Ottawa, Ontario, August 31, 2006
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
and
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Ms.
Hosne Ara Jasmine was granted Canadian citizenship by a Citizenship Judge on
November 10, 2005. The Minister has appealed the judge’s decision on the
grounds that he erred in finding that Ms. Jasmine met residency requirement of
the Citizenship Act, R.S.C. 1985, c. C-29, s. 5(1)(c). I agree
that the judge erred and must, therefore, allow this appeal.
I. Issue
[2]
Was
the judge’s conclusion that Ms. Jasmine met the residency requirement of the
Act reasonable?
II. Analysis
(a) Facts
[3]
Ms.
Jasmine came to Canada in 1997 as a graduate student in mathematics at
Simon
Fraser University. After
obtaining her master’s degree in 2000, she accepted a Commonwealth scholarship
and moved to England to pursue a
doctoral degree. She applied for Canadian citizenship on December 1, 2002 while
she was still living in England.
(b) Residence
requirement
[4]
To
obtain Canadian citizenship, an applicant must show that he or she was a
resident of Canada for three
years during the four years preceding the application (s. 5(1)(c)). The
law allows some flexibility in applying this requirement, recognizing that a
person who has firmly established his or her connection with Canada may still be
considered a resident during periods of absence. Citizenship judges must consider
a variety of factors and criteria in deciding whether an applicant has
maintained his or her residence in Canada, notwithstanding
frequent or sustained absences. See, for example, Koo (Re), [1993] 1
F.C. 286 (T.D.); Woo v. Canada (Minister of Citizenship and Immigration),
(1999) F.C.J. No. 1808 (T.D.) (QL); Canada (Minister of
Citizenship and Immigration) v. Nandre, 2003 FCT 650, [2003]
F.C.J. No. 841 (T.D.) (QL).
[5]
In
Ms. Jasmine’s case, the citizenship judge found that she was present in Canada for 399 days
during the four years prior to her application. This put her 696 days short of
the requirement of three years’ residence. The question for the judge, then,
was whether Ms. Jasmine’s connection with Canada was
sufficiently strong that she could be considered a resident of Canada even when
she was living in England.
(c) The
decision
[6] The Citizenship judge stated:
In the relevant period prior to filing
the application, Dr. Jasmine’s absences from Canada are mainly related to study at University of Manchester. There is no
doubt that her absence of three years for studies in England is substantial, yet she seem[s] to have
centralized her life in Canada. Prior to her departure, she
moved her furniture and belongings to her Professor’s basement suit[e]. It is
reasonable to conclude that she had no intention of abandoning her connection
with Canada. During the period of her
studies at Manchester, she came back to Canada to stay at the basement suite where she
had her belongings.
[7]
The
judge seems to have adopted the test approved by Justice Barbara Reed in (Re)
Koo, above, in which she stated that the test of residence “is whether Canada is the
country in which [the applicant] has centralized his or her mode of existence”
(at p. 293). She went on the list numerous factors that should be considered by
citizenship judges in applying that test.
(d) The
appellant’s position
[8]
In
Ms. Jasmine’s case, the judge concluded that Ms. Jasmine had centralized her
mode of existence in Canada primarily by storing her furniture here,
and by visiting three times over the course of her three years’ absence. The
appellant argues that the judge failed to consider all of the relevant factors
when he concluded that Ms. Jasmine had centralized her life in Canada. I agree.
[9] Justice Reed proposed the following questions for citizenship judges to consider when determining whether an applicant has met the residence requirement of the Act:
(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 1,095-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 employment abroad?
(6)
what is the quality of the connection with Canada: is it more
substantial than that which exists with any other country?
[10] Clearly, the citizenship judge did not conduct a thorough analysis of Ms. Jasmine’s circumstances before concluding that she met the test. Given that the judge failed to address a number of the important relevant factors, I must allow this appeal: Seiffert v. Canada (Minister of Citizenship and Immigration), 2005 FC 1072; Canada (Minister of Citizenship and Immigration) v. Singh, 2006 FC 795.
JUDGMENT
THIS COURT’S JUDGMENT IS that:
1. The appeal is allowed.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-22-06
STYLE OF CAUSE: MCI v. JASMINE
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: August 15, 2006
APPEARANCES:
|
Ms. Liliane Bantourakis
|
|
|
Jawant Singh Mangat
|
SOLICITORS OF RECORD:
|
JOHN H. SIMS, Q.C. Department of Justice Toronto, ON |
|
|
MANGAT & SEMOTIUK Toronto, ON
|