on April 25, 1998 are trials de novo. The Court is therefore permitted to consider all of the evidence and make its own decision on its strength and the credibility of the witnesses. (Canada (MCI) v. Chan (1998), F.C.J. No. 742, per Rothstein J.)
[3] Mr. Al Massoud was born in Nablus, Jordan on December 8, 1959. He is single and is completing his studies. He and his parents arrived in Canada as landed immigrants on June 14, 1993, to join his sister, who already lived in Canada. Mr. Al Massoud claims he lived at his sister"s house in Brossard from June 1993 to June 1996. In July 1996, he moved with his father to rented lodgings in Montréal. He still lived at the Montréal address as of the date of the filing of his appeal.
[4] Since his arrival, Mr. Al Massoud has been preparing for the evaluating exam of his chosen profession. He has also volunteered as a social worker at the Union islamique des services socio-culturels du Québec. Mr. Al Massoud was absent from Canada for 60 days since his landing. He went to England and Jordan to gather his belongings, and visited friends and relatives in the United States.
[5] Mr. Al Massoud applied for Canadian citizenship on August 20, 1996. At that time, he had been in Canada for 3 years and two months. The Citizenship Judge rejected his application for citizenship. In her opinion, the applicant had no evidence to support his claim that he lived at his sister"s house from June 14, 1993 to June 30, 1996. Mr. Al Massoud never worked in Canada; his father paid his expenses. The Citizenship Judge was satisfied, however, that he lived in Canada with his father since July 1996. He had submitted the lease as evidence.
[6] It was agreed during the hearing that the appellant had in fact been in Canada for the entire period except for a vacation of 60 days prior to his application.
[7] Counsel for the Respondent has argued at the hearing that subsection 5(1)c) of the Act requires that an applicant for Canadian citizenship must have been a permanent resident of Canada for the four years immediately preceding his or her application. He relied for that purpose on the decision of Muldoon J. in Re Ching Chih Chen Ten (January 21, 1998), Ottawa T-2876-96.
[8] I do not agree with the respondent"s submission. In Re Ching Chih Chen Ten , Muldoon J. upheld a strict interpretation of the residency requirement and dismissed the applicants" assertion that they had established a constructive residency. It does not stand for the proposition that an applicant for Canadian citizenship must have resided in Canada for four years before submitting his or her application for citizenship.
[9] Subsection 5(1) reads as follows:
| 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; |
[10] It is clear from the wording of the section that a person applying for citizenship must accumulate 1095 days of residence in Canada to fulfil the residency requirement. The applicant has fulfilled this requirement by residing in Canada for three years. The notion of four years provides that an applicant"s residence need not to have been continuous. An applicant is entitled to be absent from Canada one day out of four. Paragraph 5(1)c) strikes a balance between the recognition that residents of Canada sometimes have to leave the country for one reason or another, and still fulfil the residency requirement.
[11] The applicant demonstrated that has been a client of the Royal Bank in Brossard, Québec since June 1993. He has had a provincial driver"s license since July or August 1996. A letter dated October 27, 1997 signed by Sheikh Abdul-Hamid Sinno, President of the Union islamique des services socio-culturels du Québec in Montréal, certifies that the applicant has been an active member of the Union and has attended Friday prayers since January 1994.
[12] This information, in addition to the applicant"s testimony, constitutes sufficient evidence to support the applicant"s claim that he has lived in Canada since June 1993 and he is not barred from making an application prior to have been a landed immigrant for at least four years. For these reasons, I allow the appeal.
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JUDGE
OTTAWA, Ontario
December 15, 1998