Date: 19990421
Docket: T-773-98
BETWEEN: 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
HAMDI M.H. ABUL HUDA
Appellant
_________________________________
Docket: T-774-98
BETWEEN: 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
HANADI M.H. ABUL HUDA
Appellant
Docket: T-775-98
BETWEEN: 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
NAJWA A.A. ABUL HUDA
Appellant
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] These are three appeals from Citizenship Judge Nicole Caron"s decision for all three of these cases, dated March 28, 1998, in which she determined that the appellants did not meet the requirements of paragraph 5(1)(c ) of the Citizenship Act.
FACTS
[2] The appellants arrived in Canada on January 21, 1993, and were granted immigrant status that day. Their applications for citizenship were filed on March 15, 1996. On March 16, 1998, they appeared before Judge Caron, who refused to grant them citizenship.
[3] Judge Caron"s reasons show that she noted numerous absences, for various periods in 1993 and 1994, that were not mentioned in section 5 of the applications, and concluded that she had serious doubts as to whether the applicants met the three-year residence requirement under the Citizenship Act .
ARGUMENT OF THE APPLICANTS
[4] The applicants explained in their testimony that they had indeed not mentioned all the periods of absence from Canada during the relevant period, but that they had left it to their lawyer at the time to do the paperwork for the applications for citizenship. However, they admitted in their testimony before the Court that they were aware that their signed applications did not reflect actual absences from Canada during the relevant period.
[5] Counsel for the applicants suggests that the established new periods of absence during the relevant period"142 days for HANADI ABUL HUDA, 116 days for HAMDI ABUL HUDA and 122 days for NAJWA ABUL HUDA"were necessary in order for each of the applicants to return to their former residence to retrieve their belongings and for various other legitimate reasons, including holidays.
[6] Counsel also submits that the department"s administrative policy manual allows a 90-day grace period for holidays or business trips; considering that the applicants were in Canada for a period of 3 years and 53 days"from January 21, 1993, to March 15, 1996, when they made their applications for citizenship"and considering the days of absence and the grace period, the applicants complied with the period required by the Act.
[7] Counsel for the applicants also submits that the Court may intervene and grant citizenship in view of all these circumstances, adding that because of administrative delay, the applications for citizenship were brought before the judge only in March 1998, nearly two years later.
ARGUMENT OF THE RESPONDENT
[8] Counsel for the respondent argues that the citizenship judge properly found that the appellants had not accumulated at least three years of residence within the four years immediately preceding their applications for citizenship, and that their applications for citizenship were therefore premature.
ANALYSIS
[9] I have made an exact calculation of the periods of presence in and absence from Canada for all three applicants.
[10] First, this is what paragraph 5(1)(c) of the Act provides:
| 5.(1) The Minister shall grant citizenship to any person who (a) makes application for citizenship; (b) is eighteen years of age or over; (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: |
5.(1) Le ministre attribue la citoyenneté à toute personne qui, à la fois : a) en fait la demande; b) est âgée d'au moins dix-huit ans; c) a été légalement admise au Canada à titre de résident permanent, n'a pas depuis perdu ce titre en application de l'article 24 de la Loi sur l'immigration, et a, dans les quatre ans qui ont précédé la date de sa demande, résidé au Canada pendant au moins trois ans en tout, la durée de sa résidence étant calculée à la manière suivante: |
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[11] For calculation purposes, I summed the period of time from January 21, 1993, to March 15, 1996, the application date, and thus arrived at a total of 1148 days; I then deducted the number of days each of the applicants was absent"142 days for HANADI ABUL HUDA, 116 days for HAMDI ABUL HUDA and 122 days for NAJWA ABUL HUDA"and arrived at 1006 days present in Canada within the meaning of paragraph 5(1)(c ) for HANADI, 1032 days for HAMDI and 1026 days for NAJWA.
[12] In all three cases, the applicants did not accumulate the number of days required by the Act.
[13] With respect to counsel for the applicants" suggestion that I must have regard to an additional 90-day grace period, this is what the Citizenship Policy Manual, July 1996 says:
| CHAPTER 40: DATE TO DETERMINE RESIDENCE |
| Background: A grace period of 90 days of absence within the three years is permitted for vacations or business trips. |
[14] First, this period is not referred to in the Act or Regulations; it is more in the nature of an administrative practice that a citizenship judge might follow at the time of an applicant"s hearing.
[15] It is to be noted that this 90-day grace period apparently applies not to the four-year period but to the three-year period.
[16] However, for the purposes of applying this 90-day period, I precisely calculated the days each of the three applicants was present in or absent from Canada within the three-year period.
[17] Even then, I arrived at absences of 105 days for HANADI, 99 days for HAMDI and 108 days for NAJWA; in all three cases, the applicants exceeded the 90-day grace period.
[18] In light of the oral and documentary evidence before the Court, it is clear that all three applicants have permanently settled in Canada, and this point does not appear to be in dispute.
[19] However, it does appear that their applications for citizenship were made prematurely, and as they themselves have admitted, they were very badly advised to file deficient applications, to say the least, that did not meet the requirements of paragraph 5(1)(c) of the Act.
[20] Although the Court may treat the days of absence from Canada as though they had been spent in Canada, as some decisions have allowed, in my view this exception cannot be applied in this case because the applicants had clearly not accumulated the number of days required by the Act"and knew so"when they filed their applications.
[21] In fact, the applicants" knowledge of one of the two official languages was certainly sufficient when they filled out their applications. They were perfectly able to see that the days of absence indicated on their applications did not match the days of absence appearing on their passports, and it would have been much more appropriate to wait a few months before filing an application than to fill out a deficient application.
[22] The applicants will have every opportunity to file new applications at their convenience, and if, as they claim, all of them meet the requirements of the Act, they will be in a position to be granted citizenship when their next applications are considered.
[23] For all these reasons, the appeal is dismissed in all three cases.
Pierre Blais
Judge
OTTAWA, ONTARIO
April 21, 1999
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-773-98, T-774-98, T-775-98
STYLE OF CAUSE: Citizenship v. Hamdi M.H. Abul Huda
Citizenship v. Hanadi M.H. Abul Huda
Citizenship v. Najwa A.A. Abul Huda
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 7, 1999
REASONS FOR ORDER
AND ORDER OF: The Honourable Mr. Justice Blais
DATED: April 21, 1999
APPEARANCES:
Annie Kenane for the appellants
Josée Paquin for the Minister
SOLICITORS OF RECORD:
Etude Kenane
Montréal, Quebec for the appellants
Morris Rosenberg
Deputy Attorney General
of Canada for the Minister