Aviles and Garcia, Re, (1994) 89 F.T.R. 76 (TD)

• Judge: Rothstein, J.
• Court: Federal Court (Canada)
• Case Date: December 19, 1994
• Jurisdiction: Canada (Federal)
• Citations: (1994), 89 F.T.R. 76 (TD)

Aviles, Re (1994), 89 F.T.R. 76 (TD)

MLB headnote and full text

In The Matter of the Citizenship Act, R.S.C. 1985, c. C-29;

And In The Matter of appeals from the two decisions of a Citizenship Judge;

And In the Matter of Roberto Antonio Garcia Aviles;

And In The Matter of Soraya L. Chamorro De Garcia.

(T-870-94; T-871-94)

Indexed As: Aviles and Garcia, Re

Federal Court of Canada

Trial Division

Rothstein, J.

December 19, 1994.

Summary:

Aviles and his wife were denied citizenship on the basis that they failed to meet the residency requirements of s. 5(1)(c) of the Citizenship Act. They appealed.

The Federal Court of Canada, Trial Division, allowed the appeal and held that they should be granted citizenship.

Aliens - Topic 2525

Naturalization - Qualifications - Residence - Aviles and his wife arrived in Canada in 1990 from Nicaragua - Aviles was unemployed for 15 months before obtaining employment with a Canadian organization assisting poor and underprivileged persons in other countries - His employer required him to work in Nicaragua until his tour of duty was finished in 1996 - Aviles and his wife were denied citizenship for noncompliance with the residency requirements of s. 5(1)(c) of the Citizenship Act - Aviles purchased a house in Winnipeg, a child and relative lived there, his income was deposited in his Canadian bank account, etc. - Had he remained in Canada, unemployed and on social assistance, he would have met the citizenship requirements - The Federal Court of Canada, Trial Division, stated that Aviles and his family intended to come to Canada and remain here - It would be perverse to penalize them solely because his Canadian employer required that he work outside of Canada - The court held that citizenship should be granted.

Cases Noticed:

Chan (A.C.W.), Re (1993), 70 F.T.R. 171 (T.D.), refd to. [para. 8].

Kleifges, Re, [1978] 1 F.C. 734 (T.D.), refd to. [para. 8].

Statutes Noticed:

Citizenship Act, R.S.C. 1985, c. C-29, sect. 5(1)(c) [para. 3].

Counsel:

Waldy Derksen, for the applicants;

Alana Hefferton, amicus curiae.

Solicitors of Record:

Derksen & Co., Winnipeg, Manitoba, for the applicants;

George Thomson, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This appeal was heard on December 19, 1994, at Winnipeg, Manitoba, before Rothstein, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment orally on December 19, 1994.