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T-3044-77
In re the Citizenship Act and in re Habib Khoury (Appellant)
Trial Division, Walsh J.—Montreal, January 10; Ottawa, January 17, 1978.
Citizenship and immigration — Residency — Appeal from dismissal of application for citizenship for want of sufficient length of residency — Although abroad for part of three-year period, salary and taxes paid in Canada, and intention to return — Interpretation of "residence" within s. 5(1)(b)(ii), and whether or not it can be coloured to mean "domicile" — Citizenship Act, S.C. 1974-75-76, c. 108, s. 5(1)(b)(ii) — Canadian Citizenship Act, R.S.C. 1970, c. C-19, s. 2.
Appellant's application for citizenship was denied by the Citizenship Court because he had not been resident in Canada for a total duration of three years of the four-year period immediately preceding his application, as required by section 5(1)(b)(ii) of the Citizenship Act. Appellant, although he had been working abroad under a CIDA contract, was paid and taxed in Canada, and fully intended to return. The interpreta tion of the word "residence" within the meaning of section 5(1)(b)(ii)—and whether it can be coloured to mean "domi- cile"—is in issue in this appeal.
Held, the appeal is dismissed. Although appellant perhaps considered himself a permanent resident of Canada following his admission, he cannot be held to have been a resident within the meaning of this section during the periods when he was actually residing abroad because of his business assignments. There is no justification for interpreting "residence" as "domi- cile". The Citizenship Judge did consider the possibility of recommending ministerial discretion. Waiver of the residence requirement for "any person under disability", however, is not applicable. The only avenue open to the appellant is a direction by the Governor in Council to the Minister to grant citizenship "In order to alleviate cases of special and unusual hardship or to reward services of an exceptional value to Canada".
In re Canadian Citizenship Act and in re Laprade [1974] 1 F.C. 196, followed. Blaha v. Minister of Citizenship & Immigration [1971] F.C. 521, followed.
APPEAL. COUNSEL:
Habib Khoury appearing on his own behalf. Pierre Paquette, amicus curiae.
The following are the reasons for judgment rendered in English by
WALSH J.: This is an appeal from a decision of the Citizenship Court dated June 23, 1977, follow ing a hearing on June 20, 1977, of appellant's application for Canadian citizenship on the basis of section 5(1)(b)(ii) of the Act' requiring three years of residence in Canada during the four-year period preceding the application which was made on March, 16, 1977. The- decision points out that the presiding judge also considered the possibility of recommending the exercise of ministerial discre tion on compassionate grounds by virtue of sec tions 5(3) and 5(4) of the Act but that the law gave him no latitude L to do so.
Appellant was present at the hearing and Pierre Paquette acted as amicus curiae.
At the outset it may be said that this is a very sympathetic case and that the amicus curiae him self did his best to find a way in which the appeal could be allowed. The appellant arrived in Canada on September 9, 1970 as a landed immigrant and has been working for Canadian employers notably CIDA and pursuing graduate studies in Canada since that time. As his application and evidence given by him at the: hearing ofthe appeal discloses he was sent by his employers Cartier Engineering on behalf of CIDA on an assignment to Africa on July 20, 1974, returning seven months later on February 10, 1975. On July 17, 1975, he was sent on a further assignment to Africa returning one year later on July 17, 1976. During these assign ments overseas he received his salary, paid by deposit in Canada with the Bank of Montreal, and Canadian income tax and other deductions were made and tax returns filed in Canada despite his absence. His absences totalled 19 months during the four-year period preceding his application on Marchi 6, 1977, and hence he was only in Canada for 29 months during the said -period instead of - the 36 months required by section 5(1)(b)(ii) which reads as follows:
S.C. 1974-75-76, c. 108.
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, and has, within the four years immediately preced ing the date of his application, accumulated at least three years of residence in Canada calculated in the following manner:
(ii) for every day during which he was resident in Canada after his lawful admission to Canada for permanent resi dence he shall be deemed to have accumulated one day of residence;
The Act does not define residence nor domicile. It was pointed out by the amicus curiae that under the former Act 2 there is _ a definition of "place of domicile" in section 2 as follows:
"place of domicile" means the place in which a person has his home or in which he resides or to which he returns as his place of permanent abode and does not mean a place in which he stays for a mere special or temporary purpose;
and that perhaps this could be applied in the present case in the absence of any definition in the present Act and that appellant could be considered as having resided in Canada throughout the four- year period despite his absences while working for CIDA as his salary and income tax were paid in Canada and he was absent only on working assign ments with intention of returning to his residence here. This might very well be the case if the question was one of determining his domicile; it might very well be concluded that although he is not yet a Canadian citizen he has acquired a Canadian domicile and intends to make Canada his permanent abode. However unfortunately it is not the concept of domicile which we are called upon to determine but the meaning of the words "residence in Canada" as used in section 5(1)(b)(ii) of the new Act under which this application was and had to be made. With regret I can find no justification for interpreting "resi- dence" as "domicile", and although appellant did perhaps consider himself as a permanent resident of Canada following his admission, certainly he cannot be held to have been a. resident within the meaning of this section during the periods when he was in actual fact residing abroad as a result of his business assignments. Even under the provisions of the old Act I was forced to reach the same conclu sion in In re Canadian Citizenship Act and in re
2 R.S.C. 1970, c. C-19.
Laprade 3 . In that case I had occasion to refer to the decision of Pratte J. in the case of Blaha v. Minister of Citizenship & Immigration 4 which was subsequently followed by Collier J. in In re Goldston 5 . In the Blaha case Pratte J. stated at pages 524-525:
As the Act does not define the words "reside" and "residence", we must arrive,(at their meaning by reference to the ordinary connotation, with the single obvious qualification that they cannot be given a meaning which is identical to that given by Parliament to the expression "place of domicile".
In my opinion a person is resident in Canada within the meaning of the Canadian Citizenship Act only if he is physical ly present (at least usually) on Canadian territory. I feel that this interpretation is in keeping with the spirit of the Act, which seems to require of the foreigner wishing to acquire Canadian citizenship, not only that he possess certain civic and moral qualifications, and intends to reside in Canada on a permanent basis, but also that he has actually lived in Canada for an appreciable time. Parliament wishes- by this means to ensure that Canadian citizenship is granted only to persons who have shown they are capable of becoming a part of our society.
That he is not a Canadian citizen is a serious handicap to appellant in connection with employ ment opportunities. He testified that in the two fields for which he possesses special qualifications, namely biology and agriculture, it is necessary for him to be a member of certain professional asso ciations involved as a condition of employment, and that as a condition of such membership he has to be a, Canadian citizen. This evidence was con firmed in part by a letter he produced dated July 28, 1977, from Pluritec Consultants which indi cates that they expect at an early date to have work for him in Africa as an entomologist. The letter concludes:
[TRANSLATION] For this purpose it will be appreciated if Mr. H. T. Khoury can furnish us with a certificate of Canadian citizenship.
The fact that his problem is looked upon sympa thetically by Ministers of the Crown also appears from two letters which were, produced, the first being a letter from the Honourable Jeanne Sauvé,
3 [1974] I F.C. 196.
4 [1971] F.C. 521.
5 [1972] F.C. 559.
Minister of Communications, to the Honourable John Roberts, Secretary of State, a copy of this letter being sent by her to. appellant. In her letter she sets out his problem stating that he has appealed the decision of the Citizenship Court. She concludes:
[TRANSLATION] I would appreciate it my dear colleague if you would study this request attentively because I believe that for compassionate grounds Mr. Khoury should be granted his citizenship. He must leave again soon for CIDA for several months and all the proceedings will have to be recommenced when he returns if he has not succeeded in his appeal.
In reply to this letter the Honourable Mr. Roberts wrote on October 28, 1977 stating that as the result of the appeal to the Federal Court he cannot of course make any decision until it has been decided.
As I have already indicated the Citizenship Judge took into consideration the possibility of recommending the exercise of ministerial discre tion on compassionate grounds pursuant to sec tions 5(3) and 5(4) of the Act. Under section 5(3)(b) the residence requirement of section 5(1)(b) may be waived but this appears to only apply "in a case of any person under a disability" which would not be the case of appellant. Section 5(4) provides that the Governor in Council may direct the Minister to grant citizenship "In order to alleviate cases of - special and unusual hardship or to reward services of an exceptional value to Canada". This would appear to be the only avenue open to appellant and it is by no means certain whether such an exceptional step would be taken in his case. Under the former Act section 10(6)(b) provided that any period during which an appli cant for a certificate of citizenship "was employed outside of Canada in the public service of Canada or of a province, other than as a locally engaged person" would be treated as equivalent to a period of residence in Canada for the purposes of comply ing with the residential requirements. Quite aside from the fact that it would have to be determined whether appellant's employment by CIDA could be considered as employment "in the public service of Canada" which is doubtful, there is no similar provision in the present Act and therefore appar ently periods of service outside the country do not count in the calculation of residence requirements.
With great regret therefore I find that the deci sion appealed from is a correct interpretation of the law and that the appeal must be dismissed.
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