CITIZENSHIP AND IMMIGRATION |
Status in Canada |
Citizens |
Canada (Minister of Citizenship and Immigration) v. Alder
T-226-01
2002 FCT 227, Kelen J.
1/3/02
14 pp.
Appeal from grant of citizenship under Citizenship Act, s. 5(1)--Respondent citizen of South Africa, entered Canada in August 1997 as permanent resident, applied for Canadian citizenship in August 2000--In four years prior to application for citizenship, respondent absent from Canada for 961 days, present 149 days--Absences explained by respondent as being due to business--During respondent's absences, husband, daughter accompanied her to South Africa--Standard of review of Citizenship Judge's decision with regard to selection, application of residency test correctness--Under Citizenship Act, s. 5(1)(c), respondent must have accumulated at least three years (1095 days) of residence in Canada within four years preceding date of application for citizenship-- Whether Citizenship Judge erred in determining respondent failed to comply with s. 5(1)(c)--Appellant submitting Citizenship Judge erred in law, in fact in failing to determine respondent had not centralized mode of living in Canada-- Respondent had not centralized existence in Canada during 27- day-period before leaving Canada for first absence--As in Koo (Re), [1993] 1 F.C. 286 (T.D.), pattern of respondent's physical presences in Canada more consistent with visits to country than demonstrating return to place where one "regularly, normally and customarily lives"--Respondent had intention to establish Canada as place of residence, but has not established residence--Joint purchase of house cannot satisfy residency test set out by Dubé J. in Banerjee (Re) (1994), 25 Imm. L.R. (2d) 235 (F.C.T.D.)--Respondent did not take possession of residence in Canada, centralize home in Canada prior to leaving Canada for extended periods--Citizenship Judge erred in applying "centralized existence" test in Koo, "quality of attachment" test in Banerjee--Respondent had not "centralized her existence" in Canada prior to first absence, subsequent absences--"Quality of attachment" to South Africa outweighed "quality of attachment" to Canada--Appeal allowed--Citizenship Act, R.S.C., 1985, c. C-29, s. 5 (as am. by R.S.C., 1985 (3rd Supp.), c. 44, s. 1; S.C. 1992, c. 21, s. 7; 2000, c. 12, s. 75).