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C.A.C. 61/75
In re the Canadian Citizenship Act and in re an appeal from a decision of the Canadian Citizen ship Court and in re Abul Fazal Muhammad
Citizenship Appeal Court, Heald J.—Ottawa, December 17, 1975.
Citizenship and immigration—Appeal—Residence in Cana- da—Whether absences from Canada affecting residence in Canada.
In holding that absences from Canada affected appellant's residence status, the Citizenship Judge interpreted the Blaha case to require actual physical presence in Canada at all times, omitting the important qualification of the words "at least usually." Because appellant was briefly absent from Canada on several instances, he cannot be said to have given up his Canadian residence. To reside in Canada for a period of years does not mean that every minute of that period must be spent in Canada.
Blaha v. Minister of Citizenship and Immigration [1971] F.C. 521; In re Canadian Citizenship Act and in re Laprade [1974] 1 F.C. 196; In re Goldston [1972] F.C. 559, applied.
APPEAL from Canadian Citizenship Court. COUNSEL:
D. W. Scott for appellant.
P. D. Beseau, amicus curiae.
The following are the reasons for judgment delivered orally in English by
HEALD J.: I have read the Blaha case and I have also read the other cases; and I am prepared to give judgment. I will read it orally.
This is an appeal from a decision of the Canadi- an Citizenship Court dated August 29th, 1975, wherein that Court declined to recommend to the Secretary of State that the appellant be granted a certificate of Canadian citizenship.
The appellant was lawfully admitted to Canada for permanent residence on May 26th, 1972. Pre vious thereto, from September 27th, 1967, he was in Canada as a non-immigrant. The appellant is a research biologist.
The appellant was absent from Canada while a non-immigrant on the following dates:
1. July 13th, 1968—one day; same day return.
2. August 31st, 1968—one day; same day return.
3. August 24th to September 6th, 1969—thir- teen days, expenses paid by C.I.D.A. to attend the International Botanical Congress in Seattle, Washington.
4. June 27th to June 30th, 1971—three days, Pittsburgh, Pennsylvania, to attend a Forest Products Research Society Meeting.
5. August 26th to September 1st, 1970—seven day camping trip in the U.S.A.
6. August 25th, 1971—one day; same day return.
The appellant participated in the two scientific congresses and delivered a scientific paper at one of them.
The sole issue in this appeal is whether the above absences from Canada by the appellant affect his "residence in Canada" during that period.
The learned Citizenship Judge held that said absences did affect his residence status and reject ed the appellant's application. The learned Judge based his decision on a statement by Mr. Justice Pratte of this Court, in the case of Blaha v. Minister of Citizenship and Immigration [19711 F.C. 521, and interpreted said statement to require actual physical presence in Canada at all times.
In quoting from the judgment of Pratte J. at page 524, the learned Citizenship Judge omitted what I consider to be an important qualification placed in parenthesis by Mr. Justice Pratte. The statement of Mr. Justice Pratte reads as follows:
In my opinion, a person is resident in Canada, within the meaning of the Canadian Citizenship Act, only if he is physi cally present (at least usually) .. .
and I underline the word "usually" ... on Canadian territory.
The learned Citizenship Judge omitted in quot ing Mr. Justice Pratte the words: "at least usually".
It is my view that said qualification covers a factual situation, like the present one. Because the
appellant went to the United States for dinner or to shop or to mail a letter, as Mr. Scott has pointed out, or on a short camping trip or to attend a convention, surely he cannot be said to have given up his Canadian residence. To reside in Canada for a period of years does not mean that every minute of that period must be spent in Canada.
The factual situation here present is quite differ ent from that of Blaha, referred to above, where the applicant spent over four years as a student in the United States, returning to Canada only during the summer months of each year.
The facts here also are quite different from those in the Laprade case, [1974] 1 F.C. 196, where the applicant had been in Bangladesh for some seven years prior to his application for citi zenship; and from those in the Goldston case, [1972] F.C. 559, where the applicant was only physically in Canada for two to three months of the preceding eighteen month period.
I agree with the definition of residence in Canada given by Mr. Justice Pratte in the Blaha case and, find on the facts in the case at bar, the appellant has clearly established during the period in question that he has been usually physically present on Canadian territory.
For the foregoing reasons the appeal is allowed, and the decision of the Canadian Citizenship Judge is reversed.
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