Docket:
T-1471-13
Citation: 2014 FC 181
Toronto, Ontario, February
26, 2014
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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NINA KNEZEVIC
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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]
For the purpose of fulfilling the requirements
of acquiring citizenship, although more than one test exists according to the
jurisprudence, it is incumbent on an applicant to demonstrate by objective
evidence, establishment of residence in Canada. This Court has held that the
tests for residency must be applied properly and coherently. Once demonstrated,
a Citizenship Judge has the discretion to determine which test to apply,
whether one which is qualitative or quantitative.
[2]
Unless circumstances specifically warrant a
quantitative approach to acquiring citizenship, long absences from Canada
during the minimum period of time by which to acquire citizenship are contrary
to the very spirit of the legislation as derived by the Parliament of Canada (Savarian
v Canada (Minister of Citizenship and Immigration), 2010 FC 1117). Having
chosen the physical presence test under the present circumstances of the case,
the Citizenship Judge was not required to consider otherwise.
[3]
This judgment is in response to an application
for judicial review of a decision rendered on July 4, 2013 by a Citizenship
Judge who denied the Applicant’s application for Canadian citizenship as per
the Citizenship Act, RSC, 1985, c C-29, paragraph 5(1)(c).
[4]
It is the Court’s determination that the
Citizenship Judge did not commit any reviewable error in the rejection of the
Applicant’s citizenship application. A reading of the Citizenship Judge’s
decision clearly demonstrates that the application was dismissed on the basis
of fact and law.
[5]
The Citizenship Judge clearly stated that the
Applicant “did not meet the requirements of paragraph 5(1)(c) of the Citizenship
Act. Under paragraph 5(1)(c) of the Citizenship Act an
applicant is required to have accumulated at least three years of residence in
Canada within the four years immediately preceding his or her application”.
[6]
Furthermore, the Citizenship Judge wrote: to “meet
the residence requirements you were requested to provide additional documents.
Unfortunately the documents that you submitted were, in my opinion, not
satisfactory proof of residence in Canada. I have come therefore to the
conclusion that you did not meet the residence requirement as defined in
paragraph 5(1)(c) of the Citizenship Act.”
[7]
The obligation of the Citizenship Judge was to
ensure a correct interpretation of the statutory provision. It is the Court’s
view that it was within the discretion of the Citizenship Judge to dismiss the
citizenship application of the Applicant on the basis of the evidence; the
judge, subsequent to a review of the evidentiary record, could not ascertain
the dates on which the Applicant was, in fact, physically present in Canada. It
was, therefore, reasonable on the evidentiary record for the judge to render
the decision that ensued.
[8]
The Court does not find that the Citizenship Judge
erred and, therefore, the appeal is dismissed.
[9]
The Applicant, a citizen of Serbia and Slovenia, arrived in Canada on August 20, 2004 and became a permanent resident on March
6, 2006. She applied for citizenship on June 18, 2009.
[10]
The Applicant’s application demonstrated a basic
residence of approximately 1330 days in the period in question. In the
citizenship application “absences from Canada” are listed as 234 days but on
the same list of absences the total absences from Canada is stated as 334 days.
[11]
No clear passport explanations on problematic
stamps and potential unclear lines of chronology were provided for the
pertinent continuous period, only part of that period was provided for by the
documentation. Therefore, the required physical presence requirement of 1095
days as required by the relevant provision of the Citizenship Act was
not considered acceptable.
[12]
Subsequent to an examination of the Applicant’s
application, Residence questionnaires and passports, the Citizenship Judge
could not ascertain the number of days of actual physical presence of the
Applicant in Canada (all in accordance with jurisprudence of this Court, such
as, Fadi Atwani v Canada (Minister of Citizenship and Immigration), 2011
FC 1354).
[13]
The burden is on the Applicant to establish
clear and compelling evidence as to the number of days of residence. The
Applicant, as per the record, did not provide such clear evidence in this
regard.
[14]
For the purpose of fulfilling the requirements of
acquiring citizenship, although more than one test exists according to the
jurisprudence, it is incumbent on an applicant to demonstrate by objective
evidence, establishment of residence in Canada. This Court has held that the
tests for residency must be applied properly and coherently. Once demonstrated,
a Citizenship Judge has the discretion to determine which test to apply,
whether one which is qualitative or quantitative.
[15]
Unless circumstances specifically warrant a
quantitative approach to acquiring citizenship, long absences from Canada
during the minimum period of time by which to acquire citizenship are contrary
to the very spirit of the legislation as derived by the Parliament of Canada (Savarian,
above). Having chosen the physical presence test under the present
circumstances of the case, the Citizenship Judge was not required to consider
otherwise.
[16]
Explanations brought before this Court were
not before the Citizenship Judge. That which was provided by way of
questionnaire and documents of the Applicant did not assist in the calculation which
was needed to provide clarity where ambiguity remained. Lines of chronology in
respect of calculations were necessary to synchronize evidentiary documentary
material with information extracted from the Residence Calculator.
[17]
It is also duly noted that the Applicant is
considered to be an informed, educated individual with a post graduate degree.
It was her onus to respond to the requirements of the citizenship legislation
as discussed above. (Thereupon, it is for the Applicant to reapply once she
qualifies for citizenship, if she so qualifies.)
[18]
On the basis of the record which was before the
Citizenship Judge, and no other than that, a reasonable decision, under the
circumstances, was rendered on the basis of fact and law.
[19]
Therefore, the appeal is dismissed.
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