Docket:
T-1737-12
Citation: 2014 FC 46
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, January 16,
2014
PRESENT: The Honourable Mr. Justice Annis
|
|
|
BETWEEN:
|
|
AICHA OUZKRI
|
|
Applicant
|
|
and
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
Respondent
|
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
Ms. Ouzkri, the applicant, relying on
subsection 14(5) of the Citizenship Act, RSC (1985), c C-29 [the
Act], is challenging the refusal to grant her Canadian citizenship in a decision
rendered by a citizenship judge on July 25, 2012, on the grounds that she
did not satisfy the residence requirements set out in paragraph 5(1)(c).
[2]
For the reasons that follow, I am dismissing the
application for judicial review.
II. Facts
[3]
Ms. Ouzkri, a citizen of Morocco, became a
permanent resident of Canada on December 15, 2001. The 66‑year-old
widow was sponsored by her son as a member of the family class. She has five
children, two of whom are Canadian citizens, but during the relevant period, all
of her children resided outside of Canada.
[4]
She maintained her permanent resident status,
but she never worked in Canada and understands neither French nor English
(given her age, she was exempted from the language requirements). In 2004, she applied
for citizenship, but her application was denied because she had not accumulated
the required number of days of residence in Canada, having accumulated only 828
days.
[5]
Four years later, on September 30, 2008,
stating that she had accumulated 1,290 days of physical presence in Canada
since September 30, 2004, she again submitted an application for
citizenship along with two Moroccan passports. The applicant claimed that she
had only been absent from Canada for a period of approximately 170 days, and
that she had therefore accumulated 1,290 days of presence in Canada during the
four years in question. However, she has unable to confirm her presence in
Canada because some of the inscriptions in her passport were unclear.
[6]
Citizenship and Immigration Canada [CIC] asked her
to appear for an interview with a citizenship officer on September 24,
2009. The officer noted that Ms. Ouzkri had arrived from overseas only a
few days before the date of her interview and that it was impossible to
establish her history clearly.
[7]
On March 20, 2012, she was instructed to
attend an interview with a citizenship judge, Veronica Johnson. No interpreter
was provided by the Department, so she relied on a friend. The applicant had
already submitted her residence questionnaire along with photocopies of all of
her valid and expired passports, and she presented the original passports at
the hearing. The citizenship judge nevertheless requested additional evidence.
III. Impugned
decision
[8]
The citizenship judge explained in her decision
that the applicant claimed to have accumulated the required number of days of
residence, but that a careful review of her documents and testimony did not
convincingly establish, on the balance of probabilities, the total number of
days claimed.
[9]
The citizenship judge noted that none of the
applicant’s family members lived in Canada and wondered whether she had really
“centralized her mode of existence” here. She added that it was not possible to
determine whether Canada was the country where the applicant “regularly,
normally or customarily lives”. The burden of proof rested with the applicant,
and she failed to demonstrate that she met the requirements.
IV. Issue
[10]
The issue is whether the citizenship judge’s
decision was reasonable.
V. Standard
of review
[11]
The standard of review is reasonableness (Canada
(Minister of Citizenship and Immigration) v Takla, 2009 FC 1120 at para 39;
Canada (Minister of Citizenship and Immigration) v Naveen, 2013 FC 972 [Naveen],
at paras 13-14).
VI. Analysis
[12]
In my view, the citizenship judge did not err in
the result, even though she misapplied the appropriate residence test. However,
as I noted in my decision in Naveen, above, it seems that these tests
have been causing confusion for a long time.
[13]
The confusion stems from Koo (Re), [1993]
1 FC 286 (TD) [Koo], in
which the Court misinterpreted the number of days of the applicant’s physical
presence in an earlier case, Papadogiorgakis (Re), [1978] 2 FC 208 (TD) [Papadogiorgakis], underestimating
it by nearly 840 days. In other words, the Court in Koo, above,
inadvertently attributed 79 days of physical presence to the applicant in Papadogiorgakis,
above, while the correct number seems to have been at least 921 days.
[14]
Justice Thurlow never intended to make
major changes to the strict principle that a long period of residence in Canada
is required for the acquisition of Canadian citizenship. He was careful to
state that his new test was only to be applied in “a close case”, as indicated
at paragraph 15 of his decision:
15 . . . It
seems to me that the words “residence” and “resident” in paragraph 5(1)(b)
of the new Citizenship Act are not as strictly limited to actual presence in
Canada throughout the period as they were in the former statute but can
include, as well, situations in which the person concerned has a place in
Canada which is used by him during the period as a place of abode to a
sufficient extent to demonstrate the reality of his residing there during the
material period even though he is away from it part of the time. This may not
differ much from what is embraced by the exception referred to by the words “(at
least usually)” in the reasons of Pratte J. but in a close case it may be
enough to make the difference between success and failure for an applicant.
[Emphasis added.]
[15]
The consequences of the incorrect count of the
number of days of residence in Canada in Papadogiorgakis, above, gave
rise to two types of errors. First, Papadogiorgakis is cited as the
decision on which the “centralized mode of living” test was based, which allows
for a very broad interpretation of physical presence. Second, Koo, above,
developed its own very liberal test, giving rise to a long string of cases in
which Canadian citizenship was granted on the basis of very limited physical
presence in Canada.
[16]
I summarized the conclusions to be drawn from Papadogiorgakis,
above, as follows at paragraph 47 of my decision in Naveen:
[47] In summary
therefore, in Papadogiorgakis the Court stated that: (1) it was a modest
change to the previous strict interpretation of residency; (2) the applicant
had physically resided in Canada during five-sixths, or more than 80 percent,
of the three year period required; (3) the applicant had in “reality” resided
in Canada for an additional three years before the commencement of his
citizenship determination period and had already undergone extensive de
facto Canadianization; and (4) as well, the applicant led other probative
evidence demonstrating what the Court meant by centralizing his ordinary mode
of living in Canada, including his total integration into our most Canadian of
institutions - those of family and education - before he left for university in
the United States.
[17]
In this case, there is not enough information to
calculate the applicant’s presence in Canada. Because of the illegibility of
the dates in her passport and the period not documented by a passport, the
citizenship judge had to ask that her presence be verified through additional
means. Unfortunately, the applicant was unable to provide documents or other
information demonstrating that she had lived in Canada during the period in
question.
[18]
After reviewing the file, I conclude that it was
reasonable for the citizenship judge to conclude in light of the facts before
her that the applicant in this case had failed to demonstrate that she had
accumulated the required number of days of presence in Canada. The appropriate
level of deference requires that her decision be upheld (see Dunsmuir v New
Brunswick, 2008 SCC 9 at para 48).
VII. Conclusion
[19]
The
application for judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that the
application for judicial review is dismissed.
“Peter Annis”
Certified true
translation
Francie Gow, BCL,
LLB
Email this Content