Date: 20110420
Docket: T-1619-10
Citation: 2011 FC 482
Ottawa, Ontario, April 20,
2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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ANNE MARIE MURPHY
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application pursuant to subsection 14(5) of the Citizenship Act (R.S., 1985, c.
C-29) (the Act)
for judicial review of a Citizenship Court decision dated August 10, 2010
denying the
applicant’s application for Canadian citizenship.
[2]
The
facts are straightforward. The applicant is originally from the United States. She has a Master’s
degree in Film from the University of California, Los Angeles (UCLA). She currently lives
in Kingston,
Ontario with her daughter who
attends senior kindergarten. The applicant operates, or operated, film-consulting
businesses in Canada and the United States. At the time she completed her citizenship
application, she was in the process of closing the U.S. portion of her business.
The applicant employs four Canadian citizens at the Canadian business. The
applicant has also lectured at Queen’s University’s Media Studies department.
[3]
The
applicant came to Canada on November 6, 2003 and
became a permanent resident on October 13, 2004. She submitted her application
for Canadian citizenship on June 9, 2008. In the period of time preceding her
citizenship application, the applicant declared that she had been absent from Canada for 696 days and had
only been physically present in Canada for 701 days. On August 10, 2010 the Citizenship
Judge denied the applicant’s application for Canadian citizenship. The
applicant now seeks a writ of certiorari quashing the decision, a writ of
mandamus ordering that she be granted citizenship, and costs of her judicial
review application.
[4]
The gravamen
of the appeal is that in failing to apply the Koo test; Koo (Re), [1993] 1 FC
286,
the
Citizenship Judge rendered an unreasonable decision. The applicant contends
that she meets the requirements for citizenship set forth in Koo (Re).
The applicant contends that the decision of this Court in Canada (Citizenship
and Immigration) v Takla, 2009 FC 1120 makes Koo (Re) the controlling and
sole test.
[5]
The record
before this Court is lengthy and indicates that the applicant had centralized her
mode of living in Kingston, Ontario. It is also
clear that the applicant’s intent to become a Canadian citizen in genuine. This
evidence cannot, however, be used to overcome the requirement of physical
presence, if it is used to define residency. The applicant was, at the time
her application was made, absent from Canada for 696 days. It is perhaps more appropriate
to say that she was only physically present in Canada for 701 days.
[6]
This
finding is not in issue. What is in issue, however, is whether the Citizenship
Judge was correct in choosing to follow the test in Re Pourghasemi [1993] FCJ
No 232 which requires that residency be established by physical presence. As noted by this
Court in Abbas
v Canada (Citizenship and Immigration), 2011 FC 145; Hao v Canada
(Citizenship and Immigration), 2011 FC 46; El-Khader v Canada
(Citizenship and Immigration), 2011 FC 328; the decision of this Court in Canada
(Citizenship and Immigration) v Takla, 2009 FC 1120 did not and could not
overrule the decision in Lam v Canada (Minister of Citizenship and
Immigration), (1999), 164 FTR 177. That case, it should be recalled, held that a
Citizenship judge is free to choose any of the tests, and, provided that it was
properly applied, this Court would not set it aside.
[7]
Counsel
for the applicant also contended that this case fell within the range of
exceptional circumstances, as contemplated by the Citizenship Courts’ Policy
Manual. In my view, the Policy Manual is of limited effect in constraining the
exercise of discretion of a Citizenship judge in selecting the test of
residency. In any event, even if it did, the applicant fell far short of the
required number of days, and exceptional circumstances as contemplated by the
Manual are likely to be events beyond a putative citizen’s control such as
medical illness or emergencies.
[8]
Simply
put, it is not an error for a Citizenship judge to assess residency by applying
only the physical presence test. The jurisprudence as it currently stands
provides Citizenship judges with the discretion to choose any of the three
tests. Clearly, some Federal Court judges prefer one test to another, but Citizenship
judges retain the ability to choose and apply any of the three tests.
[9]
In
this case, the Citizenship Judge, having adopted the physical presence test for
residency, reasonably concluded that the applicant had not met the physical
residency requirement.
[10]
The
application for judicial review is dismissed.
[11]
There
is no order as to costs.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review be and is hereby
dismissed. There is no order as to costs.
"Donald
J. Rennie"
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