Date: 20100726
Docket: T-2044-09
Citation: 2010 FC 777
Ottawa, Ontario, July 26,
2010
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
TONI
DEDAJ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I.
Overview
[1]
Mr. Toni Dedaj applied for Canadian citizenship
in 2007. He thought he had the exact minimum number of days of residency in Canada required by the Citizenship Act, R.S.C.
1985, c. C-29. The Act obliges applicants to live in Canada for three out of the four preceding years – 1,095 days. Mr. Dedaj
thought he met that threshold, but a citizenship judge disagreed. She found
that he was a couple of days short and dismissed his application. Mr. Dedaj
appeals.
[2]
Mr. Dedaj argues that the judge erred in her
finding that he did not meet the residency requirement for citizenship. He also
suggests that she had a duty to go on to consider whether he had established
and maintained his residence in Canada for the required duration, even if he
was not actually physically present in Canada for all the 1,095 days.
[3]
In my view, while the citizenship judge was
entitled to make the factual finding that Mr. Dedaj was not physically present
for each of the required 1,095 days, she was also obliged to consider whether
he had established and maintained his residence for that period of time.
Accordingly, I must allow his appeal and order a reconsideration of his
application for citizenship.
II. Analysis
(1) Factual Background
[4]
Mr. Dedaj left Albania in 1997 and moved to the United States where he met and married his wife. He arrived in Canada in 2002, made a successful refugee
claim, and became a permanent resident in 2005. He claims to have been
physically present in Canada
from October 2, 2002 until August 30, 2007, the day he submitted his
citizenship application. Because he was credited a half day for every day of
physical presence in Canada prior to becoming a permanent resident, and a full
day for every day thereafter, he achieved, in his view, exactly 1,095 days of
physical presence in Canada as of August 30, 2007.
(2)
The Citizenship Judge’s Decision
[5]
The citizenship judge concluded that Mr. Dedaj
had not met the residency requirement because he had stayed with his parents in
the United States for a couple
of nights during the relevant time frame. The judge was also concerned that,
shortly after submitting his Canadian citizenship application, Mr. Dedaj had
moved to the United States, had become a permanent resident there, had acquired
a Michigan driver’s licence,
and obtained a U.S. social
security number.
(3)
Did the Citizenship Judge Err?
[6]
The citizenship judge deserves deference in
respect of findings of fact. The Court will intervene only if those findings
are unreasonable. In this case, it is unnecessary for me to determine whether
the judge’s findings were unreasonable because I am satisfied that the judge
made an error of law.
[7]
Some years ago, this Court recognized that there
was more than one valid approach to determining whether an applicant had met
the residency requirement of the Act. The two principal approaches involve, on
the one hand, a purely physical test and, on the other, a qualitative test of
residency: Canada
(Minister of Citizenship and Immigration) v.
Nandre, 2003 FCT 650, at para. 11. In Nandre, I concluded, citing
six main reasons, that where a citizenship judge finds that an applicant had
not satisfied the physical test, he or she has an obligation to go on to apply
the qualitative test. The latter involves an inquiry, based on a consideration
of several factors, into whether the applicant had established and maintained a
residence in Canada for the
required period. The relevant factors appeared in Koo (Re), [1993] 1
F.C. 286 (T.D.).
[8]
This approach has been adopted by other judges
and represents the prevalent trend in recent Federal Court jurisprudence. See,
for example, Zhang v. Canada (Minister of Citizenship and
Immigration), 2008 FC 483; Canada (Minister of Citizenship and Immigration) v. Takla, 2009 FC 1120; Canada (Minister of Citizenship and Immigration) v. Elzubair, 2010 FC 298.
[9]
In my view, the citizenship judge had an
obligation to consider the qualitative test. While she did consider Mr. Dedaj’s
ties to the United States and
commented on his having centralized his life there, she relied mainly on
developments that post-dated his citizenship application. Further, she did not appear
to consider the evidence supporting Mr. Dedaj’s ties to Canada. Nor did she analyze the relevant
factors from Koo, above.
III. Conclusion
and Disposition
[10]
I will allow this appeal because the citizenship
judge failed to consider whether Mr. Dedaj had met the residency requirement by
having established and maintained his residency in Canada for the required
period, even if he was not physically present in Canada for all of the 1,095 days. I will return the matter to another
citizenship judge to reassess Mr. Dedaj’s application.
JUDGMENT
THIS COURT’S JUDGMENT IS
that
1.
The
appeal is allowed and a reconsideration of this
application for citizenship, by another citizenship judge, is ordered.
“James W.
O’Reilly”
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