Docket:
T-1433-13
Citation: 2014 FC 455
Ottawa, Ontario, May 13,
2014
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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NASRIN PORNEJAD
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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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JUDGMENT AND REASONS
[1]
This is an appeal of a decision of Citizenship
Judge Babcock, dated July 24, 2013, refusing the Applicant’s application for
Canadian citizenship on the basis that she did not meet the requirements in the
Citizenship Act, RSC 1985, c C-29.
[2]
The Applicant listed 350 days of absence from Canada on her application. However, the total days of absence on her Residence
Questionnaire were 377 days, leaving her 12 days short of the required 1095
days of physical presence. At her interview with the Citizenship Judge, she
declared absences totalling 348 days, but on the Citizenship Judge’s own
calculation based on the Applicant’s stated dates at the hearing, she was
absent for 387 days. In her affidavit before this Court, the Applicant
corrected “errors” in both her original application and her Residence
Questionnaires. Accounting for these errors, she now says that her absence
from Canada during the relevant period totals 330 days.
[3]
The Citizenship Judge determined that there was
insufficient evidence for him to be able to calculate the Applicant’s actual
physical presence in Canada. He noted the following:
1.
There were several entrance and exit stamps in
the Applicant’s passport following the date of her citizenship application but
before the Residence Questionnaire was received and that none of these trips
were documented in the Residence Questionnaire;
2.
At the interview, the Applicant attested to the
fact that all statements on her application and Residence Questionnaire were
true and correct;
3.
There were trips stated on the application but
not stated on the Residence Questionnaire;
4.
Entrance stamps into Canada corresponding to
certain trips into and out of Iran and Mexico could not be found in the
Applicant’s passport; and
5.
The Applicant provided various indicators of
passive residence including various bills, mortgage documents, Notices of
Assessment from the CRA, and bank statements, but many of these were not
conclusive of physical presence.
Based on the above
information, the Citizenship Judge was not satisfied that it was possible to
determine with any accuracy, the number of days the Applicant had been present
in Canada.
[4]
The Applicant submits that the Citizenship Judge
breached the duty of fairness owed to her by:
1.
Failing to conduct a follow-up interview despite
indicating at the end of the first interview that he would like to meet with
her again;
2.
Considering absences outside of the relevant
period, an irrelevant consideration; and
3.
Making an implicit negative credibility finding
without providing the Applicant an opportunity to address his concerns.
[5]
I have concluded that this appeal must be
dismissed.
[6]
In my view, the rejection of the application on
the finding of the Citizenship Judge that it was impossible to determine with
any accuracy the number of days the Applicant had been present in Canada was
not only reasonable, it was the only conclusion that reasonably could have been
made.
[7]
The Applicant submits that if the Citizenship
Judge had not breached his duty of fairness in failing to obtain the information
from CBSA and conduct a follow-up interview, then he may have been persuaded to
apply one of the other tests of residency rather than use the strict count of
days test.
[8]
However, assuming without deciding that there
was a breach of fairness on the part of the Citizenship Judge, the fact remains
that the application was dismissed because the Citizenship Judge found, based
on the information before him and the personal interview, that he was “unable to calculate the actual physical presence of the
applicant” in Canada. There is nothing in the
record to suggest that information from CBSA or a follow-up interview would
have changed that finding.
[9]
Regardless of which residency test is used, one
must first determine the number of days that an applicant was actually present
in Canada. Some of the tests other than the physical presence test look at
other qualitative factors, but in all cases, there must be some baseline in
terms of the number of days of actual physical presence. For example, the test
articulated in Koo (Re), [1993] 1 FC 286, requires the Court to
consider, among other things, “the extent of the
physical absences.” The “centralized mode of
living test” articulated in Papadogiorgakis (Re), [1978] 2 FC 208,
requires the Court to consider whether an applicant is nonetheless “resident in Canada” during
the periods in which they are absent from Canada. Both of these considerations
still require the applicant to at least establish when they were actually
absent, and for how long.
[10]
Moreover, an applicant must establish that he or
she has established residence in Canada and that is simply not possible where,
as here, it cannot even be determined when the Applicant was present and when
she was absent.
[11] For these reasons, even if I had
found that there was a breach of natural justice in this case, I would not have
sent the application back for re-determination as the outcome would necessarily
have been the same. The appeal must be dismissed as it is not possible to
determine the Applicant’s days of residence in Canada.
[12] The Applicant sought $1,000 in
costs if successful; the Respondent sought $500 in costs. In the circumstances
and in the exercise of my discretion I award the Respondent the costs it
sought.
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