Canada (Minister of Citizenship and Immigration) v. Jasmine

Canada (Minister of Citizenship and Immigration) v. Jasmine
Court (s) Database
Federal Court Decisions
Date
2006-08-31
Neutral citation
2006 FC 1048
File numbers
T-22-06
Decision Content
Date: 20060831
Docket: T-22-06
Citation: 2006 FC 1048
Ottawa, Ontario, August 31, 2006
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
HOSNE ARA JASMINE
Respondent
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.
“James W. O’Reilly”
Judge
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
REASONS FOR JUDGMENT
AND JDUGMENT: O’REILLY J.
DATED: August 31, 2006
APPEARANCES:
Ms. Liliane Bantourakis
FOR THE APPLICANT
Jawant Singh Mangat
FOR THE RESPONDENT
SOLICITORS OF RECORD:
JOHN H. SIMS, Q.C.
Department of Justice
Toronto, ON
FOR THE APPLICANT
MANGAT & SEMOTIUK
Toronto, ON
FOR THE RESPONDENT