Date: 20010524
Docket: T-1060-00
Ottawa, Ontario, May 24 , 2001
Before: Pinard J.
B E T W E E N :
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Plaintiff
- and -
LABIB BOU KHZAM
Defendant
JUDGMENT
The plaintiff's appeal is allowed. The decision by the citizenship judge Jeanine C. Beaubien on April 25, 2000 is quashed on the ground that at the time the defendant applied for Canadian citizenship he did not meet the residence requirements set out in s. 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29. The application made by the defendant for Canadian citizenship is accordingly dismissed.
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YVON PINARD JUDGE |
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
Date : 20010524
Docket: T-1060-00
Neutral reference: 2001 FCT 513
B E T W E E N :
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Plaintiff
- and -
LABIB BOU KHZAM
Defendant
REASONS FOR JUDGMENT
PINARD J.
[1] This appeal pursuant to s. 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 ("the Act") is from a decision of a citizenship judge who on April 25, 2000 approved the defendant's citizenship application. The plaintiff maintained that the defendant did not meet the residence requirements laid down in s. 5(1)(c) of the said Act.
[2] The defendant, a national of Lebanon, obtained landing in Canada on December 30, 1995. He filed his application for Canadian citizenship on January 8, 1999. He was physically present in Canada for some 205 days during the period preceding his application. During the first 355 days of that period (between January 9 and December 29, 1995) the defendant had not yet immigrated to Canada. For the remainder, during his absences the defendant was primarily in Saudi Arabia and Spain, where he was doing business in sales for the company which employs him.
[3] The residence requirements set out in s. 5(1)(c) of the Act are as follows:
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:
5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois :
. . . . .
c) a été légalement admise au Canada à titre de résident permanent, n'a pas depuis perdu ce titre en application de l'article 24 de la Loi sur l'immigration, et a, dans les quatre ans qui ont précédé la date de sa demande, résidé au Canada pendant au moins trois ans en tout, la durée de sa résidence étant calculée de la manière suivante:
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(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 . . . (Emphasis added.) |
(i) un demi-jour pour chaque jour de résidence au Canada avant son admission à titre de résident permanent; (ii) un jour pour chaque jour de résidence au Canada après son admission à titre de résident permanent.
(Mon emphase.) |
[4] In Re Pourghasemi (1993), 19 Imm. L.R. (2d) 259, at 260, my brother Muldoon J. discussed the objectives underlying this provision of the Act:
. . . to insure that everyone who is granted precious Canadian citizenship has become, or at least has been compulsorily presented with the everyday opportunity to become, "Canadianized." This happens by "rubbing elbows" with Canadians in shopping malls, corner stores, libraries, concert halls, auto repair shops, pubs, cabarets, elevators, churches, snyagogues [sic], mosques and temples - in a word where ever one can meet and converse with Canadians - during the prescribed three years. One can observe Canadian society for all its virtues, decadence, values, dangers and freedoms, just as it is. That is little enough time in which to become Canadianized. If a citizenship candidate misses that qualifying experience, then Canadian citizenship can be conferred, in effect, on a person who is still a foreigner in experience, social adaptation, and often in thought and outlook. If the criterion be applied to some citizenship candidates, it ought to apply to all. So, indeed, it was applied by Madam Justice Reed in Re Koo, T-20-92, on December 3, 1992 [reported 19 Imm. L.R. (2d) 1], in different factual circumstances, of course.
(See also the judgments of the Federal Court Trial Division in Re Afandi (November 6, 1998), T-2476-97, M.C.I. v. Kam Biu Ho (November 24, 1998), T-19-98, M.C.I. v. Chen Dai (January 6, 1999), T-996-98, M.C.I. v. Chung Shun Paul Ho (March 1, 1999), T-1683-95, M.C.I. v. Fai Sophia Lam (April 28, 1999), T-1524-98, M.C.I. v. Su-Chen Chiu (June 9, 1999), T-1892-98 and M.C.I. v. Chi Cheng Andy Sun (June 6, 2000), T-2329-98.)
[5] This Court has held that a correct interpretation of s. 5(1)(c) of the Act does not require an individual to be physically present in Canada throughout the 1,095 [-day] period prescribed when special and exceptional circumstances exist. However, I consider that actual presence in Canada is still the most relevant and important factor in establishing whether a person was "resident" in Canada within the meaning of this provision. As I have said many times, an unduly long absence, though temporary, during this minimum period is contrary to the spirit of the Act, which already allows a person legally admitted to Canada as a permanent resident not to reside in Canada for one of the four years preceding the date on which he or she applies for citizenship.
[6] Consequently, as in the case at bar the defendant was out of Canada for lengthy periods (he was absent for about 895 of the 1,095 days of residence in Canada required by the Act), I conclude that the conclusion drawn by the citizenship judge, namely that the defendant met the residence requirements laid down in the Act, is entirely unreasonable and results from a mistaken application of s. 5(1)(c) of the Act.
[7] Accordingly, the appeal is allowed and the decision by the citizenship judge on April 25, 2000 quashed on the ground that at the time the defendant applied for Canadian citizenship he did not meet the residence requirements set out in s. 5(1)(c) of the Act. The application made by the defendant for Canadian citizenship is accordingly dismissed.
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YVON PINARD JUDGE |
OTTAWA, ONTARIO
May 24, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE: T-1060-00
STYLE OF CAUSE: Minister of Citizenship and Immigration v. Labib Bou Khzam
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 24, 2001
REASONS FOR JUDGMENT BY: PINARD J.
DATED: May 24, 2001
APPEARANCES:
Daniel Latulippe FOR THE PLAINTIFF
Martin Brisson FOR THE DEFENDANT
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE PLAINTIFF
Deputy Attorney General of Canada
Montréal, Quebec
Michel Poissant FOR THE DEFENDANT
Brossard, Quebec