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T-2335-86
Secretary of State (Appellant)
v.
Ali-Yullah Nakhjavani (Respondent)
T-2336-86
Secretary of State (Appellant)
v.
Violette Nakhjavani (Respondent)
INDEXED AS: CANADA (SECRETARY OF STATE) V. NAM-MAYAN)
Trial Division, Joyal J.—Toronto, June 26; Ottawa, August 14, 1987.
Citizenship Residency requirements — Applicant's posi
tion with religious organization dictating residence in Israel — Establishment of place of abode in Canada coupled with intent to return insufficient where respondents in Canada at most two months over four years — Failure to show capacity of becom ing part of society.
The respondents, both stateless persons, were members of the Baha'i Faith whose duties required the husband, as a member of the supreme governing body, and the wife, as a travelling companion, to live in Haifa, Israel, and to travel extensively abroad. They were granted permanent admission to Canada in 1982. Since that time, the husband had accumulated but 22 days of residency in Canada, and the wife, 60 days. In spite of this, the Citizenship Court decided that they should be granted citizenship on the basis that they had established permanent residence in an apartment in the wife's brother's house in Toronto and that they had to remain in Haifa because of their responsibilities to the Baha'i Faith.
This is an appeal from that decision. Held, the appeal should be allowed.
Even though case law has given an extended meaning to the residency requirements of paragraph 5(1)(b) of the Act, the respondents still do not meet the new two-pronged test: the intention to remain in Canada on a permanent basis and facts representing tangible expressions of that intention.
Citizenship was meant to be granted only to persons who have shown they are capable of becoming a part of our society. A place of abode and an intention to return are insufficient when the applicants for citizenship have not in any way become interwoven into the Canadian fabric or developed a certain relationship with Canadians or Canadian institutions as con templated in the Citizenship Act.
Prior to his landing in Canada, the husband was already committed to religious duties which imposed a continuing residence in Haifa. As for the wife, although her initial stay in
Canada lasted four weeks, her subsequent visits were essentially by reason of her duties as a travelling companion to her husband, requiring her attendance at religious meetings in Ottawa and Montréal. The respondents never resided together in Canada.
For the purposes of the Act, a landed immigrant cannot simply adopt Canada as a flag of convenience. Canada had done what it could for the respondents in accepting them as landed immigrants, in issuing documents allowing them to travel abroad and in providing them with a safe haven when ever they wish to return.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Citizenship Act, S.C. 1974-75-76, c. 108, s. 5(1)(b) (as am. by S.C. 1976-77, c. 52, s. 128), (4).
CASES JUDICIALLY CONSIDERED
APPLIED:
Citizenship Act (In re) and in re Papadogiorgakis, [1978] 2 F.C. 208 (T.D.); Re Anquist (1984), 34 Alta. L.R. (2d) 241; [1985] 1 W.W.R. 562 (F.C.T.D.); Blaha v. Minister of Citizenship and Immigration, [19711 F.C. 521 (C.A.C.).
COUNSEL:
V. Bell for appellant.
Sheldon M. Robins for respondent.
Peter K. Large, amicus curiae.
SOLICITORS:
Deputy Attorney General of Canada for appellant.
Sheldon M. Robins, Toronto, for respondent. Peter K. Large, Toronto, amicus curiae.
The following are the reasons for judgment rendered in English by
JOYAL J.: The Secretary of State appeals from a decision of the Citizenship Court granting citizen ship to the two respondents herein.
This Court is seized of two separate appeals, the respondents being husband and wife. As the factu al situation respecting both cases is substantially the same and as both appeals were heard together, it is proper that the reasons for judgment herein should apply to each spouse.
The respondents are members of the Baha'i Faith. The husband is one of nine members of the
supreme governing body, The Universal House of Justice, located in Haifa, Israel. He has been a member of this body since 1963, having been elected for successive five-year terms, the last of which expires in 1988. The wife Violette is also involved as a travelling companion in the several responsibilities attendant upon the promotion and maintenance of the Baha'i Faith. Both husband and wife travel extensively in the performance of their various duties.
The husband is now a stateless person. He was born an Iranian national in Haifa, Israel, in 1919. In 1936, he moved to Iran. He stayed there twelve years. He then spent eleven years in Uganda and returned to Haifa in 1961. He has been exercising his religious and administrative duties in Haifa since that time.
The wife was also an Iranian citizen. She was born in Tehran, lived for a while in Uganda and subsequently joined her husband in Haifa where, as she put it in her evidence, she has been living ever since.
The 1979 revolution in Iran changed everything. The couple applied for permanent admission to Canada. Their application was granted. The wife was landed in Canada on August 5, 1982. The husband was landed on September 17, 1982. Their application for Canadian citizenship was heard before the Citizenship Court on August 26, 1986.
The citizenship record discloses that during the intervening years, the husband had accumulated some 22 days of residency in Canada. The wife in turn had accumulated approximately 60 days of residency here.
On arrival in Canada in 1982, the respondents occupied the lower portion of a split-level residence at 200 Green Lane in Thornhill, Ontario. The residence is owned by the wife's brother, Mr. A. H. Banani. The respondents did not bring any settlers' effects with them but the space reserved for them in the home, which consisted of a living- room, bedroom, kitchen and bathroom, was fur nished in due course. Both respondents and Mr. Banani testified that throughout that time, the lodgings were kept reserved for the exclusive use of the respondents.
On the evidence also, the husband remained in Canada for fifteen days after his landing on Sep- tember 17, 1982. He returned to Canada on August 24, 1983 and remained for seven days. The wife, on her part, was in Canada for one month subsequent to her landing on August 5, 1982. She returned to Canada for two weeks in 1984 and a further two weeks in 1985.
The appeal before me is to decide whether or not the respondents meet the residency require ments under paragraph 5(1)(b) of the Citizenship Act [S.C. 1974-75-76, c. 108 (as am. by S.C. 1976-77, c. 52, s. 128)] and which reads as follows:
5. (1) The Minister shall grant citizenship to any person who, not being a citizen, makes application therefor and
(b) 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 Immigra tion Act, /976, 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 follow ing manner:
(i) for every day during which he was resident in Canada before his lawful admission to Canada for permanent residence he shall be deemed to have accumulated one-half of a day of residence, ...
On their application for citizenship, Judge Maria Sgro of the Court of Canadian Citizenship ruled that the respondents had met the residency test of section 5 of the Act. In her judgment of August 26, 1986, Her Honour stated as follows:
These applicants established and maintained their residence in Canada. I consider that they have provided proof of resi dence, therefore, I recommend a grant of citizenship under Section 5(1)(b).
Mr. & Mrs. NAKHJAVANI are members of the BAHA'I Faith. Mr. NAKHJAVANI is one of nine members of the supreme governing body, The Universal House of Justice, located in Haifa, Israel. He has been re-elected to this position four times since 1968, the length of each term being 5-years. This last term will expire on April 21, 1988.
Because of the spiritual and executive responsibilities both applicants had to return to Haifa shortly after they received their landed immigrant status, however, they centralized their ordinary mode of living be [sic] residing in, and by keeping a self-contained apartment. In it, they have their furniture, kitch en utensils, books and household items ....
It is to this apartment they return when their responsibilities of the BAHA'I World Centre permit.
On July 3, 1973, Mr. A.H. Banani, the applicants (sic) brother-in-law, acting as a trustee, bought a house for Mr. & Mrs. NAKHJAVANI located at 64 Castlefield Avenue, Toronto. Ontario. This property, at the moment, is rented, but it is the applicants' intention to live in it upon their return to Canada
Because of this sacred obligation to serve in this administra tive body of "Faith", the applicants were unable to spend more time as "physically present" in Canada, but they consider this country as their home to which they will return as soon as possible.
The Secretary of State appeals on the ground that the Citizenship Court erred in law and in fact by approving the respondents' application for citi zenship before they had accumulated at least three years of residence in Canada as provided in para graph 5(1)(b) of the Citizenship Act and therefore the Citizenship Court Judge had exceeded her jurisdiction in approving the application.
It appears clear from the Citizenship Court Judge's comments that two material facts prompt ed her to conclude that the respondents' residency requirements had been met, namely that they had established a permanent residence in Canada in the home of Mr. Banani and that the husband's obligations to his Baha'i Faith made it imperative for him to remain in Haifa on a continuing basis.
It is conceded by the appellant that jurispru dence has given an extended meaning to the resi dency provisions under paragraph 5(1)(b) of the Citizenship Act. It was Citizenship Act (In re) and in re Papadogiorgakis, [1978] 2 F.C. 208 (T.D.), that Thurlow A.C.J., as he then was, after making a detailed analysis of the statutory requirements and of the judicial interpretations given from time to time to the word "residence", concluded that the concept was not strictly limited to actual physi cal presence in a particular locality. It could include as well a situation where a person has a place of abode to demonstrate the reality of his residing there even though he might be away from it for part of the time. His Lordship, at page 214, had this to say:
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 tc 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 conlusion 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".
The Papadogiorgakis case did not necessarily short-circuit the residency requirements of the Canadian Citizenship Act but it did remove it from the numbers-crunching game of figuring out whether or not any particular applicant had physi cally resided in Canada for three-quarters of the time during a four-year period. It imposed on the courts an enquiry covering both intention and fact, neither of these elements being considered deter- minative by itself. A self-serving declaration of intention therefore might have little weight unless it were buttressed by objective facts representing tangible expressions of that intention i.e. owner ship of residential property, car registration, bank accounts, club or association memberships, and particularly, the continuing presence in Canada of immediate family members and to whom an individual might return from time to time even for only brief periods of time.
Similarly, objective facts by themselves might not be conclusive if they only indicated some kind of presence in Canada but where a contrary inten tion to make of Canada one's place of residence became self-evident. An example of this would be an applicant who is landed in Canada, rents space with a bed in it, opens an agency, appoints some one to run it, and then returns to his country of origin to live with family and friends and to carry on his main business as usual. If facts such as these were to come out of an enquiry, it would be logical to conclude that the applicant has not even met the prime residency test which the statute imposes. Such a person might be a perfectly good landed immigrant but it would not entitle him to citizenship four years later.
I should observe that in cases where prolonged absences from Canada are put to the test, a dis tinction must always be kept in mind between the
status conferred to a landed immigrant under the Immigration Act, 1976 [S.C. 1976-77, c. 52] and the granting of citizenship under the Citizenship Act. A landed immigrant is always entitled to re-admission to Canada so long as the provisions of section 24 of the Immigration Act, 1976 are respected. The grant of citizenship, however, is something else. It confers special status to a person, a status recognized and respected through out the world. It attaches not only to the person but to his progeny as well. It bestows a particular identity which is perpetual and indefeasible.
Mr. Justice Muldoon refers to this matter in his careful analysis of the law in Re Anquist (1984), 34 Alta. L.R. (2d) 241; [1985] 1 W.W.R. 562 (F.C.T.D.), where he quotes from Mr. Justice Pratte's judgment in Blaha v. Minister of Citizen ship and Immigration, [1971] F.C. 521 (C.A.C.), as follows, at page 525:
Parliament wishes .. . to ensure that Canadian citizenship is granted only to persons who have shown they are capable of becoming a part of our society.
These words were spoken before the 1976 amendments made it possible to apply more liberal residency rules. Nevertheless, Muldoon J. could affirm that [at pages 249 Alta. L.R.; 571-572 W.W.R.]:
The spirit of the Act has not been changed by the subsequent amendment even though the means of establishing residence have been broadened by reference to s. 24 of the Immigration Act, 1976. As Pratte J. indicated, Parliament intended that the applicant for citizenship demonstrate that he or she has actual ly resided among Canadians and in effect thrown in his or her lot with us in some Canadian community.
The thrust of the respondents' argument before me is that the establishment of a permanent resi dence in part of Mr. Banani's house in Thornhill constitutes the type of residency falling within the terms of paragraph 5(1)(b) of the Citizenship Act. Coupled with an intention to return as evidenced by the issue of returning resident permits, the two elements of fact and intention meet the test pro vided in that section. In this respect, I must again quote Muldoon J. in the Anquist case (supra)
where he says at [pages 249 Alta. L.R.; 572 W.W.R.]:
If the provisions of s. 5(1)(b) of the Citizenship Act required no more than compliance with the qualifying exception of s. 24(2) of the Immigration Act, then clearly the appeal would be allowed. But those provisions do require more. As Addy J. said in the Stafford case ((1980), 97 D.L.R. (3d) 499 at pages 500 and 501), they require more than "a mere intent to return".
An intent to return is easily established when the respondents before me must indeed return to Canada sooner or later. The only travel document they have is a Canadian Certificate of Identity renewable every year. They also have residency permits in Israel while the husband is engaged there in his religious and administrative duties but the stability of their status is only assured by their ability to return to Canada.
I would not agree that the simple fact of a place of abode in Canada and an intention to return to it are sufficient to fit the respondents within the parameters of paragraph 5(1) (b) of the Act even if that provision were construed in a most flexible manner. I fail to see where in the period of 1982- 1986, the respondents became in any way inter woven into the Canadian fabric or otherwise devel oped the kind of relationship with Canadians or their institutions within the meaning contemplated by Parliament in its statute. Of significance in this respect is that prior to the date of the husband's landing, he was already committed to his duties with the Baha'i Faith, duties which evidently imposed on him a continuing residence in Haifa. It cannot be said therefore that when he landed in Canada, he had the intention of establishing a new residence here. The jurisprudence is clear that before the length or tenure of residency can be subjected to the residency test under the Act, an applicant must first of all establish that he has taken up residence in Canada. A stay of two weeks in September 1982 and of one week in August 1983, which appears on the record, might be regarded as a technical fulfillment of that particu lar rule but, in my view, it falls short of the substantial requirements which the statute imposes.
As far as the wife is concerned, it is true that her initial stay in Canada lasted four weeks. I
conclude from her evidence, however, that her two weeks in Canada in 1984 and a further two weeks in 1985 were substantially by reason of her duties as a travelling companion which required her attendance at Baha'i Faith meetings in Ottawa and Montréal.
It would also appear from the evidence on record that at no time did husband ans wife actu ally reside together in Canada. This is not to suggest that marital cohabitation in Canada is necessarily a prerequisite to establishing a Canadi- an residence under citizenship rules, but it does indicate, in my view, that the pied-à-terre in Thornhill, Ontario, cannot be said to rest on firm ground.
If one should attempt to list the various indicia to determine whether or not an applicant complies with the intended meaning of the residency rules under the Citizenship Act, the result would be an exhausting and exhaustive endeavour. On the facts before me, no such indicia, apart from the respondents' right to occupy premises in Thornhill, or anywhere else in Canada for that matter, emerge. For purposes of the Citizenship Act, and of the statutory requirements under section 5 thereof, a landed immigrant cannot simply adopt Canada as a flag of convenience.
In concluding that the Secretary of State's appeals should be allowed, I should not overlook other elements of the issues before me. It is true that husband and wife, both Iranian nationals, are now stateless persons. They have no passports. Their duties of office require them to live in Haifa, Israel. According to their evidence, they are well- known there and have experienced no difficulties in obtaining renewals of their Israel residency permits. They are also well-known to the Canadian mission in Israel and their Canadian Certificates of Identity have also been renewed without dif ficulty. The duties of both husband and wife require them to travel extensively and their Canadian travel document has enabled them to visit the United Kingdom, Cypress, France, West Germany, the Benelux countries, the United States, Switzerland and presumably other coun tries as well.
The husband did suggest that a Certificate of Identity, as against a passport, was inconvenient. It has to be renewed every year instead of every five years. The wife also testified that she suffered hassles from time to time when entering a particu lar country, a risk which she felt would be elimi nated if she were in possession of a Canadian passport. Admittedly, many of these things are inconvenient but difficulties with visas or entry permits are normal for people like the respondents who travel extensively. They are even normal for people who travel extensively on valid Canadian passports. These incidents should be no grounds to change the law in the respondents' favour.
There is also evidence of the husband with respect to his obligations under Baha'i Faith. An election to The Universal House of Justice carries with it a sacred duty to carry out the responsibili ties of his office. This requires continuing resi dence in Haifa in a house which the Faith supplies for him. If re-elected next year for another five- year term, he would feel duty-bound to continue residing in Haifa and husband and wife would be unable to fulfill Canadian residency rules to obtain their citizenship.
The Court may very well understand this pre dicament and express sympathy for the people facing it. Nevertheless, as was succinctly pointed out by the amicus curiae at the hearing, Canada has already done what it can for the respondents in accepting them as landed immigrants, in issuing travel documents which do not hinder their many excursions abroad and in providing them with a safe haven whenever they wish to return.
Admittedly, events might occur which would change the current situation respecting the respondents and create the kind of special or unusual hardship referred to in subsection 5(4) of the Act and where a recommendation for the Governor in Council intervention might be made. Such a situation, however, has yet to develop and it would be premature on my part to make such a
recommendation at this time. Of course, this does not preclude other representations being made to the Governor in Council which might be based on further fact or evidence which is not before this Court.
The appeals by the Secretary of State are allowed and the orders of the Citizenship Court rescinded. There are no costs in these proceedings.
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