Docket: T-455-11
Citation: 2011 FC 1248
Ottawa, Ontario, November
1, 2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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BINDU SINGH DESHWAL
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Applicant
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an appeal of the decision of a Citizenship Judge under subsection 14(5) of
the Citizenship Act, RSC, 1985, c C-29 (the Act). The Applicant
contests the refusal to grant her citizenship on the basis that she did not
meet the residency requirements mandated by subsection 5(1)(c) of
the Act.
[2]
For
the following reasons, this appeal is dismissed.
I. Facts
[3]
The
Applicant, Bindu Singh Deshwal, is a citizen of India. She
arrived in Canada and became a
permanent resident on June 9, 2002.
[4]
The
Applicant submitted her application for citizenship on November 24, 2008. The relevant
time period for residency purposes is therefore from November 24, 2004 to
November 24, 2008. During this time period, however, the Applicant
returned to India from July 16,
2002 to July 13, 2005. She was also absent from Canada for the
periods of December 26, 2007 to January 20, 2008 and February 14,
2009 to September 24, 2010.
II. Citizenship
Determination
[5]
Having
applied the six factors established in Re Koo (1992), 59 FTR 27, [1993]
1 FC 286, the Citizenship Judge was not satisfied that the Applicant had met
the residency requirement under subsection 5(1)(c) of the Act.
[6]
The
Applicant departed Canada only 37 days after her arrival and was absent
for 1,092 days. Thereafter, she was absent for 25 day and 586 day periods.
She could not provide evidence to confirm that her husband lived in Canada or that her
son attended school in the relevant period. In addition, she could not
confirm her residential addresses in the country. Although the Applicant
claimed she was in Canada for 1,204 days, the Citizenship Judge was
unable to determine the extent of her physical absences due to a lack of
documentation.
[7]
Similarly,
there was no evidence that her absences from Canada related to a
clearly temporary situation. It was noted that the Applicant recently returned
to Canada with her son
but that her husband remained in India. She claims that her
husband remained to care for his sick father but there was no evidence of this
illness.
[8]
Despite
her recent return to Canada and attempts to re-establish herself and her son,
she had spent more time in India than in Canada. There was
a lack of documentation that her connection to Canada was more
substantial than that of any other country during the relevant period. The
Citizenship Judge could not approve her application.
III. Issues
[9]
This
application raises the following issues:
(a) Can the Applicant submit new
evidence to this Court as part of her citizenship appeal?
(b) Did
the Citizenship Judge err in finding that the Applicant did not meet the
residency requirement under subsection 5(1)(c) of the Act?
III. Standard
of Review
[10]
In
Pourzand v Canada (Minister of Citizenship and Immigration), 2008 FC
395, 2008 CarswellNat 831 at para 19, it was found that reasonableness is the
applicable standard of review for a citizenship judge’s determination as to
whether an applicant meets the residency requirement since it is a question of
mixed fact and law.
[11]
As
articulated in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at
para 47, reasonableness is “concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process” as well as “whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law.”
IV. Analysis
Issue
A: New Evidence
[12]
The
Applicant has attempted to submit new evidence as part of her appeal to address
some of the concerns raised by the Citizenship Judge. This includes property
documents and evidence related to the employment of her spouse.
[13]
This
Court has, however, clarified that citizenship appeals are no longer trials de
novo. They proceed by way of application under Rule 300(c) of the Federal
Courts Rules, SOR/98-106 based on the record before the Citizenship Judge
(see for example Lama v Canada (Minister of
Citizenship and Immigration), 2005 FC 461, [2005] FCJ no 577 at para
21).
[14]
As
a consequence, I cannot consider new evidence presented by the Applicant as
part of this appeal.
Issue
B: Residency Requirement
[15]
Subsection
5(1)(c) establishes that citizenship will be granted where an applicant “within
the four years immediately preceding the date of his or her application,
accumulated at least three years of residence in Canada” according to the
prescribed formula.
[16]
This
Court has interpreted the term “residence” in different ways. In Re
Pourghasemi (1993), 62 FTR 122, 19 Imm LR (2d) 259, Justice Francis Muldoon
favoured a strict physical presence test while Justice Barbara Reed described
residence as being where an applicant “regularly, normally or customarily
lives” and enumerated a series of six relevant qualitative factors in Koo, above.
It is open to a Citizenship Judge to adopt either test (see Lam v Canada (Minister of Citizenship
and Immigration) (1999), 164 FTR 177, 87 ACWS (3d) 432).
[17]
Although
there has been some recent debate as to whether one test is more appropriate
(contrast the approach of Justice Robert Barnes in El Ocla v Canada
(Minister of Citizenship and Immigration), 2011 FC 533, [2011] FCJ no 667
with the emphasis placed on physical presence by Justice Donald Rennie in Martinez-Caro
v Canada (Minister of Citizenship and Immigration), 2011 FC 640,
[2011] FCJ no 881), the issue is not pertinent to this appeal. The Applicant
was given the benefit of the qualitative Koo test but was still found
not to have met the residency requirement. This Court must consider whether the
Citizenship Judge was reasonable in its application of the test to the evidence
presented by the Applicant in this case.
[18]
The
Applicant asserts that she has met the residency requirement of subsection
5(1)(c) based on the Koo factors. Despite two trips to India, she insists
that she was physically present during the relevant time period for 1,204
days. She also contends that she centralized her mode of existence with her
husband and son at an address in Canada.
[19]
As
the Respondent submits, however, given the Applicant’s frequent absences from Canada, it was
reasonable for the Citizenship Judge to require corroborating documentation.
The Applicant could not provide proof of her addresses or that her husband
lived with her during the relevant time period. There simply was not enough
evidence that she met the residency requirement.
[20]
I
must agree with the Respondent that the onus was on the Applicant to provide
sufficient evidence establishing that she satisfied the residency requirement
in the relevant period (see Rizvi v Canada (Minister of Citizenship and
Immigration), 2005 FC 1641, 2005 CarswellNat 4153 at para 21). The
Court cannot justify overturning the decision of the Citizenship Judge. I also
note that nothing precludes the Applicant, having re-established herself in Canada, from
reapplying at a later date.
V. Conclusion
[21]
Given
the lack of supporting evidence, it was reasonable for the Citizenship Judge to
conclude that the Applicant had not met the residency requirements prescribed
by subsection 5(1)(c) of the Act.
[22]
Accordingly,
this appeal is dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this appeal is dismissed.
“ D.
G. Near ”
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