Bogdanovich v. Canada (Minister of Citizenship and Immigration), 2001 FCT 729

                                                                                  Date: 20010629

                                                                            Docket: T-1214-00

                                                       Neutral Citation: 2001 FCT 729

BETWEEN:

                      MARTIN JOSEPH BOGDANOVICH

                                                                                            Applicant

                                                 - and -

   THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                        Respondent

                    REASONS FOR ORDER AND ORDER

HENEGHAN J.

[1]    Mr. Martin Bogdanovich (the "Applicant") appeals from the decision of Citizenship Judge Marguerite Ford dated June 5, 2000. In her decision, the Citizenship Judge denied the Applicant's request for citizenship.

[2]    The Applicant arrived in Canada as a landed immigrant in December 1995. He stayed in the country for a few days before leaving for a period of seventy-one days. The Applicant spent a total of 909 days outside Canada within the four years immediately preceding his application for Canadian citizenship. This represents a shortfall of 607 days from the overall total of 1095 days for which an applicant must show "residence" in Canada.

[3]    The Applicant raises two issues in this appeal. First, he alleges that the Citizenship Judge erred in applying the test for meeting the requirement of establishing residence in Canada. He says that she failed to follow the approach set out in Lam v. Canada (Minister of Citizenship and Immigration) (1999), F.T.R. 177 (T.D.). At paragraph 14, Justice Lutfy (as the then was) said as follows:

...In my opinion, it is open to the citizenship judge to adopt either one of the conflicting schools in this court and, if the facts of the case were properly applied to the principles of the chosen approach, the decision of the citizenship judge would not be wrong.

[4]    The Applicant argues that the Citizenship Judge failed to clearly outline the test she was applying in relation to his establishment of residence in Canada and confused two tests, that is the test of constructive residence and the test of strict calculation of days spent in Canada. Alternatively, the Applicant submits that the Citizenship Judge erred by failing to find that he had met the test for constructive residence, pursuant to Re Koo (1999), 163 F.T.R. 152 (T.D.) on the basis of the evidence before her.

[5]                The Respondent argues that the Citizenship Judge properly applied the right test and did not err in her assessment of the evidence.

[6]                In my opinion, this appeal should be granted on the ground that the reasons of the Citizenship Judge do not clearly demonstrate that she applied a recognized test for the determination of the Applicant's application. Her decision contains the following paragraph:

Case law has established that the residence requirement set out in the Citizenship Act does not require physical presence for the whole 1095 days, but rather; Is Canada the place where the applicant regularly, normally or customarily lives? Recent decisions of the Federal Court have tended to emphasize physical presence.

[7]                This is not a clear and unambiguous statement as to the test applied in this case. For that reason the appeal is allowed and the matter is returned to a different Citizenship Judge for determination.

                                               ORDER

The appeal is allowed and the matter is returned to a different Citizenship Judge for determination.

"E. Heneghan"

                                                                                               J.F.C.C.                     

OTTAWA, Ontario

June 29, 2001