Date: 20020724
Docket: T-831-01
Neutral Citation: 2002 FCT 818
BETWEEN:
CANADA (MINISTER OF CITIZENSHIP AND IMMIGRATION)
Applicant
- and -
PIETRO GAMBINO
Respondent
REASONS FOR ORDER AND ORDER
HENEGHAN J.
[1] The Minister of Citizenship and Immigration (the "Applicant") appeals from the decision of Citizenship Judge Northcote, dated March 21, 2001. In her decision, the Citizenship Judge approved the citizenship application of Mr. Pietro Gambino (the "Respondent").
[2] The Respondent is an Italian citizen. He came to Canada together with his wife and young daughter on January 15, 1993. His move to Canada was related to his employment with the Banca Commerciale Italiana Group ("BCI Group").
[3] The Respondent initially entered Canada upon a business visa; his wife and daughter entered pursuant to visitor's visas. On October 12, 1996, the Respondent and his family obtained Permanent Resident status. A second child of the family was born in Canada on December 4, 1993 and he is a Canadian citizen.
[4] The Respondent worked in Canada from 1993 until 1998 when he was transferred to his company's office in Hungary. He was required to leave for Hungary in March 1998. The assignment was to be a temporary one and the Respondent maintained Canadian Returning Resident Permits ("RRP") during the period of his absence from Canada. Initially, the Respondent's wife and children stayed in Canada and he commuted when possible. However, he was absent from his family for long periods of time and decided, having regard to the age of his children, that these absences were not good for his family. Consequently, in May 1999, the Respondent's wife and children joined him in Hungary.
[5] The Respondent and his family had been living in rented accommodation in Canada and following the move of his wife and children to join him in May 1999, the lease on the rented property was cancelled.
[6] The Respondent applied for Canadian citizenship on April 30, 1999. His wife and daughter were joined in his application. The Respondent completed and returned a residence questionnaire on or about July 27, 2000.
[7] On February 21, 2001, he attended before the Citizenship Court in Scarborough, Ontario for a hearing before Citizenship Judge Northcote. She concluded that notwithstanding a shortage of 310 days relative to meeting the minimum requirement of three years residence in Canada, resulting from temporary absences during the four year period prior to his application, that the Respondent met the requirements of citizenship according to the Citizenship Act, 1974-75-76, c. 108, s. 1 (as amended) (the "Act"). Her decision also noted that the Respondent and his wife "hope to re-centralize their life in Canada in the near future".
[8] The Applicant seeks review of this decision on the basis that the Citizenship Judge erred in fact and in law when she decided to approve the Respondent's application for citizenship. More particularly, the Applicant argues that the Respondent failed to meet the requirements pursuant to section 5(1)(c) of the Act because he had failed to accumulate a minimum period of 1095 days residence in Canada.
[9] The Respondent submits that the decision of the Citizenship Judge is correct and should be allowed to stand. He argues that he always had the intention of applying for citizenship in Canada and that his absence in Hungary, for business purposes, was temporary. In such circumstances, the shortfall of some 310 days residence in Canada should not be the basis for rejecting his application for citizenship.
[10] In my opinion, this application should be allowed. It appears that the Citizenship Judge did err in fact and in law when she found that the Respondent had centralized his mode of living in Canada and had established an intention to apply for Canadian citizenship.
[11] The Citizenship Judge purported to rely on Re Papadogiorgakis, [1978] 2 F.C. 208 (Fed. T.D.) in concluding that the Respondent had demonstrated that he had centralized his mode of living in Canada. In my opinion, the Citizenship Judge misinterpreted that decision.
[12] In Re Papadogiorgakis, supra, the Court found that temporary absences from Canada for educational purposes did not detract from the establishment of a centralized mode of living in Canada. In the present case, the evidence shows that the Respondent relocated his wife and children in May 1999 from Toronto, Ontario to Hungary. This relocation followed closely upon submission of the Respondent's application for citizenship. Following his transfer to Hungary and before moving his family, the Respondent travelled on an interim basis from Hungary to rejoin his family in Toronto.
[13] In my opinion, the Respondent decentralized his mode of living in Canada when he gave up his rented premises and moved his family to Hungary. Furthermore, I conclude that the Citizenship Judge also recognized that he had decentralized his mode of living when she commented on the Respondent's future intention to re-centralize his mode of living in Canada. It would not be necessary to re-establish a centralized mode of living in Canada if that way of living had not previously been terminated.
[14] I accept the submissions of the Applicant and allow the appeal. The decision of the Citizenship Judge is quashed.
"E. Heneghan"
_____________________________
J.F.C.C.
OTTAWA, Ontario
July 24, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-831-01
STYLE OF CAUSE: MCI v. PIETRO GAMBINO
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 13th, 2002
REASONS FOR ORDER : THE HONOURABLE MADAM JUSTICE HENEGHAN
DATED: JULY 24th, 2002
APPEARANCES:
DEBRA DRUKARSH FOR APPLICANT
IRA NISHISATO FOR RESPONDENT
SOLICITORS OF RECORD:
DEPARTMENT OF JUSTICE
130 KING ST. W.
M5X 1K6 FOR APPLICANT
BORDEN & ELLIOT
40 KING ST. W.
M5H 3Y4 FOR RESPONDENT