Date: 19990709
Docket: T-1119-98
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
AND:
OLEG KANTEMIROV
Respondent
REASONS FOR JUDGMENT
ROULEAU, J.
[1] The applicant, Minister of Citizenship and Immigration, is appealing a decision approving the respondent"s application for citizenship under subsection 5(1) of the Citizenship Act , R.S.C. 1985, C-29, on the ground that the Citizenship Judge erred in determining that the respondent met the residency requirements set out in paragraph 5(1)(c) of the Act.
[2] The material before the Citizenship Judge establishes that the respondent, a Russian citizen who worked for and travelled with Cirque du Soleil, entered Canada as a visitor on February 24, 1992 and subsequently obtained a work permit. The applicant"s wife and son entered Canada on September 28, 1992. He was landed on March 14, 1995 and applied for citizenship on September 18, 1997.
[3] The respondent had been physically present in Canada for 898.5 days of the required 1095 days of residency in the four years immediately preceding the date of his application.
[4] With his wife, the applicant purchased a condominium in Canada, the mortgagor of which was a Canadian banking institution. He maintained Canadian bank accounts, a valid Ontario drivers" license and health insurance and paid Canadian Income Tax. In addition, he was employed by Cirque de soleil (Canada) and became co-owner of The Wonderful Circus World School (Toronto).
[5] With the exception of a two and a half week vacation period, all of the applicant"s absences from Canada were attributable to his touring with Cirque du Soleil or negotiating tours of Russian circus artists in Canada and obtaining equipment for The Wonderful Circus World School.
[6] Based on this evidence the Citizenship Judge concluded that:
| Despite a residence shortage of 196.5 days, the applicant, through credible declaration of action and intent and the provision of irrefutable documentation, has within the THURLOW FRAMEWORK, given proof of both the establishment and maintenance of a bona fide Canadian centrality of living. In the relevant period between LANDING and FIRST ABSENCE, the customary indicia were put in place: domicile, SIN, Health Insurance, bank account, registration of children in Canadian schools, employment by Canadian Corporation (Cirque de Soleil). |
| Period of absence were attributable to professional performance as employee of Cirque de Soleil (Canada). |
| Throughout all periods of absence, ties for a Canadian pied-a-terre were fully maintained. |
| All outside-Canada resources/holdings were terminated appropriately and at the proper time. |
[7] Consequently, it was determined that the respondent had accumulated at least three years of residence in Canada within the four years immediately preceding the date of his application for citizenship as required in paragraph 5(1)(c) of the Act. All other requirements of the Act having been met, the Citizenship Judge approved the application.
[8] The applicant does not dispute the evidence which was before the Citizenship Judge. He submits, however, that the Citizenship Judge erred in both fact and law in determining that the respondent had met the residency requirements in paragraph 5(1)(c). Essentially, he argues that paragraph 5(1)(c) should be interpreted strictly. Since that paragraph allows for a period of one year"s absence during the four year period prior to the application for citizenship, presence in Canada during the other three years must be substantial. Given the 196.5 days of absences from Canada and the absence of any exceptional circumstances, the respondent is precluded from establishing the required length of residence in Canada.
[9] The respondent did not file any submissions but did attend the hearing of this appeal.
[10] A review of recent jurisprudence establishes that the test most frequently applied in determining whether an individual has complied with the residency requirement in paragraph 5(1)(c) is that enunciated by Reed J. in Re: Koo, [1993] 1 F.C. 286 at 293:
| .....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. |
[11] Reed J. goes on to suggest 6 questions that can be asked which assist in determining whether Canada is the country in which the individual has centralized his or her mode of existence. These questions relate to the pattern and length of residence in Canada, residence of immediate family, extent and reason for any periods of physical absence and the quality of the connection with Canada as compared with any other country.
[12] Here, the evidence before the Citizenship Judge clearly establishes that the respondent had centralized his mode of existence in Canada. His home, family, and bank accounts were located in Canada. His employer and his subsequent business was located in Canada and he had terminated all relevant connections with his former country of residence. The periods of physical absence from Canada were directly related to his employment in Canada and subsequent Canadian business interests. In fact, the very nature of the respondent"s employment with Cirque de Soleil (Canada) necessitated periods of absence from Canada.
[13] The applicant has not established that the Citizenship Judge did not correctly apply the test for residency in concluding that the respondent had fulfilled the requirements specified in paragraph 5(1)(c) of the Citizenship Act.
[14] The appeal is therefore dismissed.
JUDGE
OTTAWA, Ontario
July 9, 1999