Date: 20101209
Docket: T-2-10
Citation: 2010 FC 1260
[UNREVISED CERTIFIED ENGLISH TRANSLATION]
Ottawa, Ontario, December 9, 2010
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
MARIAM SHUBEILAT
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
In its interpretation of
the concept of residence set out in paragraph 5(1)(c) of the Citizenship
Act, R.S., 1985, c. C-29 (Act), and of the case law, the Court identified
three different approaches that can be taken by a citizenship judge:
[10] This
Court’s interpretation of “residence” can be grouped into three categories. The
first views it as actual, physical presence in Canada for a total of three years,
calculated on the basis of a strict counting of days (Pourghasemi (Re),
[1993] F.C.J. No. 232 (QL) (T.D.)). A less
stringent reading of the residence requirement recognizes that a person can be
resident in Canada, even while temporarily absent, so long as he or she
maintains a strong attachment to Canada (Antonios E. Papadogiorgakis
(Re), [1978] 2 F.C. 208 (T.D.). A third
interpretation, similar to the second, defines residence as the place where
one “regularly, normally or customarily lives” or has “centralized his or her
mode of existence” (Koo (Re), [1993] 1 F.C. 286 (T.D.) at
para. 10).
[11] I essentially agree with Justice
James O’Reilly in Nandre, above, at paragraph 11 that the first
test is a test of physical presence, while the other two tests involve a more
qualitative assessment:
Clearly, the Act
can be interpreted two ways, one requiring physical presence in Canada for three years out of four, and
another requiring less than that so long as the applicant’s connection to Canada is strong. The first is a physical
test and the second is a qualitative test.
(Emphasis added.)
(Mizani v. Canada (Minister of Citizenship and Immigration), 2007 FC 698, 158 A.C.W.S. (3d) 879).
[2]
It is also trite law
that a citizenship judges may apply any of these three approaches, as he or she
sees fit:
[12] It has
also been recognized that any of these three tests may be applied by a
Citizenship Judge in making a citizenship determination (Lam v. Canada
(Minister of Citizenship and Immigration), [1999]
F.C.J. No. 410 (T.D.) (QL)). For instance, in Hsu v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 579,
[2001] F.C.J. No. 862 (QL), Justice Elizabeth Heneghan at paragraph 4
concludes that any of the three tests may be applied in making a residency
determination:
The case law on
citizenship appeals has clearly established that there are three legal tests
which are available to determine whether an applicant has established residence
within the requirements of the Citizenship Act (…) a Citizenship Judge may
adopt either the strict count of days, consideration of the quality of
residence or, analysis of the centralization of an applicant’s mode of
existence in this country.
[Citations
omitted]
While a Citizenship
Judge may choose to rely on any one of the three tests, it is not open to him
or her to “blend” the tests (Tulupnikov, above, at para. 16).
(Emphasis added.)
(Mizani, above).
II. Judicial proceeding
[3]
This is an appeal under
subsection 14(5) of the Act against the decision dated September 8, 2009, of the citizenship judge rejecting the applicant’s
citizenship application.
III. Facts
[4]
The applicant, Mariam
Shubeilat, is a citizen of Jordan.
[5]
On June 6, 2001, the
applicant arrived in Canada and was granted permanent resident status.
[6]
On November 28, 2005, the applicant submitted a citizenship application.
In that application, she stated that she had been outside Canada for 362 days during the relevant period.
[7]
On October 23,
2006, the applicant met with a citizenship officer and was asked to fill out a residence
questionnaire and provide certain documents.
[8]
On August 14, 2006, the applicant filed the completed residence
questionnaire and an evidentiary record.
[9]
On March 29, 2007,
a citizenship officer referred the case to a citizenship judge.
[10]
On August 3, 2009, the applicant was summoned to an interview with a
citizenship judge scheduled for August 17, 2009.
[11]
On September 8, 2009, the citizenship judge refused the applicant’s
citizenship application:
Having reviewed all of the
documentation submitted by the applicant, having personally interviewed her and
for the reasons below, I am not satisfied, on a balance of probabilities that
the information provided by the applicant accurately reflects the number of
days that the applicant was, in fact, physically present in Canada.
…
DECISION
The applicant has the burden of
establishing, on a balance of probabilities, that she satisfies the residency
requirements pursuant to section 5(1)(c) of the Act – refer to Mr. Justice de
Montigny in Yu Ll v. MCI, T-1222-05, March 17, 2006 and Mr. Justice Gibson in
his reasons for order in Maheswary Maharatnam 2000 03 28, T-668-99.
On balance, all of the above does
not satisfy me that the applicant meets the residency requirements under
s.5(1)(c) of the Act. See Mr. Justice Muldoon in Re
Pourghasemi.
(Citizenship Record: Reasons, pp. 13-14).
IV. Issue
[12]
Did the citizenship
judge err in refusing the applicant’s citizenship application on the basis that
it did not meet the requirements of paragraph 5(1)(c) of the Act?
V. Analysis
[13]
The Court agrees with
the respondent’s position. The applicant has not shown that the citizenship
judge made an error in fact or in law which could be reviewed by this Court.
[14]
The standard of review
applicable to decisions of citizenship judges is reasonableness:
It is now settled
law that the standard of review applicable to the decisions of Citizenship
Judges is that of reasonableness: see, for example, Zhang v. Canada
(Citizenship and Immigration), 2008 FC 483; Chen v. Canada
(Citizenship and Immigration), 2007 FC 1140. Whether dealing with questions
of mixed fact and law, as when applying one of the jurisprudential tests of the
concept of residency to the particular facts of the case, or purely factual
questions, as when computing days of absence, Dunsmuir v. New
Brunswick (2008 SCC 9) instructs
us that the reviewing court should show deference and resist substituting its
own view for that of the Citizenship Judge. To the extent that the impugned
decision is intelligible and justified and can be considered a defensible
outcome in respect of the facts and the law, it should not be set aside on
judicial review: Paez v. Canada (Citizenship and Immigration),
2008 FC 204. (Emphasis
added)
(El Falah v. Canada (Minister of Citizenship and Immigration), 2009 FC 736, [2010] F.C.J. No. 1402
(QL).
[15]
In citizenship appeals,
the role of this Court is not to substitute its opinion for that of the
citizenship judge, but to assess whether the citizenship judge correctly
applied the residency test chosen (El Falah, above).
[16]
Section 5 of the Act
sets out the criteria an applicant must meet to be granted Canadian citizenship:
|
5. (1)
The Minister shall grant citizenship to any person who
(a) makes application for citizenship;
(b) is eighteen years of age or over;
(c) is a permanent resident within the
meaning of subsection 2(1) of the Immigration and Refugee Protection Act,
and has, within the four years immediately preceding the date of his or her
application, accumulated at least three years of residence in Canada
calculated in the following manner:
(i) for every day during which
the person was resident in Canada before his lawful admission to Canada for
permanent residence the person shall be deemed to have accumulated one-half
of a day of residence, and
(ii) for every day during which
the person was resident in Canada after his lawful admission to Canada for
permanent residence the person shall be deemed to have accumulated one day of
residence;
(d) has an adequate knowledge of one of
the official languages of Canada;
(e) has an adequate knowledge of Canada and of the responsibilities and
privileges of citizenship; and
(f) is not under a removal order and is
not the subject of a declaration by the Governor in Council made pursuant to
section 20.
|
5.
(1) Le ministre attribue la citoyenneté à toute
personne qui, à la fois :
a) en fait la
demande;
b) est âgée d’au
moins dix-huit ans;
c) est un résident
permanent au sens du paragraphe 2(1) de la Loi sur l’immigration et la
protection des réfugiés et a, dans les quatre ans qui ont précédé la date
de sa demande, résidé au Canada pendant au moins trois ans en tout, la durée
de sa résidence étant calculée de la manière suivante :
(i) un demi-jour pour chaque
jour de résidence au Canada avant son admission à titre de résident
permanent,
(ii) un jour pour chaque jour
de résidence au Canada après son admission à titre de résident permanent;
d) a une connaissance
suffisante de l’une des langues officielles du Canada;
e) a une connaissance
suffisante du Canada et des responsabilités et avantages conférés par la
citoyenneté;
f) n’est pas sous le
coup d’une mesure de renvoi et n’est pas visée par une déclaration du
gouverneur en conseil faite en application de l’article 20.
|
[17]
In its interpretation
of the notion of residence set out in paragraph 5(1)(c) of the Citizenship
Act, R.S., 1985, c. C-29 (Act), and of the case law, the Court identified
three different approaches that can be taken by a citizenship judge:
[10] This
Court’s interpretation of “residence” can be grouped into three categories. The
first views it as actual, physical presence in Canada for a total of three
years, calculated on the basis of a strict counting of days (Pourghasemi
(Re), [1993] F.C.J. No. 232 (QL) (T.D.)). A less stringent reading of the
residence requirement recognizes that a person can be resident in Canada, even while
temporarily absent, so long as he or she maintains a strong attachment to
Canada (Antonios E. Papadogiorgakis (Re), [1978] 2 F.C. 208 (T.D.).
A third interpretation, similar to the second, defines residence as the
place where one “regularly, normally or customarily lives” or has “centralized
his or her mode of existence” (Koo (Re), [1993] 1 F.C. 286 (T.D.) at
para. 10).
[11] I essentially agree with Justice James O’Reilly in
Nandre, above, at paragraph 11 that the first test is a test of
physical presence, while the other two tests involve a more qualitative
assessment:
Clearly, the Act
can be interpreted two ways, one requiring physical presence in Canada for three years out of four, and
another requiring less than that so long as the applicant’s connection to Canada is strong. The first is a physical
test and the second is a qualitative test.
(Emphasis added.)
(Mizani v. Canada (Minister of Citizenship and Immigration), 2007 FC 698, 158 A.C.W.S. (3d) 879).
[18]
It is also trite law
that a citizenship judge may apply any of these three approaches, as he or she
sees fit:
[12] It has
also been recognized that any of these three tests may be applied by a
Citizenship Judge in making a citizenship determination (Lam v. Canada
(Minister of Citizenship and Immigration), [1999] F.C.J. No. 410 (T.D.)
(QL)). For instance, in Hsu v. Canada (Minister of Citizenship and
Immigration), 2001 FCT 579, [2001] F.C.J. No. 862 (QL), Justice
Elizabeth Heneghan at paragraph 4 concludes that any of the three tests
may be applied in making a residency determination:
The case law on
citizenship appeals has clearly established that there are three legal tests
which are available to determine whether an applicant has established residence
within the requirements of the Citizenship Act (…) a Citizenship Judge may
adopt either the strict count of days, consideration of the quality of
residence or, analysis of the centralization of an applicant’s mode of
existence in this country.
[Citations
omitted]
While a Citizenship
Judge may choose to rely on any one of the three tests, it is not open to him
or her to “blend” the tests (Tulupnikov, above, at para. 16).
(Emphasis added.)
(Mizani, above).
[19]
The citizenship judge,
having identified the relevant period as being from November 28, 2001, to November 28, 2005, noted that the applicant reported having been
outside Canada for 362 days during that period (Reasons,
p. 13).
[20]
Therefore, the
applicant was allegedly in Canada a total of 1,098 days (Citizenship Record:
“Residence Calculator”, p. 4).
[21]
The applicant did not meet
the strict criterion of mandatory physical presence for 1,095 days in
the relevant period, as for the 1,098 days she was allegedly in Canada, she could not provide proof of her presence for the 1,095
days, strictly counted, required by law.
[22]
The citizenship judge
stated that, having considered the documents provided by the applicant, he was
not satisfied on a balance or probabilities that the applicant had in fact been
physically present in Canada for the number of days alleged (Reasons,
p. 13).
[23]
The citizenship judge gave
several reasons for doubting that the applicant had been present in Canada:
a.
At the interview, the
applicant could not explain why two Canadian re-entry stamps were missing, namely,
one from November 24, 2004, and another from September 6, 2005. The citizenship judge asked her to submit
additional documents regarding those dates;
b.
The receipts for the K.I.D.S.
West Westmount Day Care showed that Aysha and Bara, the
applicant’s children, were present in Canada on dates that,
according to the applicant’s own statements, they were out of the country;
c.
Tax records provided by
the applicant showed income of only $1.00 (2001), $848.00 (2002), $1.00 (2003),
$1.00 (2004) and $160.00 (2005). The applicant did not report any employment
apart from volunteer work as a teacher’s assistant from September 2003 to
summer 2006 at École Al-Salam;
d.
Their bank statements
did not reflect the usual expenses of a family with children.
(Reasons, pp. 13-14.)
[24]
The citizenship judge
also noted that the onus was on the applicant to prove, on a balance of
probabilities, that she met the residence requirements under paragraph 5(1)(c)
of the Act (Reasons, p. 14).
[25]
On the basis of these
considerations, the citizenship judge found that the evidence adduced by the
applicant did not establish that she met the requirements set out in
paragraph 5(1)(c) of the Act (Reasons, p. 14).
[26]
In her memorandum, the
applicant submits that she meets the requirements of Re Koo (T.D.),
[1993] 1 F.C. 286, 59 F.T.R. 27, and Re Papadogiorgakis, [1978] 2 F.C.
2008, [1978] 2 A.C.W.S. 482, and that, having regard to these factors, she has
demonstrated having established her residence in Canada (Applicant’s Memorandum of Fact and Law, at para. 39).
[27]
However, that was not
the test that the citizenship judge chose to apply. It appears from the reasons
for decision that the citizenship judge chose to apply the stricter approach of
physical presences in Canada during the relevant period.
[28]
It is very clear that
at no point in his decision does the citizenship judge try to analyze the
quality of the applicant’s attachment to Canada in accordance with Papadogiorgakis,
above, nor does he analyze the factors from Koo, above, to establish
whether the applicant had indeed centralized her mode of existence in Canada.
[29]
The citizenship judge
makes direct reference to the decision of Justice Francis C. Muldoon in
Re Pourghasemi (1993), 62 F.T.R. 122, 39 A.C.W.S. (3d) 251, which provides
that the determination may be based on actual, physical presence in Canada for
a total of three years, according to a strict calculation of days
present:
[20] However,
this Court has consistently held that the Citizenship Judge can apply any of
three tests to interpret the concept of residence: see, for example, Mizani
v. Canada (Citizenship and Immigration), 2007 FC 698. One of those
tests consists in determining whether an applicant has been actually,
physically present in Canada for a total of three years, calculated on the
basis of a strict counting of days: Re Pourghasemi, [1993] F.C.J. No. 232. That is the approach
taken by the Citizenship Judge in this case. (Emphasis added.)
(El Falah, above).
[30]
The case law clearly
states that it is up to the judge to choose which residency test to rely on (Mizani, above). It was perfectly
open to the citizenship judge to apply the physical presence test and to assess
the evidence to determine whether the applicant had indeed been physically
present in Canada during the relevant period.
[31]
The case law clearly
prohibits a citizenship judge from blending these three established tests, as
the applicant has done in her arguments:
While a Citizenship
Judge may choose to rely on any one of the three tests, it is not open to him
or her to “blend” the tests (Tulupnikov, above, at para. 16). (Emphasis added.)
(Mizani, above).
[32]
In his analysis, the
citizenship judge examined the documents filed by the applicant, but the
applicant did not satisfy him that she had indeed been physically present in Canada for a number of days equal to the number alleged. The
citizenship judge did not make any error in acting in such a way.
[33]
The applicant does not
raise any error other than the issue of the application of the tests in Papadogiorgakis
and Koo, above, tests that she believes she has met.
[34]
The citizenship judge
chose to apply the Pourghasemi test and did not have to consider the Papadogiorgakis
and Koo tests. Furthermore, these tests are mutually exclusive, not
conjunctive.
[35]
The decision of the
citizenship judge must be considered with deference:
[12] As the question is one of
mixed fact and law of which citizenship judges possess a degree of knowledge
and experience, determinations of whether an applicant has met the residence
requirement of the Act are owed a measure of deference. Thus, a Judge’s
conclusion will be reasonable “if it is supported by a tenable explanation even
if this explanation is not one that the reviewing court finds compelling” (Law
Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 (QL), at para. 55). (Emphasis added.)
(Paez v. Canada (Minister of Citizenship and Immigration), 2008 FC 204, 165 A.C.W.S. (3d)
228).
[36]
The evidence was
insufficient and did not show that the applicant had been physically present in
Canada for at least 1,095 days.
[37]
The Court agrees that
the citizenship judge’s finding is not unreasonable.
[38]
In her affidavit, the
applicant alleges that she does not recall the citizenship judge’s having
raised the absence of certain entry stamps for Canada and having asked her to file additional documentation
regarding those dates.
[39]
In the “Notice to the Minister
of the Decision of the Citizenship Judge” form, the citizenship judge wrote the
following remark and initialled it:
I asked for
additional information. Applicant has 20 days to submit them (CC and bank
statements, schools receipts, pharmacy receipts, schools letters.
(Citizenship Record, p. 12).
[40]
An envelope,
preaddressed to Citizenship and Immigration and bearing a handwritten note of
the record number with the hearing date in parentheses and the note [translation] “Judge AA”, was
received on August 25, 2009 (Citizenship Record, p. 20).
[41]
This envelope included
the documents found at pages 22 to 111 of the Court File and the letter
dated August 20, 2009, from the applicant to the citizenship
judge, in which the applicant states that the citizenship judge asked her
for additional information showing her physical presence in Canada.
[42]
The applicant knew or
should have known that the requested information had to show all of her
days present in Canada, including the alleged returns to Canada not confirmed by a Canadian entry stamp in her
passport.
[43]
The Court agrees that the
onus is on the applicant to present sufficient evidence:
[9] It is therefore obvious that the applicant had to provide her evidence
to establish that she had been in Canada for 1460 days
before the date of her application, which was April 30, 2003. The Judge therefore examined and questioned the applicant regarding
that period . . . (Emphasis added).
(El Firhi v. Canada (Minister of Citizenship and Immigration), 2005 FC 1106, 147 A.C.W.S. (3d) 745).
[44]
It is up to the
citizenship judge to analyze the evidence:
(iv) The Role of the Citizenship Judge
[14] The Residence Questionnaire
listed documents to be provided and the Applicant was given extra time to have
income tax returns prepared in support of his application. The Applicant says
that because he was not asked for more information, he assumed that the
material he provided was satisfactory. He complains that he was not given an opportunity
to provide additional material. However, the Citizenship Judge is not obligated
to provide an applicant with a running commentary about the adequacy of his
documentation. The onus is on the applicant to establish residence. Once the
applicant completes his case by submitting his documents, the Citizenship Judge
considers the material and makes a ruling which is final subject only to an
appeal. I have found no unfairness in this process. (Emphasis added).
(Zheng v. Canada (Minister of Citizenship and de
Immigration), 2007 FC
1311, 163 A.C.W.S. (3d) 120).
[45]
In her memorandum, the
applicant does not raise any error made by the citizenship judge in assessing
the evidence; she merely states that she disagrees with that assessment.
[46]
The citizenship judge’s
assessment of the evidence is within his expertise and specialized knowledge (Paez,
above) and contains no errors.
[47]
The citizenship judge
considered the documents filed and noted that the records from K.I.D.S.
Westmount Day Care show that the children were present in Canada, whereas according to the applicant’s own statements,
they were outside Canada with their mother.
[48]
The citizenship judge took
note of the week of September 2,
2002 (Citizenship Record; for
Aysha, p. 25; for Bara, p. 27, whereas they were outside Canada with their
mother until September 9, 2002, Residence Calculator), and the week of
January 13, 2003 (whereas they were outside Canada with their mother until January 14,
2003, Residence Calculator).
[49]
Such erroneous
presences also crop up in other periods covered by these records. Here are some
examples:
-
According to the letter
from the day-care centre (Citizenship Record, p. 23), the children began
attending the centre in December 2001. However, there are no attendance records
for December 2001 for either child, and the records for January 2002 are
only from January 28, 2002, onward (for Aysha, p. 25; for Bara, p. 27).
The Court notes that there is no Canadian entry stamp for the alleged return to
Canada on December 18, 2001 (copy of applicant’s passport G 482564, valid from
October 30, 1999, to October 29, 2004, at pp. 165-190), only an
entry stamp for the United Kingdom on that same date (p. 177);
-
The children are
reported as being present for the week of January 6, 2003 (for Aysha, p. 26; for Bara, p. 28),
whereas they were out of the country with their mother (Residence Calculator);
-
Bara is reported as
being present every month in the summers of 2003 and 2004 (pp. 28-29), whereas
according to her mother’s statements, they were outside Canada from June 19 to September 5, 2002, and from
July 2 to September 20,
2003 (Residence Calculator).
[50]
The Court acknowledges the
applicant’s admission that the children were marked present when they were
absent, but she submits that these were inadvertent errors (AR, Applicant’s
Affidavit, p. 10, para. 5).
[51]
Although the applicant
attributes these errors to a mere oversight, the Court notes that this confirms
the citizenship judge’s finding that those documents do not adequately reflect,
on a balance of probabilities, the number of days the applicant was physically
present in Canada (Reasons, p. 13).
[52]
The citizenship judge
noted that two of the applicant’s returns to Canada were not evidenced by a Canadian entry stamp (Reasons, p. 13).
[53]
In fact, the Court notes
that the applicant left Canada seven times during the relevant period
(Residence Calculator). Only three of the seven returns to Canada are evidenced by an entry stamp: January 14,
2003, September 20, 2003, and August 29, 2004 (Citizenship
Record, pp. 174, 177 and 196).
[54]
In all, four returns to
Canada are not evidenced by entry stamps. The alleged dates
for these returns are the following: December 18, 2001, September 5, 2002, November 21, 2004, and September 6, 2005 (Residence Calculator and
Residence Questionnaire, p. 162).
[55]
More specifically, the
Court acknowledges the alleged returns on December 18, 2001,and November 21, 2004. In those two
cases, United Kingdom entry stamps appear in the passport for those same dates,
namely, December 18, 2001, and November 21, 2004, respectively (p. 198).
[56]
As the citizenship
judge made more specific note of the lack of an entry stamp for
November 21, 2004, the applicant explained in her affidavit that in her
passport, there was a Jordanian entry stamp dated October 28, 2004, and a
Jordanian exit stamp dated November 21, 2004.
[57]
The applicant further
alleges that there are no other stamps between her Jordanian exit stamp from November 21, 2004, and the Jordanian entry stamp from July 9,
2005.
[58]
The Court finds that this
assertion is wrong, since there is a United Kingdom entry stamp dated November 21, 2004 (p. 198; pp. 199 and 200 for the
entries of Aysha and Bara).
[59]
Since the United Kingdom does not issue exit stamps, and since the applicant
does not have a Canadian entry stamp for this period, it is impossible to know
how long she stayed in the United
Kingdom.
[60]
The Court also notes
that the receipts from K.I.D.S. Westmount Day Care for Bara, for the alleged
duration of this trip (i.e., from October 27, 2004, to November 21, 2004) show that Bara’s attendance was continuous and
uninterrupted (p. 29).
[61]
Furthermore, the Court
notes that the YWCA attendance report does not prove that the applicant was in
Canada on or about November 21, 2004, because according to that document,
the applicant did not go to the YWCA in November 2004 and went only four
times in December 2004 (Citizenship Record: YWCA report, at line “RSA
Branch W 2004”, p. 240).
[62]
Additionally, the
letter from École Al-Salam, dated May 30, 2009, which allegedly shows the
applicant’s absence on certain Saturdays, is very specific (Citizenship Record,
p. 52), and her regular attendance on other Saturdays cannot confirm her
return to Canada on November 21, 2004.
[63]
At most, this letter
appears to indicate that the applicant was at the school on Saturday, November 27, 2004, since that Saturday is not listed as an
absence.
[64]
However, this would
only prove that the applicant was in Canada on
November 27, 2004, and does not confirm on which date she supposedly
returned to Canada between November 21, 2004 (return not confirmed by stamp) and
Saturday, November 27, 2004, a difference of six days.
[65]
Given that, according
to the dates that the applicant was allegedly present in Canada, the applicant exceeded the minimum number prescribed
by the Act by only three days, her inability to provide sufficient evidence
of the dates she was present in Canada is necessarily
fatal to her application.
[66]
The onus was on the
applicant to prove her physical presence in Canada.
[67]
The Court agrees that
it was not unreasonable for the citizenship judge to find that the applicant
had not shown, on a balance of probabilities, that she met the residence
requirement under paragraph 5(1)(c) of the Act, since the documents
she submitted did not establish on a balance of probabilities that she had been
physically present in Canada during the relevant period:
[19] In this matter, the onus was on the applicant to
provide sufficient evidence to demonstrate that he met residency requirements
of the Act (Rizvi v. Canada (Minister of Citizenship and Immigration), 2005 FC 1641, 2005 FC 1641, [2005] F.C.J. No.
2029 (QL) at para. 21). Therefore, according to the “physical presence” test
he was required to demonstrate at least 1095 days in Canada in the relevant period, failing which, his application
would be rejected. In the present case, the Judge was not able to confirm the
applicant’s assertions regarding the number of days he was present in Canada, given the inadequacy of his evidence. (Emphasis added.)
(Mizani, above).
[68]
The Court also agrees
that the applicant had to prove on a balance of probabilities that she met the
residence requirement under the Act:
[20]However, the applicants had the burden of proving
they met the requirements of paragraph 5(1)(c). In Maharatnam v.
Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 405 (F.C.T.D.) (QL),
Gibson J. stated the following at paragraph 5:
I am satisfied that the onus is on an applicant for
Canadian citizenship to satisfy a Citizenship Judge that he or she fulfills the
requirements of the Act or warrants an exercise of discretion by the
Citizenship Judge, pursuant to subsection 15(1). (Emphasis added.)
(Sager v. Canada (Minister of Citizenship and Immigration), 2005 FC 1392, 152 A.C.W.S. (3d) 21).
[69]
In the present case,
the applicant clearly did not provide sufficient evidence in support of her
citizenship application. Therefore, it was reasonably open to the citizenship
judge to find as he did.
[70]
The citizenship judge’s
finding is reasonable, and there is no basis for this Court to intervene.
VI. Conclusion
[71]
Although the applicant
disagrees with the decision of the citizenship judge, she has not shown any
error that would warrant intervention by this Court.
[72]
The applicant has not
shown that she met the residence requirement under the Act, and the citizenship
judge made no errors in his assessment of the evidence.
[73]
For all these reasons,
the Court dismisses the applicant’s citizenship appeal.
JUDGMENT
THE COURT dismisses the applicant’s appeal. No question
is certified.
“Michel M.J. Shore”
Certified true
translation
Michael Palles
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