Federal Court Decisions

     T-1698-96

     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

     DANIEL ELIAS HOOFT

     Appellant.

     REASONS FOR JUDGMENT

NADON J.:

     The appellant appeals from a decision of a Citizenship Judge denying his application for a grant of Canadian citizenship on the ground that he had not complied with paragraph 5(1)(c) of the Citizenship Act which provides that:

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;

     The appellant, born in Holland on April 21, 1975, arrived in Canada on August 7, 1981 with his parents, his two sisters and brother. His parents became Canadian citizens in 1996.

     The relevant facts were accurately summarized by the Citizenship Judge at page 2 of his decision where he writes:

You arrived in Canada in 1981 with your parents and siblings and lived at your parents" home in North York. You attended elementary and secondary school in Toronto until 1990. In September of 1990 you went to England and attended school until June of 1992. In September of 1992 you went to Moscow to study until June of 1993. In September of 1993 you went to Holland to study and are there to this day.

Your application shows that you have an Ontario driver"s licence, an Ontario Health Card, a Canadian bank account and a Returning Resident Permit. You applied for Citizenship in April of 1995. The significant time regarding your residence goes back four years to April of 1991. Your application shows that you were credited with 334 days. As there is no proof of your arrivals or departures and as a consequence of our discussion where you informed me that you came home only for Christmas vacation each year I doubt the accuracy of this number. Your parents became Canadian citizens in 1996.

     The Citizenship Judge found that the appellant, in the four years preceding his application for citizenship, had only spent 334 days in Canada out of a total of 1,095. The Citizenship Judge then found that the 10 years spent in Canada by the appellant, prior to his departure, were nullified by his not having spent any significant time in Canada since his citizenship application in April of 1995. Finally, concerning the appellant"s argument that his absence from Canada was the result of his studies abroad, the Citizenship Judge referred to the decision of Muldoon J. in Re: Pourghasemi (File T-80-92), where Muldoon J. states:

One may ask: So what if the would-be citizens be away at school or university? What is the urgency? If the candidate cannot find an adequate school or university in Canada, let him or her study abroad and then come back to Canada in order to comply with the residence requirement.

As a result, the Citizenship Judge refused to allow the appellant"s application for citizenship.

     I should perhaps add that the appellant is presently studying engineering at Delft University in Holland. He has 1" years to go before obtaining his diploma. He testified before me that he is interested in off-shore technology such as the Hibernia project in Newfoundland. The appellant does not deny not having spent much time in Canada during the last four years. He explains this, in part, by the fact that in Holland there are only 1" months of holidays between school years.

     It is not possible to decide an appeal where the appellant has been denied citizenship on the ground of "residence" without having regard to the decision of Thurlow A.C.J. (as he then was) in Re: Papadogiorgakis ¸ [1978] 2 F.C. 208. At 213 and 214 Thurlow A.C.J. explains the concept of "residence" under the Citizenship Act as follows:

[...] It seems to me that the words "residence" and "resident" in paragraph 5(1)(b ) of the new Citizenship Act are not as strictly limited to actual presence in Canada throughout the period as they were in the former statute but can include, as well, situations in which the person concerned has a place in Canada which is used by him, during the period as a place of abode to a sufficient extent to demonstrate the reality of his residing there during the material period even though he is away from it part of the time. This may not differ much from what is embraced by the exception referred to by the words "(at least usually)" in the reasons of Pratte J. but in a close case it may be enough to make the difference between success and failure for an applicant.

A person with an established home of his own in which he lives does not cease to be resident there when he leaves it for a temporary purpose whether on business or vacation or even to pursue a course of study. The fact of his family remaining there while he is away may lend support for the conclusion that he has not ceased to reside there. The conclusion may be reached, as well, even though the absence may be more or less lengthy. It is also enhanced if he returns there frequently when the opportunity to do so arises. It is, as Rand J. appears to me to be saying in the passage I have read, "chiefly a matter of the degree to which a person in mind and fact settles into or maintains or centralizes his ordinary mode of living with its accessories in social relations, interests and conveniences at or in the place in question".

     In Re: Koo, [1993] 1 F.C. 286, Reed J., at 293 and 294, after quoting with approval the above passage from Re: Papadogiorgakis, elaborated further on the concept of residency stating that:

The conclusion I draw from the jurisprudence is that 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. Questions that can be asked which assist in such a determination are:

(1) was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship?

(2) where are the applicant"s immediate family and dependents (and extended family) resident?

(3) does the pattern of physical presence in Canada indicate a returning home or merely visiting the country?

(4) what is the extent of the physical absences - if an applicant is only a few days short of the 1095 day total it is easier to find deemed residence than if those absences are extensive?

(5) is the physical absence caused by a clearly temporary situation such as employment as a missionary abroad, following a course of study abroad as a student, accepting temporary employment abroad, accompanying a spouse who has accepted temporary employment abroad?

(6) what is the quality of the connection with Canada: is it more substantial than that which exists with any other country?

     Obviously, Reed J."s questions are necessarily intended to be a guideline and, in my view, are not determinative. They offer, however, a very sound approach to the difficulty of determining whether, in a given case, an appellant "resides" in Canada. The appellant arrived in Canada at the age of six. He spent nine years studying at the Toronto French school until June 1990. In September 1990, he left for England where he studied for two years in order to obtain the European Baccalaureate. From September 1992 to June 1993, he was in Russia studying the Russian language. Since September 1990, he has been attending the University of Delft. Since the fall of 1990, the appellant has been returning to Canada approximately three to four times a year. When in Canada, the appellant lives at his parents" house in Don Mills, Ontario or at the family farm at Washington, Ontario. He has his own room at his parents" house.

     On the basis of the test enunciated by Thurlow A.C.J. in Re: Papadogiorgakis, I am satisfied that when the appellant left Canada for England in 1990, he had already established his home in Canada. In my view, the fact that the appellant has been studying abroad for the last seven years does not deprive him of his "residence" in Canada. In my view, the appellant left Canada "for a temporary purpose" to pursue his studies.

     For these reasons, this appeal shall be allowed.

     "MARC NADON"

     Judge

Ottawa, Ontario

June 11, 1997

     T-1698-96

OTTAWA, ONTARIO, THIS 11TH DAY OF JUNE 1997

PRESENT:      THE HONOURABLE MR. JUSTICE NADON

     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

     DANIEL ELIAS HOOFT

     Appellant.

     JUDGMENT

         The appeal is allowed.

     "MARC NADON"

     Judge