Kakar v. Canada (Minister of Citizenship and Immigration), 2007 FC 57

 

 

 

 

Date: 20070122

Docket: T-889-06

Citation: 2007 FC 57

Ottawa, Ontario, January 22, 2007

 

PRESENT:     The Honourable Mr. Justice Blais

 

 

BETWEEN:

VEENITA KAKAR

Applicant

and

 

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

 

 

 

REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               This is an application brought under rule 300(c) of the Federal Courts Rules, SOR/98-106,  in the form of an appeal as set out in subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 (the Act), from the decision of citizenship judge Arthur Miki, dated March 30, 2006, wherein he denied the applicant’s application for Canadian citizenship.

 

[2]               For the following reasons, I am satisfied that this application for judicial review should be denied.

 

BACKGROUND

[3]               Mrs. Veenita Kakar (the applicant) obtained permanent resident status and immigrated to Canada from India in 1970. She remained in Canada, without applying to obtain her citizenship, until 1983, at which time she followed her husband, a Canadian citizen, who relocated to India for business purposes.

 

[4]               Mrs. Kakar submitted her application for citizenship in 2003 and appeared before citizenship judge Arthur Miki (the citizenship judge) in Edmonton in December of 2004. In a letter dated March 30, 2006, the citizenship judge denied her application on the ground that she had not met the residency requirement.

 

[5]               There is no dispute that during the four years prior to applying for citizenship on August 9, 2003, the applicant was present in Canada for 664 days and absent for 746 days, a shortfall of 431 days from the required 1095 days of residence in Canada, as per paragraph 5(1)(c) of the Act.

 

ISSUE FOR CONSIDERATION

[6]               Did the citizenship judge make a reviewable error in finding that the applicant did not meet the residency requirement under section 5 of the Act to be granted citizenship?

 

 

 

STANDARD OF REVIEW

[7]               It is well established that the standard of review regarding residency requirements in citizenship cases is that of reasonableness. As stated by Justice Richard Mosley in Zeng v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 2134 at paragraphs 9-10:

Applying a pragmatic and functional analysis to the review of the decisions of citizenship judges respecting the residency requirement of the Act,  several judges of this court have recently concluded that a more appropriate standard would be reasonableness simpliciter: Chen v. Canada (Minister of Citizenship and Immigration) 2004 FC 1693, [2004] F.C.J. No. 2069; Rasaei v. Canada (Minister of Citizenship and Immigration) 2004 FC 1688, [2004] F.C.J. No. 2051; Gunnarson v. Canada (Minister of Citizenship and Immigration) 2004 FC 1592, [2004] F.C.J. No. 1913; Canada (Minister of Citizenship and Immigration) v. Chen 2004 FC 848, [2004] F.C.J. No. 1040; Canada (Minister of Citizenship and Immigration) v. Fu 2004 FC 60, [2004] F.C.J. No. 88; Canada (Minister of Citizenship and Immigration) v. Chang 2003 FC 1472, [2003] F.C.J. No. 1871.

 

I agree that the question of whether a person has met the residency requirement under the Act is a question of mixed law and fact and that Citizenship Judges are owed some deference by virtue of their special degree of knowledge and experience. Accordingly, I accept that the appropriate standard of review is reasonableness simpliciter and that, as stated by Snider J. in Chen, supra at paragraph 5, "as long as there is a demonstrated understanding of the case law and appreciation of the facts and their application to the statutory test, deference should be shown."

 

ANALYSIS

[8]               In his analysis of the applicant’s case, the citizenship judge chose to rely on the test set out in Re Koo, [1992] F.C.J. No. 1107, where Madam Justice Barbara J. Reed held as follows:

The conclusion I draw from the jurisprudence is that the test is whether it can be said that Canada is the place where the applicant "regularly, normally or customarily lives". Another formulation of the same test is whether Canada is the country in which he or she has centralised his or her mode of existence.  Questions that can be asked which assist in such a determination are:

 

(1)          was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship;

(2)          where are the applicant's immediate family and dependents (and extended family) resident;

(3)          does the pattern of physical presence in Canada indicate a returning home or merely visiting the country;

(4)          what is the extent of the physical absences - if an applicant is only a few days short of the 1095 day total it is easier to find deemed residence than if those absences are extensive;

(5)          is the physical absence caused by a clearly temporary situation such as employment as a missionary abroad, following a course of study abroad as a student, accepting temporary employment abroad, accompanying a spouse who has accepted temporary employment abroad;

(6)          what is the quality of the connection with Canada: is it more substantial than that which exists with any other country.

 

 

[9]               First, the applicant submits that the citizenship judge erred in his failure to consider all of the relevant circumstances of Mrs. Kakar’s life in Canada from 1970 until 1983. This failure resulted in an incomplete analysis of the facts, and thus a reviewable error. The applicant further submits that the citizenship judge erred in his application of the test for residency, by blending two separate tests, namely the substantial connection test set out in Re Koo, above, and the strict calculation of time.

 

[10]           The respondent for his part submits that a fair reading of the citizenship judge’s decision and reasons show that he did consider the relevant circumstances of the applicant’s life. In fact, the applicant simply failed to demonstrate that she had centralized her mode of existence in Canada during the relevant time, as required by the Re Koo test. The respondent further holds that the citizenship judge considered all the facts and properly applied the relevant test. As such, the decision is not unreasonable and should not be disturbed on review.

 

[11]           In this Court’s opinion, a review of the citizenship judge’s decision shows that he listed all the relevant criteria and sought to apply the facts of the applicant’s case to the Re Koo test. As noted by the citizenship judge, while the applicant may have resided in Canada on a permanent basis for twelve years starting in 1970, since 1983, she has made India her home. Her husband and children reside in India and the pattern of her physical presence in Canada shows that she is living in India, and visiting Canada.

 

[12]           We must also be cognizant of the fact that time spent in Canada remains a key element to be considered, even when one applies the more generous test found in Re Koo. More to the point, the applicant did not simply fall short of the three-year requirement by a few days or even a few months, but by more than a year. Also, the time spent outside of the country has not been in the pursuit of an education or on a temporary work assignment abroad, with Canada remaining her anchor and the country to which the applicant is likely to return to in the end. On the contrary, from the evidence presented, it is quite clear that the applicant has in fact “centralized her mode of existence”, but that she has done so in India, not in Canada.

 

[13]           The applicant also maintains that the citizenship judge erred by not making a recommendation to the Minister for an exercise of discretion under sub-section 5(4) of the Act. However, as correctly noted by the respondent, the onus was on the applicant to provide evidence of special or undue hardship that would justify an exercise of ministerial discretion, which she failed to do. Furthermore, the power given to a citizenship judge to recommend an exercise of discretion under section 15(1) is not considered a decision under section 14(2), and as such, this Court does not have jurisdiction over the matter in the present proceedings (Zhang v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1943).

 

[14]           Finally, the applicant submits that the Citizenship and Immigration Commission failed in its statutory duty to give adequate and timely notice to the applicant of her denial of citizenship. While there is no question that the decision was issued well outside the sixty-day period set out in section 14(1) of the Act, the respondent is correct in stating that, absent any demonstrated prejudice to the applicant, this is not a reviewable error (Wan v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 81).

 

[15]           For all the above reasons, this application is denied.

 

JUDGMENT

 

      The application is denied.

 

 

 

 

 

“Pierre Blais”

 

ANNEX

PERTINENT LEGISLATION

Citizenship Act, R.S.C. 1985, c. C-29

 

FEDERAL COURT

 

NAME OF COUNSEL and SOLICITORS OF RECORD

 

 

DOCKET:                                  T-889-06

 

STYLE OF CAUSE:                  Veenita Kakar v. Minister of Citizenship and Immigration

 

PLACE OF HEARING:            Edmonton, Alberta

 

DATE OF HEARING:              January 17, 2007

 

REASONS FOR JUDGMENT AND JUDGMENT:          Mr. Justice Blais

 

DATE OF REASONS:                      January 22, 2007

 

 

APPEARANCES:

 

Ms. Christine E.P. Bishop                                                                 For  the applicant

                                                   

 

Mr. Brad Hardstaff                                                                           For the respondent

                                                   

 

 

SOLICITORS OF RECORD:

 

Fraser Milner Casgrain LLP                                                               For the applicant

Edmonton, Alberta

 

John H. Sims, Q.C.                                                                           For the respondent

Deputy Attorney General of Canada

Ottawa, Ontario