Date: 20101117
Docket: T-695-10
Citation: 2010 FC 1117
Ottawa, Ontario, this 17th day of
November 2010
Present: The Honourable Mr. Justice
Pinard
BETWEEN:
LAILY SARVARIAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an appeal of a decision of a Citizenship Judge, pursuant to subsection 14(5)
of the Citizenship Act, R.S.C. 1985, c. C-29 (the “Act”) and section 21
of the Federal Courts Act, R.S.C. 1985, c. F-7, by Laily Sarvarian (the
“applicant”). The Citizenship Judge denied Ms. Sarvarian’s application for
citizenship under paragraph 5(1)(c) of the Act, the relevant portion of
which reads:
|
5.
(1) The Minister shall grant citizenship to any person who
[.
. .]
(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;
|
5.
(1) Le ministre attribue la citoyenneté à toute personne qui, à la fois :
[. .
.]
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;
|
[2]
The
applicant is an Iranian citizen and has been a permanent resident of Canada since May 22,
2005. Her husband, Ali Afsari-Nejad, has been in Canada since 2003, and is now a Canadian citizen.
[3]
The
applicant arrived in Canada on May 22, 2005 and
filed for citizenship on November 25, 2008. As of that date, she had been
physically present in Canada for 923 days, and
absent for 359 days. Her absences included 33 days on which she was in Iran
visiting family; the remainder was spent accompanying her husband to the United States and Japan while he
completed the mandatory internship portions of his Computer Engineering degree
at the University of Waterloo.
[4]
The
applicant, during these absences, was completing distance education courses
through Seneca College, in Toronto, in accounting and
finance. She also took courses in interior decorating at Conestoga College in Waterloo.
[5]
The
Citizenship Judge applied the test set out by Justice Francis Muldoon in Re
Pourghasemi (1993), 19 Imm.L.R. (2d) 259, under which an applicant must
have been physically present in Canada for a minimum of 1,095
days during the four-year period preceding the application. The Citizenship
Judge found that the applicant had only been present in Canada for 923
days, and that therefore she was 172 days short of the minimum requirement.
[6]
Both
parties agree that the question of whether an applicant meets the residency
requirements under the Act is a mixed question of fact and law, and is
therefore subject to the reasonableness standard of review: Dunsmuir v. New
Brunswick, [2008] 1 S.C.R. 190, paragraphs 44, 47-48, 53; Minister of
Citizenship and Immigration v. Arastu, 2008 FC 1222, paragraph 16; Minister
of Citizenship and Immigration v. Mueller, 2005 FC 227, paragraph 4.
[7]
Mr.
Justice Muldoon, in Re Pourghasemi, supra, at page 260, sets out
the underlying objectives of paragraph 5(1)(c) of the Act:
. . . to insure that everyone who is
granted precious Canadian citizenship has become, or at least has been
compulsorily presented with the everyday opportunity to become, “Canadianized”.
This happens by “rubbing elbows” with Canadians in shopping malls, corner
stores, libraries, concert halls, auto repair shops, pubs, cabarets, elevators,
churches, synagogues, mosques and temples - in a word wherever one can meet and
converse with Canadians - during the prescribed three years. One can observe
Canadian society for all its virtues, decadence, values, dangers and freedoms,
just as it is. That is little enough time in which to become Canadianized. If a
citizenship candidate misses that qualifying experience, then Canadian
citizenship can be conferred, in effect, on a person who is still a foreigner
in experience, social adaptation, and often in thought and outlook. If the criterion
be applied to some citizenship candidates, it ought to apply to all. So,
indeed, it was applied by Madam Justice Reed in Re Koo, T-20-92, on
December 3, 1992 [reported (1992), 59 F.T.R. 27, 19 Imm.L.R. (2d) 1], in
different factual circumstances, of course.
[8]
This
Court has later held that a proper interpretation of paragraph 5(1)(c)
of the Act does not require physical presence in Canada for the entire 1,095
days of residence prescribed therein when there are special and exceptional
circumstances. I consider, however, that actual presence in Canada remains the
most relevant and crucial factor to be taken into account for establishing
whether or not a person was “resident” in Canada within the
meaning of the provision. As I have stated on many occasions, too long of an
absence from Canada, albeit a temporary one, during that minimum period of time
is contrary to the spirit of the Act, which already allows a person who has
been lawfully admitted to Canada for permanent residence not to reside in Canada
during one of the four years immediately preceding the date of that person’s
application for citizenship.
[9]
As
a result, given the substantial absences of the applicant from Canada in the
present case (she was present in Canada for 923 days, leaving her short of the
required 1,095 by 172 days), I find that the Citizenship Judge’s conclusion
that the former did not meet the residency requirements of the Act is
reasonable and in accordance with paragraph 5(1)(c) of the Act.
[10]
For
the above-mentioned reasons, the appeal is dismissed. No costs are awarded.
JUDGMENT
The appeal from the decision of
a Citizenship Judge, dated March 5, 2010, denying the applicant’s
application for citizenship under paragraph 5(1)(c) of the Citizenship
Act, R.S.C. 1985, c. C-29, is dismissed. No costs are awarded.
“Yvon
Pinard”
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