T-50-91
In the matter of Jenann Tareq Ismael (Appellant)
INDEXED AS: ISMAEL (RE) (T.D.)
Trial Division, MacKay J.—Calgary, June 16;
Ottawa, June 30, 1992.
Citizenship — Residency requirements — Appeal from citi
zenship judge's decision refusing application for citizenship
for failure to satisfy residence requirement established by Citi
zenship Act, s. 5(1) — Insufficient number of days accumulated
within four years preceding date of citizenship application —
Physical presence not sole test for residence under s. 5(1)(c) —
Case law reviewed — Applicant must establish residence in
Canada with clear intention to reside there — Appellant absent
from Canada for completion of advanced studies — Numerous
indicia of continuing ties with Canada while studying abroad
— Appellant considering Canada as home and intending to
continue to reside there on completion of studies abroad —
Minority not bar to establishing residence in Canada —
Absence for purposes of studies not affecting residence —
Residency requirements of s. 5(1)(c) met — Appeal allowed.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Citizenship Act, R.S.C., 1985, c. C-29, ss. 5(1), 14(5).
CASES JUDICIALLY CONSIDERED
APPLIED:
Re Chien, T-28-90, Dubé J., judgment dated 6/2/92,
F.C.T.D., not yet reported; Re Law, T-1604-91, Reed J.,
judgment dated 22/5/92, F.C.T.D., not yet reported.
CONSIDERED:
Re Kelly (1990), 11 Imm. L.R. (2d) 44; 32 F.T.R. 241
(F.C.T.D.); In re Citizenship Act and in re Lee, T-2242-
84, Cullen J., judgment dated 1 2 / 3 /85, F.C.T.D., not
reported.
REFERRED TO:
Canada (Secretary of State) v. Nakhjavani, [1988] 1 F.C.
84; (1987), 2 Imm. L.R. 241; 13 F.T.R. 107 (T.D.).
APPEAL from a decision of the citizenship judge
refusing appellant's application for Canadian citizen
ship for failure to satisfy the residence requirement
established by paragraph 5(1)(c) of the Citizenship
Act. Appeal allowed.
COUNSEL:
Meir Porat for appellant.
Fred A. Beasley, amicus curiae.
SOLICITORS:
Meir Porat, Calgary, for appellant.
Fred A. Beasly, Calgary, amicus curiae.
The following are the reasons for judgment ren
dered in English by
MACKAY J.: This is an appeal pursuant to subsec
tion 14(5) of the Citizenship Act, R.S.C., 1985, c.
C-29 as amended, from the decision of the citizenship
judge who refused the appellant's application for
Canadian citizenship on the ground that the appellant
had failed to satisfy the residence requirement estab
lished by the Act. In all other respects the citizenship
judge found the appellant met all of the requirements
for citizenship.
Subsection 5(1) of the Act provides:
5. (1) The Minister shall grant citizenship to any person who
(a) makes application for citizenship;
(b) is eighteen years of age or over;
(c) has been lawfully admitted to Canada for permanent resi
dence, has not ceased since such admission to be a perma
nent 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 perma
nent residence the person shall be deemed to have accu
mulated 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 perma
nent residence the person shall be deemed to have accu
mulated one day of residence;
(d) has an adequate knowledge of one of the official lan
guages of Canada;
(e) has an adequate knowledge of Canada and of the respon
sibilities and privileges of citizenship; and
(f) is not under a deportation order and is not the subject of a
declaration by the Governor in Council made pursuant to
section 20.
In communicating her decision to the appellant, by
letter dated December 7, 1990, the citizenship judge
said in part:
Under paragraph 5(1)(c) of the Act, an applicant is required to
have accumulated at least three years of residence in Canada
within the four years immediately preceding his or her applica
tion.
The requirement (based on 3 years) is 1095 days. Subtracting
your physical presence of 606 days you are short 489 days of
the legal requirement (1095 — 606 = 489). In these circum
stances you had to satisfy me, in order to meet the residence
requirement, that your absences from Canada (or at least a part
of these), could be counted as a period of residence in Canada.
In view of the facts available I am led to conclude that your
presence in Canada were only visits or temporary stays. This is
insufficient to consider that you centralized your mode of liv
ing within the four years preceding the date of your application
and therefore your absences from Canada cannot be counted as
a period of residence in Canada.
Referring to comments of my colleague Mr. Justice
Joyal in Canada (Secretary of State) v. Nakhjavani,
[1988] 1 F.C. 84 (T.D.), the decision of the citizen
ship judge concludes:
In my view, Miss Ismael's physical presence of 606 days, in
Canada, falls considerably short of the requirements which the
statute imposes. I do not believe she became, in any way,
"a part of the Canadian fabric or developed a relationship
with Canadians or their institutions, within the meaning
contemplated by Parliament in its statute".
Recent jurisprudence makes clear that physical
presence in Canada is not the sole test for residence
under paragraph 5(1)(c) of the Act. In the appeal of
Re Chien (Court file T-28-90, February 6, 1992 [not
yet reported]) Mr. Justice Duhé notes [at page 1]:
The jurisprudence in the matter has clearly established that
physical presence in Canada is not required throughout the
period, provided the applicant has established a residence and
kept a pied-Ã -terre in Canada with the intention to reside in
this country.
In the appeal of Re Law (Court file T-1604-91,
May 22, 1992 [not yet reported]) Madam Justice
Reed comments [at pages 1-2]:
It is trite law that actual physical presence in Canada for the
whole three year period (1,095 days) is not required. In Re
Papadogiorgakis, [1978] 2 F.C. 208 (T.D.) the applicable test
was described as being whether an individual "in mind and
fact settles into or maintains or centralizes his ordinary mode
of living with its accessories in social relations, interests and
conveniences" in Canada. If such is the case then temporary
periods of physical absence will be counted for the purposes of
fulfilling the 1,095 days residency requirement.
Thus, while residence requirements set by the stat
ute must be met, once residence is established, physi
cal presence in the country is not essential for every
day of the required three years' residence, provided
absence from the country in the four years prior to
application for citizenship is not such that it is con
sidered to interrupt an established pattern of resi
dence in this country and there continues to be a clear
intention to reside and centralize one's ordinary
mode of living in Canada.
Other decisions of this Court have made it clear
that it is not necessary that residence be established
within the four years prior to application for citizen
ship. One may establish residence prior to the four-
year period relevant to an application for citizenship.
Thus, in Re Kelly (1990), 11 Imm. L.R. (2d) 44
(F.C.T.D.), McNair J. allowed the appeal of an appli
cant granted landed immigrant status in 1956, who
was subsequently employed by the Royal Bank of
Canada and posted abroad from 1961 almost entirely
to 1988 when he applied for citizenship. His Lord
ship found that residence had been established in
Canada in the period 1975-1978 and in view of peri
odic returns to Canada on a regular basis each year,
the maintenance of an apartment in this country, pay
ment of taxes and numerous other ties continuing
through his years abroad, the residence requirements
of the Act had been met. In the matter of In re Citi
zenship Act and in re Lee (Court file T-2242-84,
March 12, 1985, (F.C.T.D.) unreported), Mr. Justice
Cullen allowed the appeal of one who came to
Canada as a landed immigrant, at age eleven as a
dependant with his family, who subsequently com
pleted schooling and first year of university studies in
Canada before continuing studies and practical pro
fessional training abroad. His studies and training
were in the United States, England and Hong Kong
and this entailed his absence from Canada for almost
a full eight consecutive years prior to his application
for citizenship. Implicitly that decision recognized
that residence had been established in Canada prior to
commencement of studies and training abroad and
that the absence for almost eight years for purposes
of study and training did not mean that the applicant
was not resident in Canada for purposes of the Act.
When this matter was heard in Calgary the appel
lant was present, represented by counsel, and ques
tioned extensively by her counsel and by counsel as
amicus curiae. At the conclusion of the hearing, I
invited counsel to provide written submissions con
cerning the question whether the appellant, having
lived in Canada for some 16 years prior to commenc
ing studies abroad at age 17, could be considered to
have acquired residence in Canada prior to attaining
the age of majority. I acknowledge the helpful assis
tance from submissions of counsel received since the
hearing.
The issue presented by this appeal is whether a
person admitted to Canada as a landed immigrant
while an infant and a dependant of her parents with
whom she came to this country, whose whole life
was spent almost entirely in Canada for some 16
years while she completed public and secondary
school programs, and who at age 17 commenced uni
versity studies abroad, returning to her family home
in Canada when university classes were not in ses
sion should be granted citizenship when, on applica
tion at age 22 she has been physically present in
Canada for less than the equivalent of three full years
in the four years immediately preceding her applica
tion.
In this case the appellant was born in January,
1968, in the United States. She was admitted to
Canada for permanent residence as a landed immi
grant in October, 1969, when she came to this coun
try with her family, her mother, father and a sister.
Both of her parents are members of faculty at the
University of Calgary and they have resided in
Alberta since 1969 in various family homes except
for the academic year 1973-1974 when the family
lived in Baghdad where her father, for purposes of
his research, was on sabbatical leave from the Uni
versity of Calgary. The appellant completed all of her
primary and secondary schooling in Alberta. In 1985,
at age 17, Ms. Ismael commenced studies at Reed
College in Oregon where she lived in university resi
dence during the academic year, returning to her fam
ily home in Calgary when classes were not in session.
About one and a half years of her academic program
at Reed College were actually spent in study abroad
at The American University in Cairo, Egypt. In the
summer of 1989 she worked with a social agency in
the Gaza Strip. Following completion of her studies
at Reed College in December 1989, she spent one
academic semestre in graduate studies at the Univer
sity of California at Berkeley and thereafter from
September 1990, has been enrolled in a Doctor of
Philosophy program at Princeton University in the
United States. For her program at Princeton she has
been awarded a substantial graduate fellowship.
For her studies at Reed College she was financed
by her family and in her advanced studies at
Princeton, in addition to the fellowship from the uni
versity, she has been assisted under the Alberta Pro
vincial Student Loan Program and the Canada Stu
dent Loan Program.
With the exception of the summer of 1989 when
she worked in the Gaza Strip, she has returned to her
family home in Calgary each summer and at the
breaks between college terms. In that family home
she has her own room, and all of her personal belong
ings, except those required during her periods of aca
demic study, have remained at her family home.
Other indicia of continuing ties with Canada while
studying abroad include the following. She continues
to be covered under the Alberta Health Plan under
her parents' registration number. She has been a
patient of a medical doctor in Calgary, and of a den
tist there, since 1981, and their services she still relies
upon as she testified she had not received medical or
dental treatment while abroad. The universities she
has studied at have recorded her home address as that
of her parents in Alberta. While at Reed College she
was twice considered as a candidate for the Alberta
Rhodes Scholarship. She has had a driver's licence
from Alberta since 1984, and has had no other driv
er's licence. Other evidence provided at the hearing,
and apparently not available to the Citizenship Court
judge, related to certificates for provincial student
loans and the Canada Student Loan Program for the
years 1990 to 1991 and 1991 to 1992, to the fact that
she has maintained bank accounts in Calgary since
August 1990 when she first had resources of her own
and was no longer dependent entirely on family
resources, and to the letter from the appellant indicat
ing completion of her course work at Princeton and
her return to reside with her parents in Calgary. There
she planned to complete much of her doctoral disser
tation with only periodic visits to the university at
Princeton.
While all these indicia may differ somewhat from
those looked at in a number of other cases they are, in
my view, the sorts of ties that a person at the age and
in the circumstances of the appellant as a continuing
student would be expected to demonstrate as ties with
this country while abroad. Two other factors are of
significance. The first is the pattern of the appellant's
return to the family home in Alberta when she was
not engaged in class studies requiring her attendance
at the universities abroad where she has studied. The
second is the continuing presence in Canada of all of
her immediate family, among whom she testified
there are very close ties. Her father has been a Cana-
dian citizen since 1978 and her mother and sister
were granted citizenship upon their application, at the
same time as she applied, in 1990. Moreover, I have
no doubt from her testimony that the appellant con
siders Canada as her home and that she intends to
continue to reside in Canada on completion of her
studies abroad. She testified that she hoped, upon
completion of her Ph.D., to find opportunities to
teach in Canadian universities, and if this were not
possible she hoped to be admitted to medical school
in this country.
In all these circumstances, the only question I had
at the end of the hearing was whether, having left
Canada to study abroad while still a minor, i.e., at age
17, the appellant could be considered at that stage to
have established residence in Canada. While the Act
does not specify a particular time at which residence
must be established the application of paragraph
5(1)(c) does mean that one must have established res
idence and that it is maintained for at least three
years of the four years preceding the application for
citizenship. In their submissions counsel and the ami-
cus curiae point to paragraph 5(1)(b) of the Act
which provides that the Minister shall grant citizen
ship to any person who is 18 years of age or over,
who has made application and satisfied the residence
requirements. I am persuaded that in light of the pro
vision relating to the required age of an applicant the
fact that one is a minor is not, for purposes of the
Citizenship Act, a bar to establishing residence in
Canada. Otherwise, the effect of paragraphs 5(1)(b)
and 5(1)(c) would mean that an appellant could not
qualify for citizenship until attaining age 21. Both at
the trial and in written submissions, in addition to
those of the appellant's counsel, counsel serving as
amicus curiae submitted that the appellant in this
case had met the requirements of paragraph 5(1)(c)
having established a real and tangible form of resi
dence in this country either before commencing her
studies abroad, or at the latest when she returned in
the summer of 1986 to live with her family in Cal-
gary, at which time she was 18 years of age. Further,
it was implicitly urged that status as a resident con
tinued despite her absence abroad while undertaking
university studies.
There is no doubt that the important formative
years for the appellant were spent in Alberta, living
with her family, and completing primary and secon
dary school. There is no indication in those years, or
in the subsequent years while she has been studying
abroad, that she has considered her permanent resi
dence to be other than Canada. In all of the circum
stances I am satisfied that she established residence
in Canada prior to commencing her studies abroad
and that her absence from this country for purposes
of those studies does not mark any break in her pat
tern of residence in this country. Thus, though not
physically present in Canada for the full equivalent of
three of four years immediately prior to her applica
tion for citizenship, her absence for purposes of stud
ies does not affect her residence in this country for
purposes of paragraph 5(1)(c) of the Act. In my view
she has met the requirements of that paragraph.
The appeal of the appellant is allowed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.