Date: 19990929
Docket: T-1203-98
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
TETRI MAHADEO
Respondent
REASONS FOR ORDER
REED J.:
[1] The Minister appeals a decision of a citizenship judge that granted the respondent citizenship. She is 74 years old and returns to Guyana for approximately five months each winter to visit her grandchildren, and because mobility during those months is easier for her there. The Minister contends that these absences (236 days short of 1095) mean the respondent has not fulfilled the residency requirements in accordance with the test set out in Re: Pourghasemi (1993), 19 Imm. L.R. (2d) 259 (F.C.T.D.).
[2] As is well known, there is conflicting jurisprudence in this Court. Re: Pourghasemi requires physical presence for 1095 days in order for those days to count as residence within Canada. Re: Papdogiorgakis, [1978] 2 F.C. 208 (T.D.) states that a person may be resident in Canada even when physically absent for periods of time. Legislation before the House of Commons (Bill C-63), if enacted in the form reported from Committee, would require physical presence for the 1095 days but would allow a person six years within which to accumulate those days of physical presence.
[3] In any event, I accept Mr. Justice Lutfy"s analysis in Lam v. Canada (Minister of Citizenship and Immigration ) (1996), 36 Imm. LR. (2d) 29. I agree that in this period of transition from hearing de novo to appeals by way of application, and in view of the amending legislation now before the House of Commons, a citizenship judge"s decision should not be overruled because one test rather than the other is applied, providing the judge articulates the test being used and explains why it is met or not met in the instant case.
[4] In the present case, while part of the reasons are set out in what appears to be a typewritten, standard form format, the citizenship judge found that both the respondent and her husband had established a residential base in Toronto, had a centralized mode of living in Canada since April 17, 1992, that their absences were temporary and they had no intention of residing in any other country than Canada. The applicant and her husband applied for citizenship on the same day. They were absent from Canada for the same periods of time. They left together, travelled together and returned together. (The grant of citizenship to her husband while initially appealed was dismissed on status review because of the Minister"s delay.)
[5] In any event, the citizenship judge concluded that the respondent"s absences from Canada were temporary in nature and she had chosen Canada (where she and her husband live with their daughter) as their primary country of residence. I do not accept counsel for the Minister"s argument that there is no evidence to support the citizenship judge"s conclusions. The citizenship judge"s decision would have been based on the written material on the file and the interview with the respondent. I am not prepared to accept an argument that no evidence to support the judge"s decision exists because the written material on the file is sparse. I do not think the argument of "no evidence" is open to the Minister in such circumstances. Neither the Minister, nor the Court, knows what was said to the citizenship judge. In addition, the evidence on file indicates the reasons for the absences.
[6] In the circumstances, the appeal will be dismissed.
"B. Reed"
JUDGE
TORONTO, ONTARIO
September 29, 1999
| FEDERAL COURT OF CANADA |
Names of Counsel and Solicitors of Record
| COURT NO: T-1203-98 |
| STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| - and - |
| TETRI MAHADEO |
| DATE OF HEARING: WEDNESDAY, SEPTEMBER 29, 1999 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: REED J. |
DATED: WEDNESDAY, SEPTEMBER 29, 1999
| APPEARANCES: Ms. Claire LeRiche |
For the Applicant
No One
For the Respondent
SOLICITORS OF RECORD: Morris Rosenberg
Deputy Attorney General of Canada
| For the Applicant |
Tetri Mahadeo
241 Browning Avenue
East York, Ontario
M4K 1X1
For the Respondent
FEDERAL COURT OF CANADA
Date:19990929
Docket: T-1203-98
Between:
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Applicant
- and -
| TETRI MAHADEO |
Respondent
| REASONS FOR ORDER |