Federal Court Decisions

     T-1702-96

     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

     Mohammed Abdul Al-Fraih

     Appellant

     REASONS FOR JUDGMENT

ROULEAU J.

     This is an appeal from the decision of a Citizenship judge. Citizenship was denied this appellant as well as that of his wife. The appeals of this gentleman as well as that of his wife were heard jointly on June 10, 1996.

     It has been determined that Mr. Al-Fraih did not meet the residency requirement under paragraph 5(1)(c) of the Act 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. The Citizenship judge found that the appellant had only been physically present in Canada 15 days of the 1,332 days since his landing, leaving him 1,080 days short of the required 1,095 days. It must be noted that the Citizenship judge also found that the appellant did not meet the requirements of paragraph 5(1)(e) with respect to knowledge but these conditions were waived pursuant to subsection 5(3) in light of Mr. Al-Fraih's age.

     It was ruled that the appellant had not established and maintained residence in Canada, and consequently his absences could not be counted as periods of residence. In making her decision, the Citizenship judge considered the fact that the appellant and his family left Canada only six days after their landing to return to Saudi Arabia for a period of 170 days; the appellant's next visit to Canada was for a period of six days after which he was absent for a further 792 days.

     This matter came before me for hearing at Toronto on May 7, 1997. Since appeals to the Federal Court under subsection 14(5) of the Citizenship Act are trials de novo, I am permitted to consider all of the evidence including the appellant's testimony and that of any other witness.

     The appellant is 69 years of age. He was born in Onaizah, Saudi Arabia. He arrived in Canada with his family at Toronto, Ontario, on December 30, 1990, having obtained a visa on October 16, 1990 in Paris, France. On January 10, 1991, a certificate was issued by the Ontario Ministry of Consumer and Commercial Relations with respect to an Ontario numbered company to be involved in trading; the appellant and his wife were sole directors. In early 1991, the appellant and his wife purchased and furnished a condominium. They also purchased a home as an investment. They returned to Saudi Arabia shortly thereafter. The appellant has indicated that he would like to come to Canada in order to secure a better education for his son who is yet of tender years.

     In Saudi Arabia, the appellant was the founder and chief executive officer of Eastern Corporation, an important company in the country, employing some 400 people. The purpose of the Canadian company was to source materials for Eastern Corporation. Mr. Al-Fraih returned to Saudi Arabia in May 1991 at the end of the Gulf war in order to look after his business but always with the intention of eventually returning to Canada. The evidence reveals that after 1991 he frequently travelled to the United States but did not visit Canada during these trips.

     At some time it appears that the appellant was unable to return to Canada because his Returning Resident Permit had expired. Initially he missed the first scheduled hearing of his application because of a Board Meeting in Riyadh. After expiry of his permit he subsequently unsuccessfully attempted to obtain a visa with the Canadian Consulate in Buffalo and as a result was unable to attend the next hearing. Finally he was able to obtain a Returning Resident Permit on April 29, 1996 and returned to Canada just in time for the hearing of his application.

     Before me the appellant gave evidence that it was sometime during 1988 that he thought he would like to come to Canada because he wanted to have his son pursue his education in this country; he initiated the process in 1989 and arrived on December 30, 1990 with his wife and his only son who was at the time five years of age.

     Other than being the President of Eastern Construction, he is also Chairman of the Saudi-Deutch Bank and a director of many other banks, insurance companies and other financial institutions. He could not sell his company in Saudi Arabia but he was arranging to let senior management slowly take over while he pursued immigration and established himself in Canada. Plans were changed because of the intervening Gulf War. Upon his return to Saudia Arabia his attempt at reorganisation had collapsed because the Saudi Government had expelled all Palestinians and Yemanies from the country and his ten principal middle management employees were Palestinians. As a result, he, his wife and son remained in order to pursue restructuring his enterprise and eventually disposing of it.

     In Canada in late 1990 or early 1991, he purchased a condominium for $145,000 and spent some $55,000 on furnishings. He then incorporated an Ontario company; the Gulf War interfered and drastic plan changes were required in order to reorganize and attempt to preserve Eastern Construction. In his own words, "everything was now a mess".

     He returned to Canada in June of 1991 with his family and lived at their condominium for the summer months. Then the family returned to Saudi Arabia. This was repeated again in the summer of 1992, during that school summer vacation.

     During 1994, he was attempting to arrange an appointment with a Citizenship Judge. He met with his Toronto counsel during the month of May urging him to complete the arrangement; though he kept insisting and his lawyer kept reassuring him, it was to no avail and his permit expired.

     In June of 1995, he attempted to return and met with a great deal of resistance at the U.S.-Canada border. He alleges that he was treated rudely; so badly that he is now reluctant to come to Canada. He subsequently obtained a permit which is presently valid until the end of 1998.

     This gentleman, other than the residence that he purchased in Toronto, also owns a home at Cannes in the south of France, a home in Montreux, Switzerland, and obviously must have a residence in Saudi Arabia. When asked by his counsel if his plan was to have his son enrolled in a Canadian school and why he never did it, he answered that his wife liked to travel with him and obviously did not want to leave without their young son. When asked if he would settle in Canada, he answers that once he has obtained citizenship he would come to this country.

     It is apparent that this appellant has not established roots in this country; other than buying a flat and a home, he never entered into any business ventures. The evidence reveals that the charter incorporating his company was revoked in 1993 or 1994. I accept that he had to return because of the Gulf War which disrupted his plan to dispose of his company in Riyadh. Nevertheless, there is no evidence that any further attempt to integrate into Canadian society was ever made. When asked if he looked into schools in Canada for his son, he replied that he had a friend looking into the situation.

     Even though it was suggested that he was not questioned in detail by the Citizenship judge in order to sufficiently determine his months of residency, I find as a fact that he was in Canada during those periods to which he attested before me.

     I have not been persuaded that this appellant had taken any steps to become interwoven into the Canadian society or fabric. It is a valued right to become a citizen of this country and have the privilege of travelling with a Canadian passport. I am not satisfied that any serious attempt was made at becoming a resident of Canada.

     The appeal of the appellant, Mohammed Abdul Al-Fraih, is dismissed. The appeal of the appellant's wife, Aminah Abdul Aziz Al-Sabig, in Court file no. T-1708-96, heard at the same time as the appeal of the appellant in Court file T-1702-96 is also dismissed.

     _________________________________

     JUDGE

OTTAWA, Ontario

July 9, 1997.