Date:
20090522
Docket: T-1420-08
Citation: 2009 FC 507
Ottawa, Ontario, this 22nd day of May
2009
Present: The Honourable Mr. Justice
Pinard
BETWEEN:
DEEPTI KOCHAR
Applicant
and
CITIZENSHIP AND IMMIGRATION
CANADA (CIC)
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an appeal, pursuant to subsection 14(5) of the Citizenship Act,
R.S.C. 1985, c. C-29 (the “Act”), of a Citizenship Judge’s decision, dated
August 8, 2008, denying the applicant Canadian citizenship.
* * * * * * *
*
[2]
Deepti
Kochar (the “applicant”) is representing herself on this application. She is a
citizen of India, and arrived in Canada from India on May 5,
2003 as a permanent resident.
[3]
Between
August 30, 2003 and January 25, 2007, the applicant left Canada on several
occasions to visit family in India or to attend training in the United
States.
[4]
On
January 14, 2007, the applicant applied for Canadian citizenship. However, her husband, who had filled
out the application while she was away, miscalculated the number of days she
had spent in Canada, coming up with the figure of 1,286, having forgotten to
exclude certain periods when she was in the United States.
[5]
When
the applicant learned of this mistake, she decided to withdraw her application.
She was counseled, however, by a Citizenship officer to recalculate the number
of days she had resided in Canada: if they amounted to less than 1,095, she should withdraw,
but if they added up to more than 1,095, then she should pursue her application
and explain the discrepancy to the judge. The applicant’s recalculation gave
her a total of 1,096; she therefore decided not to withdraw her application.
[6]
The
hearing
before the Citizenship Judge took place on June 20, 2008. At the
conclusion of the hearing, the Citizenship Judge granted the applicant an
additional 21 days to submit supporting documents to demonstrate her physical
presence in Canada. The
applicant signed a document stating she would provide additional evidence (i.e.,
proof of employment, proof of domicile, school records, personal health records,
banking records, and, medical records) to the Citizenship Judge by July 11,
2008.
[7]
On
June 23, 2008, the applicant called the Ministry of Health requesting the
records, but was told that it would take at least a month to obtain them. She
claims she was also told that the Citizenship Judge would be aware of this.
[8]
The
applicant subsequently called the Ministry of Citizenship and Immigration
(“CIC”), informing CIC of the Citizenship Judge’s request that she submit
health records by July 11, and of the Ministry of Health’s statement that this
was not possible. She also mentioned that she had moved temporarily to Surrey, British
Columbia.
When asked, CIC indicated that they had no record of a meeting between the applicant
and the Citizenship Judge on July 11. It was suggested that she change the
address on her file and have it moved to Surrey.
[9]
The
applicant was in the process of waiting for her file to be moved to Surrey when she
received the Citizenship Judge’s decision.
* * * * * * *
*
[10]
In
a letter dated August 8, 2008, the Citizenship Judge informed the applicant of
her decision to reject her application for Canadian citizenship because she had
not submitted sufficient proof of residence to meet the requirements of
paragraph 5(1)(c) of the Act, which requires at least three years of
residence within the four years preceding the date of the application. The
applicant had been given 21 days to submit supporting documents, but 49 days
had passed at the time of the decision, and no documents had yet been received.
[11]
The
Citizenship Judge concluded that no evidence had been provided at the hearing
of special circumstances warranting a recommendation that the Minister exercise
his discretion under subsections 5(3) and 5(4) of the Act.
* * * * * * *
*
[12]
Citizenship
appeals are not trials de novo, but instead proceed by way of
application based on the record before the Citizenship Judge (Canada
(M.C.I.) v. Hung, [1998] F.C.J. No. 1927 (T.D.) (QL), 47 Imm.L.R. (2d) 182,
at paragraph 8). Exhibit A of the applicant’s affidavit of October 10, 2008, as
well as Exhibits G and H of her affidavit of October 8, 2008, cannot therefore
be given any consideration by this Court, as they were not before the
Citizenship Judge.
[13]
The
applicant argues that she was denied Canadian citizenship because of a breach
of procedural fairness and misinterpretation of the law, on the part of the
Citizenship Judge. She does not provide legal arguments in support of her
allegations, but instead recites the events leading up to this appeal.
[14]
I
gather from the applicant’s Memorandum of Argument that, in her view, the
Citizenship Judge was unreasonable in expecting her to produce the requested
medical records within 21 days, when it appears to have been well known that at
least a month would be required to obtain them.
[15]
However,
the Certified Record discloses that, on June 20, 2008, the applicant and the
Citizenship Judge signed a document wherein the applicant acknowledged that she
would present to the Citizenship Judge documentation identified in a checklist
on or before July 11, 2008. Moreover, she appended her signature beneath a line
reading as follows: “I understand that should such documentation not be
provided, my Citizenship Application may be non-approved by the Judge”.
[16]
It
was, therefore, incumbent upon the applicant to formally request an extension
of time, based on the information she received from the Ministry of Health about
the expected delay in obtaining the documents. The applicant may well have relied
upon her communication with CIC to release her from the July 11th
deadline. Unfortunately, this conversation did not lead to a request for
additional time.
[17]
In
my view, there was no breach of procedural fairness in this regard.
[18]
The
applicant also appears to contest the reasonableness of the decision itself,
insisting that she met the residency requirement. The assessment of residency
under paragraph 5(1)(c) of the Act involves a mixed question of fact and
law, and therefore attracts review on a reasonableness standard. In The
Minister of Citizenship and Immigration v. Khzam, 2001 FCT 513, [2001]
F.C.J. No. 800 (QL), I stated, as I have stated on several other occasions:
[5] This
Court has held that a correct interpretation of s. 5(1)(c) of the
Act does not require an individual to be physically present in Canada throughout the 1,095 [-day]
period prescribed when special and exceptional circumstances exist. However, I
consider that actual presence in Canada is still the most relevant and
important factor in establishing whether a person was “resident” in Canada within the meaning of this
provision. As I have said many times, an unduly long absence, though
temporary, during this minimum period is contrary to the spirit of the Act,
which already allows a person legally admitted to Canada as a permanent
resident not to reside in Canada for one of the four years preceding the date
on which he or she applies for citizenship.
[My emphasis.]
[19]
In
this case, the Citizenship Judge appears to have applied the most stringent of
the available tests, namely the physical residency requirement, which requires
an applicant to prove physical presence in Canada for a
minimum of 1,095 days within the four years preceding her application for
citizenship. In the letter informing the applicant of her decision, the
Citizenship Judge essentially disposes of the matter in the following sentence:
Although you stated in your application
that you were physically present in Canada
during the relevant period for 1,286 days, you failed to provide this office with
proof of residence in Canada and related documentation.
[20]
The
Certified Record (at page 22) includes the results generated by the applicant
using a Residence Calculator, an on-line tool provided by CIC to assist
would-be applicants to determine whether they are eligible to apply for
Canadian citizenship. The applicant obtained a total of 1,096 days, one day
over the minimum. The Citizenship Judge appears to have marked out that total
and replaced it with 1,085 days, based on a discrepancy in the application date
indicated. This brought the applicant’s numbers down so that she was 11 days
shy of the minimum.
[21]
Notably,
other evidence provided by the applicant at the hearing was not referred to in
the decision. This includes evidence of car insurance, credit card account
history, employment and earnings, tax returns from 2004 to 2007, her daughter’s
2006 birth certificate, and copies of the applicant’s passport.
[22]
I
am not satisfied that the decision in question provides sufficient detail to
allow me to assess the basis on which the applicant fell short of the minimum
residency requirement. The Citizenship Judge seems to have relied heavily, if
not exclusively, on the Residence Calculator in reaching her result. Even
though the Citizenship Judge was entitled to apply the stringent physical
residence test, she nevertheless had a duty to apply it based on all the
evidence before her, including the oral testimony of the applicant and the
documents provided by her at the hearing. There is no indication that she did
this. She has not applied that test correctly, which allows me to consider
another less stringent, but valid, test also accepted by the Court. Indeed, although
physical presence is a crucial factor in determining residency, as I have
stated, a shortfall of 11 days cannot be said to constitute a “considerable
absence” that necessarily runs contrary to the spirit of the Act. Under the
circumstances, the evidence submitted by the applicant before the Citizenship
Judge, viewed as a whole, was sufficient to grant the applicant Canadian
citizenship. The applicant’s failure to submit the requested new evidence in a
timely manner did not, in my view, free the Citizenship Judge from her
obligation to provide adequate justification for her decision, given the
evidence actually in her possession.
[23]
Consequently,
the application for judicial review is granted. Given the particular
circumstances of this case and my above findings, I see no purpose in sending
the applicant’s request for Canadian citizenship back for “re-determination” by
another Citizenship Judge. In my opinion, the expenditure of time and resources
in doing so would be inordinate. I find that the interests of justice require
me to return the matter to the same Citizenship Judge, and if unavailable, to
another duly designated Citizenship Judge, with the direction to simply grant,
as soon as possible, the applicant Canadian citizenship.
JUDGMENT
The application for judicial
review of the decision of a Citizenship Judge, dated August 8, 2008, is
allowed. The interests of justice require me to return the matter to the same
Citizenship Judge, and if unavailable, to another duly designated Citizenship
Judge, with the direction to simply grant, as soon as possible, the applicant
Canadian citizenship.
“Yvon
Pinard”
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