T-2335-86
Secretary of State (Appellant)
v.
Ali-Yullah Nakhjavani (Respondent)
T-2336-86
Secretary of State (Appellant)
v.
Violette Nakhjavani (Respondent)
INDEXED AS: CANADA (SECRETARY OF STATE) V. NAM-MAYAN)
Trial Division, Joyal J.—Toronto, June 26;
Ottawa, August 14, 1987.
Citizenship Residency requirements — Applicant's posi
tion with religious organization dictating residence in Israel —
Establishment of place of abode in Canada coupled with intent
to return insufficient where respondents in Canada at most two
months over four years — Failure to show capacity of becom
ing part of society.
The respondents, both stateless persons, were members of the
Baha'i Faith whose duties required the husband, as a member
of the supreme governing body, and the wife, as a travelling
companion, to live in Haifa, Israel, and to travel extensively
abroad. They were granted permanent admission to Canada in
1982. Since that time, the husband had accumulated but 22
days of residency in Canada, and the wife, 60 days. In spite of
this, the Citizenship Court decided that they should be granted
citizenship on the basis that they had established permanent
residence in an apartment in the wife's brother's house in
Toronto and that they had to remain in Haifa because of their
responsibilities to the Baha'i Faith.
This is an appeal from that decision.
Held, the appeal should be allowed.
Even though case law has given an extended meaning to the
residency requirements of paragraph 5(1)(b) of the Act, the
respondents still do not meet the new two-pronged test: the
intention to remain in Canada on a permanent basis and facts
representing tangible expressions of that intention.
Citizenship was meant to be granted only to persons who
have shown they are capable of becoming a part of our society.
A place of abode and an intention to return are insufficient
when the applicants for citizenship have not in any way become
interwoven into the Canadian fabric or developed a certain
relationship with Canadians or Canadian institutions as con
templated in the Citizenship Act.
Prior to his landing in Canada, the husband was already
committed to religious duties which imposed a continuing
residence in Haifa. As for the wife, although her initial stay in
Canada lasted four weeks, her subsequent visits were essentially
by reason of her duties as a travelling companion to her
husband, requiring her attendance at religious meetings in
Ottawa and Montréal. The respondents never resided together
in Canada.
For the purposes of the Act, a landed immigrant cannot
simply adopt Canada as a flag of convenience. Canada had
done what it could for the respondents in accepting them as
landed immigrants, in issuing documents allowing them to
travel abroad and in providing them with a safe haven when
ever they wish to return.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Citizenship Act, S.C. 1974-75-76, c. 108, s. 5(1)(b) (as
am. by S.C. 1976-77, c. 52, s. 128), (4).
CASES JUDICIALLY CONSIDERED
APPLIED:
Citizenship Act (In re) and in re Papadogiorgakis,
[1978] 2 F.C. 208 (T.D.); Re Anquist (1984), 34 Alta.
L.R. (2d) 241; [1985] 1 W.W.R. 562 (F.C.T.D.); Blaha
v. Minister of Citizenship and Immigration, [19711 F.C.
521 (C.A.C.).
COUNSEL:
V. Bell for appellant.
Sheldon M. Robins for respondent.
Peter K. Large, amicus curiae.
SOLICITORS:
Deputy Attorney General of Canada for
appellant.
Sheldon M. Robins, Toronto, for respondent.
Peter K. Large, Toronto, amicus curiae.
The following are the reasons for judgment
rendered in English by
JOYAL J.: The Secretary of State appeals from a
decision of the Citizenship Court granting citizen
ship to the two respondents herein.
This Court is seized of two separate appeals, the
respondents being husband and wife. As the factu
al situation respecting both cases is substantially
the same and as both appeals were heard together,
it is proper that the reasons for judgment herein
should apply to each spouse.
The respondents are members of the Baha'i
Faith. The husband is one of nine members of the
supreme governing body, The Universal House of
Justice, located in Haifa, Israel. He has been a
member of this body since 1963, having been
elected for successive five-year terms, the last of
which expires in 1988. The wife Violette is also
involved as a travelling companion in the several
responsibilities attendant upon the promotion and
maintenance of the Baha'i Faith. Both husband
and wife travel extensively in the performance of
their various duties.
The husband is now a stateless person. He was
born an Iranian national in Haifa, Israel, in 1919.
In 1936, he moved to Iran. He stayed there twelve
years. He then spent eleven years in Uganda and
returned to Haifa in 1961. He has been exercising
his religious and administrative duties in Haifa
since that time.
The wife was also an Iranian citizen. She was
born in Tehran, lived for a while in Uganda and
subsequently joined her husband in Haifa where,
as she put it in her evidence, she has been living
ever since.
The 1979 revolution in Iran changed everything.
The couple applied for permanent admission to
Canada. Their application was granted. The wife
was landed in Canada on August 5, 1982. The
husband was landed on September 17, 1982. Their
application for Canadian citizenship was heard
before the Citizenship Court on August 26, 1986.
The citizenship record discloses that during the
intervening years, the husband had accumulated
some 22 days of residency in Canada. The wife in
turn had accumulated approximately 60 days of
residency here.
On arrival in Canada in 1982, the respondents
occupied the lower portion of a split-level residence
at 200 Green Lane in Thornhill, Ontario. The
residence is owned by the wife's brother, Mr. A.
H. Banani. The respondents did not bring any
settlers' effects with them but the space reserved
for them in the home, which consisted of a living-
room, bedroom, kitchen and bathroom, was fur
nished in due course. Both respondents and Mr.
Banani testified that throughout that time, the
lodgings were kept reserved for the exclusive use of
the respondents.
On the evidence also, the husband remained in
Canada for fifteen days after his landing on Sep-
tember 17, 1982. He returned to Canada on
August 24, 1983 and remained for seven days. The
wife, on her part, was in Canada for one month
subsequent to her landing on August 5, 1982. She
returned to Canada for two weeks in 1984 and a
further two weeks in 1985.
The appeal before me is to decide whether or
not the respondents meet the residency require
ments under paragraph 5(1)(b) of the Citizenship
Act [S.C. 1974-75-76, c. 108 (as am. by S.C.
1976-77, c. 52, s. 128)] and which reads as follows:
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, has not ceased since such admission to be a
permanent resident pursuant to section 24 of the Immigra
tion Act, /976, 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 follow
ing manner:
(i) for every day during which he was resident in Canada
before his lawful admission to Canada for permanent
residence he shall be deemed to have accumulated one-half
of a day of residence, ...
On their application for citizenship, Judge
Maria Sgro of the Court of Canadian Citizenship
ruled that the respondents had met the residency
test of section 5 of the Act. In her judgment of
August 26, 1986, Her Honour stated as follows:
These applicants established and maintained their residence
in Canada. I consider that they have provided proof of resi
dence, therefore, I recommend a grant of citizenship under
Section 5(1)(b).
Mr. & Mrs. NAKHJAVANI are members of the BAHA'I Faith.
Mr. NAKHJAVANI is one of nine members of the supreme
governing body, The Universal House of Justice, located in
Haifa, Israel. He has been re-elected to this position four times
since 1968, the length of each term being 5-years. This last
term will expire on April 21, 1988.
Because of the spiritual and executive responsibilities both
applicants had to return to Haifa shortly after they received
their landed immigrant status, however, they centralized their
ordinary mode of living be [sic] residing in, and by keeping a
self-contained apartment. In it, they have their furniture, kitch
en utensils, books and household items ....
It is to this apartment they return when their responsibilities
of the BAHA'I World Centre permit.
On July 3, 1973, Mr. A.H. Banani, the applicants (sic)
brother-in-law, acting as a trustee, bought a house for Mr. &
Mrs. NAKHJAVANI located at 64 Castlefield Avenue, Toronto.
Ontario. This property, at the moment, is rented, but it is the
applicants' intention to live in it upon their return to Canada
Because of this sacred obligation to serve in this administra
tive body of "Faith", the applicants were unable to spend more
time as "physically present" in Canada, but they consider this
country as their home to which they will return as soon as
possible.
The Secretary of State appeals on the ground
that the Citizenship Court erred in law and in fact
by approving the respondents' application for citi
zenship before they had accumulated at least three
years of residence in Canada as provided in para
graph 5(1)(b) of the Citizenship Act and therefore
the Citizenship Court Judge had exceeded her
jurisdiction in approving the application.
It appears clear from the Citizenship Court
Judge's comments that two material facts prompt
ed her to conclude that the respondents' residency
requirements had been met, namely that they had
established a permanent residence in Canada in
the home of Mr. Banani and that the husband's
obligations to his Baha'i Faith made it imperative
for him to remain in Haifa on a continuing basis.
It is conceded by the appellant that jurispru
dence has given an extended meaning to the resi
dency provisions under paragraph 5(1)(b) of the
Citizenship Act. It was Citizenship Act (In re) and
in re Papadogiorgakis, [1978] 2 F.C. 208 (T.D.),
that Thurlow A.C.J., as he then was, after making
a detailed analysis of the statutory requirements
and of the judicial interpretations given from time
to time to the word "residence", concluded that
the concept was not strictly limited to actual physi
cal presence in a particular locality. It could
include as well a situation where a person has a
place of abode to demonstrate the reality of his
residing there even though he might be away from
it for part of the time. His Lordship, at page 214,
had this to say:
A person with an established home of his own in which he
lives does not cease to be resident there when he leaves it for a
temporary purpose whether on business or vacation or even tc
pursue a course of study. The fact of his family remaining there
while he is away may lend support for the conclusion that he
has not ceased to reside there. The conlusion may be reached,
as well, even though the absence may be more or less lengthy.
It is also enhanced if he returns there frequently when the
opportunity to do so arises. It is, as Rand J. appears to me to be
saying in the passage I have read, "chiefly a matter of the
degree to which a person in mind and fact settles into or
maintains or centralizes his ordinary mode of living with its
accessories in social relations, interests and conveniences at or
in the place in question".
The Papadogiorgakis case did not necessarily
short-circuit the residency requirements of the
Canadian Citizenship Act but it did remove it
from the numbers-crunching game of figuring out
whether or not any particular applicant had physi
cally resided in Canada for three-quarters of the
time during a four-year period. It imposed on the
courts an enquiry covering both intention and fact,
neither of these elements being considered deter-
minative by itself. A self-serving declaration of
intention therefore might have little weight unless
it were buttressed by objective facts representing
tangible expressions of that intention i.e. owner
ship of residential property, car registration, bank
accounts, club or association memberships, and
particularly, the continuing presence in Canada of
immediate family members and to whom an
individual might return from time to time even for
only brief periods of time.
Similarly, objective facts by themselves might
not be conclusive if they only indicated some kind
of presence in Canada but where a contrary inten
tion to make of Canada one's place of residence
became self-evident. An example of this would be
an applicant who is landed in Canada, rents space
with a bed in it, opens an agency, appoints some
one to run it, and then returns to his country of
origin to live with family and friends and to carry
on his main business as usual. If facts such as
these were to come out of an enquiry, it would be
logical to conclude that the applicant has not even
met the prime residency test which the statute
imposes. Such a person might be a perfectly good
landed immigrant but it would not entitle him to
citizenship four years later.
I should observe that in cases where prolonged
absences from Canada are put to the test, a dis
tinction must always be kept in mind between the
status conferred to a landed immigrant under the
Immigration Act, 1976 [S.C. 1976-77, c. 52] and
the granting of citizenship under the Citizenship
Act. A landed immigrant is always entitled to
re-admission to Canada so long as the provisions of
section 24 of the Immigration Act, 1976 are
respected. The grant of citizenship, however, is
something else. It confers special status to a
person, a status recognized and respected through
out the world. It attaches not only to the person
but to his progeny as well. It bestows a particular
identity which is perpetual and indefeasible.
Mr. Justice Muldoon refers to this matter in his
careful analysis of the law in Re Anquist (1984),
34 Alta. L.R. (2d) 241; [1985] 1 W.W.R. 562
(F.C.T.D.), where he quotes from Mr. Justice
Pratte's judgment in Blaha v. Minister of Citizen
ship and Immigration, [1971] F.C. 521 (C.A.C.),
as follows, at page 525:
Parliament wishes .. . to ensure that Canadian
citizenship is granted only to persons who have
shown they are capable of becoming a part of our
society.
These words were spoken before the 1976
amendments made it possible to apply more liberal
residency rules. Nevertheless, Muldoon J. could
affirm that [at pages 249 Alta. L.R.; 571-572
W.W.R.]:
The spirit of the Act has not been changed by the subsequent
amendment even though the means of establishing residence
have been broadened by reference to s. 24 of the Immigration
Act, 1976. As Pratte J. indicated, Parliament intended that the
applicant for citizenship demonstrate that he or she has actual
ly resided among Canadians and in effect thrown in his or her
lot with us in some Canadian community.
The thrust of the respondents' argument before
me is that the establishment of a permanent resi
dence in part of Mr. Banani's house in Thornhill
constitutes the type of residency falling within the
terms of paragraph 5(1)(b) of the Citizenship Act.
Coupled with an intention to return as evidenced
by the issue of returning resident permits, the two
elements of fact and intention meet the test pro
vided in that section. In this respect, I must again
quote Muldoon J. in the Anquist case (supra)
where he says at [pages 249 Alta. L.R.; 572
W.W.R.]:
If the provisions of s. 5(1)(b) of the Citizenship Act required
no more than compliance with the qualifying exception of s.
24(2) of the Immigration Act, then clearly the appeal would be
allowed. But those provisions do require more. As Addy J. said
in the Stafford case ((1980), 97 D.L.R. (3d) 499 at pages 500
and 501), they require more than "a mere intent to return".
An intent to return is easily established when
the respondents before me must indeed return to
Canada sooner or later. The only travel document
they have is a Canadian Certificate of Identity
renewable every year. They also have residency
permits in Israel while the husband is engaged
there in his religious and administrative duties but
the stability of their status is only assured by their
ability to return to Canada.
I would not agree that the simple fact of a place
of abode in Canada and an intention to return to it
are sufficient to fit the respondents within the
parameters of paragraph 5(1) (b) of the Act even if
that provision were construed in a most flexible
manner. I fail to see where in the period of 1982-
1986, the respondents became in any way inter
woven into the Canadian fabric or otherwise devel
oped the kind of relationship with Canadians or
their institutions within the meaning contemplated
by Parliament in its statute. Of significance in this
respect is that prior to the date of the husband's
landing, he was already committed to his duties
with the Baha'i Faith, duties which evidently
imposed on him a continuing residence in Haifa. It
cannot be said therefore that when he landed in
Canada, he had the intention of establishing a new
residence here. The jurisprudence is clear that
before the length or tenure of residency can be
subjected to the residency test under the Act, an
applicant must first of all establish that he has
taken up residence in Canada. A stay of two weeks
in September 1982 and of one week in August
1983, which appears on the record, might be
regarded as a technical fulfillment of that particu
lar rule but, in my view, it falls short of the
substantial requirements which the statute
imposes.
As far as the wife is concerned, it is true that
her initial stay in Canada lasted four weeks. I
conclude from her evidence, however, that her two
weeks in Canada in 1984 and a further two weeks
in 1985 were substantially by reason of her duties
as a travelling companion which required her
attendance at Baha'i Faith meetings in Ottawa
and Montréal.
It would also appear from the evidence on
record that at no time did husband ans wife actu
ally reside together in Canada. This is not to
suggest that marital cohabitation in Canada is
necessarily a prerequisite to establishing a Canadi-
an residence under citizenship rules, but it does
indicate, in my view, that the pied-Ã -terre in
Thornhill, Ontario, cannot be said to rest on firm
ground.
If one should attempt to list the various indicia
to determine whether or not an applicant complies
with the intended meaning of the residency rules
under the Citizenship Act, the result would be an
exhausting and exhaustive endeavour. On the facts
before me, no such indicia, apart from the
respondents' right to occupy premises in Thornhill,
or anywhere else in Canada for that matter,
emerge. For purposes of the Citizenship Act, and
of the statutory requirements under section 5
thereof, a landed immigrant cannot simply adopt
Canada as a flag of convenience.
In concluding that the Secretary of State's
appeals should be allowed, I should not overlook
other elements of the issues before me. It is true
that husband and wife, both Iranian nationals, are
now stateless persons. They have no passports.
Their duties of office require them to live in Haifa,
Israel. According to their evidence, they are well-
known there and have experienced no difficulties
in obtaining renewals of their Israel residency
permits. They are also well-known to the Canadian
mission in Israel and their Canadian Certificates
of Identity have also been renewed without dif
ficulty. The duties of both husband and wife
require them to travel extensively and their
Canadian travel document has enabled them to
visit the United Kingdom, Cypress, France, West
Germany, the Benelux countries, the United
States, Switzerland and presumably other coun
tries as well.
The husband did suggest that a Certificate of
Identity, as against a passport, was inconvenient.
It has to be renewed every year instead of every
five years. The wife also testified that she suffered
hassles from time to time when entering a particu
lar country, a risk which she felt would be elimi
nated if she were in possession of a Canadian
passport. Admittedly, many of these things are
inconvenient but difficulties with visas or entry
permits are normal for people like the respondents
who travel extensively. They are even normal for
people who travel extensively on valid Canadian
passports. These incidents should be no grounds to
change the law in the respondents' favour.
There is also evidence of the husband with
respect to his obligations under Baha'i Faith. An
election to The Universal House of Justice carries
with it a sacred duty to carry out the responsibili
ties of his office. This requires continuing resi
dence in Haifa in a house which the Faith supplies
for him. If re-elected next year for another five-
year term, he would feel duty-bound to continue
residing in Haifa and husband and wife would be
unable to fulfill Canadian residency rules to obtain
their citizenship.
The Court may very well understand this pre
dicament and express sympathy for the people
facing it. Nevertheless, as was succinctly pointed
out by the amicus curiae at the hearing, Canada
has already done what it can for the respondents in
accepting them as landed immigrants, in issuing
travel documents which do not hinder their many
excursions abroad and in providing them with a
safe haven whenever they wish to return.
Admittedly, events might occur which would
change the current situation respecting the
respondents and create the kind of special or
unusual hardship referred to in subsection 5(4) of
the Act and where a recommendation for the
Governor in Council intervention might be made.
Such a situation, however, has yet to develop and
it would be premature on my part to make such a
recommendation at this time. Of course, this does
not preclude other representations being made to
the Governor in Council which might be based on
further fact or evidence which is not before this
Court.
The appeals by the Secretary of State are
allowed and the orders of the Citizenship Court
rescinded. There are no costs in these proceedings.
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.