Date: 20091026
Docket: T-168-09
Citation: 2009 FC 1079
Ottawa, Ontario, October 26,
2009
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
ERIKA
NINO VEGA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
application is an appeal of the decision (the Decision) of a Citizenship Judge
dated December 11, 2008 wherein it was decided to refuse the Applicant’s
application for Canadian Citizenship.
[2]
The
Applicant takes the position that the Decision was deficient and that the
Citizenship Judge ignored evidence and failed to consider if the Applicant was
a resident in Canada even if she
was physically absent for a portion of the relevant period. The Respondent
argues that there was no error in the Citizenship Judge’s decision or reasons
and the appeal should be dismissed.
[3]
For
the reasons set out below the appeal is dismissed.
I. Background
[4]
The
Applicant is a 32-year-old citizen of Mexico who is married to a
Canadian citizen and has a Canadian born child. She became a landed immigrant
on June 24, 2003 and applied for Canadian citizenship on May 10, 2007. In
support of her application, the Applicant provided, inter alia, her
healthcare records, T-1 Summaries for the tax years 2002-2006, and proof of
educational status. Initially there was an issue with the period used to
calculate the number of days of physical presence in Canada. However,
the Applicant did not take issue with the Citizenship Judge’s calculation of
physical days in Canada in her Memorandum of Fact and Law. Therefore,
this issue will not be addressed.
[5]
In
her citizenship application the Applicant declared 500 days of absences from Canada that were
re-calculated by Citizenship and Immigration Canada (CIC) to 503 days. The
Applicant was therefore present in Canada for 935 days during the
relevant time period, June 24, 2003 to May 10, 2007. The Applicant
appeared before the Citizenship Judge on August 1, 2008.
[6]
The
Citizenship Judge provided the Applicant with three pages of reasons for the Decision
to not approve her citizenship application. The reasons briefly summarized the
documentary and oral evidence presented at the hearing and then set out the
relevant issue as “if the Applicant had accumulated at least three years of
residence in Canada within the
fours years immediately preceding the date of the citizenship application”.
[7]
In
the analysis section of the reasons the Citizenship Judge calculated that the
Applicant had 935 days of physical presence in Canada and
described the residency requirement under the Citizenship Act, R.S.C.
1985, c. C-29 (the Act). The Citizenship Judge then stated that there is
Federal Court jurisprudence which does not the require physical presence of the
applicant for citizenship for the entire time period, but that too long an
absence from Canada, during the minimum period set out in the Act, is contrary
to the purpose of the residence requirement. The Citizenship Judge found that
the Applicant was 160 days short of the required 1,095 days of residency in Canada and
indicated that she found no compelling reasons to reduce or waive the strict
residency requirement.
[8]
The
reasons then set out the decision and advised the Applicant of her rights to
appeal or
re-apply.
II. Standard
of Review
[9]
The
applicable standard of review regarding a Citizenship Judge’s determination of
whether the Citizenship applicant met the residency requirement is
reasonableness (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190; Pourzand v. Canada (Minister of Citizenship
and Immigration), 2008 FC 395, 71 Imm. L.R. (3d) 289 per Justice James
Russell at paragraph 19). Procedural fairness questions and the adequacy of
reasons are questions of law reviewable on a correctness standard (Pourzand,
above, at paragraph 21).
III. Issues
A. The
Residency Test
[10]
Section
5(1) of the Act sets out the necessary criteria for obtaining citizenship.
Section 5(1)(c) requires that a person accumulate at least three years, or
1,095 days, of residence within the four years immediately preceding the date
of his or her application for citizenship.
|
Grant
of citizenship
5.
(1) The Minister shall grant citizenship to any person who
(a) makes application for citizenship;
(b) is eighteen years of age or over;
(c) is a permanent resident within the
meaning of subsection 2(1) of the Immigration and Refugee Protection Act, and
has, within the four years immediately preceding the date of his or her
application, accumulated at least three years of residence in Canada calculated
in the following manner:
(i) for every day during which the
person was resident in Canada before his lawful admission to Canada for
permanent residence the person shall be deemed to have accumulated one-half
of a day of residence, and
(ii) for every day during which the
person was resident in Canada after his lawful admission to Canada for
permanent residence the person shall be deemed to have accumulated one day of
residence;
[Emphasis added]
(d) has an adequate knowledge of one of
the official languages of Canada;
(e) has an adequate knowledge of Canada and of the responsibilities
and privileges of citizenship; and
(f) is not under a removal order and is
not the subject of a declaration by the Governor in Council made pursuant to
section 20.
|
Attribution
de la citoyenneté
5.
(1) Le ministre attribue la citoyenneté à toute personne qui, à la fois:
a) en fait la demande;
b) est âgée d’au moins dix-huit ans;
c) est un résident permanent au sens du
paragraphe 2(1) de la Loi sur l’immigration et la protection des réfugiés et
a, dans les quatre ans qui ont précédé la date de sa demande, résidé au
Canada pendant au moins trois ans en tout, la durée de sa résidence étant calculée
de la manière suivante:
(i) un demi-jour pour chaque jour de
résidence au Canada avant son admission à titre de résident permanent,
(ii) un jour pour chaque jour de
résidence au Canada après son admission à titre de résident permanent;
[Je souligne]
d) a une connaissance suffisante de
l’une des langues officielles du Canada;
e) a une connaissance suffisante du
Canada et des responsabilités et avantages conférés par la citoyenneté;
f) n’est pas sous le coup d’une mesure
de renvoi et n’est pas visée par une déclaration du gouverneur en conseil
faite en application de l’article 20.
|
[11]
The
Act does not define "residency". As outlined by Justice Danièle
Tremblay-Lamer in Mizani v. Canada (Minister of Citizenship
and Immigration), 2007 FC 698, [2007] F.C.J. No. 947 at paragraph 10,
the Court’s interpretation of "residence" can be grouped into three
categories. The first views it as actual, physical presence in Canada for a
total of three years, calculated on the basis of a strict counting of days (Pourghasemi
(Re) (1993), 62 F.T.R. 122,19 Imm. L.R. (2d) 259 (T.D.)). A less stringent
reading of the residence requirement recognizes that a person can be resident
in Canada, even while temporarily absent, so long as he or she maintains a
strong attachment to Canada (Antonios E. Papadogiorgakis (Re),
[1978] 2 F.C. 208 (T.D.), 88 D.L.R. (3d) 243). A third interpretation, similar
to the second, defines residence as the place where one "regularly,
normally or customarily lives" or has "centralized his or her mode of
existence" (Koo (Re), [1993] 1 F.C. 286 (T.D.), 19 Imm. L.R.
(2d) 1 at paragraph 10).
[12]
The
Applicant argued at paragraph 10 of her Memorandum of Fact and Law that:
[…] the jurisprudence of this
Court indicates very clearly that where a Citizenship Judge concludes an
applicant has not met the residency requirement by being physically present in
Canada for the required three years, the judge must then consider
whether the applicant had met the residency requirement by centralizing her
mode of living in Canada by applying the test set out in Re Koo or
another test recognized as validly the jurisprudence.
[Emphasis added]
[13]
This
is not the case. The Citizenship Judge is required to apply one of the three
tests to determine whether an applicant has met the residency requirement. They
are not required to run through the three tests to see if one “fits”. It is
also not open to the Citizenship Judge to "blend" the tests (Mizani,
above, paragraphs 12-13). The onus is on the citizenship applicant to provide
sufficient objective evidence to demonstrate they have met the residency requirements
(Mizani, above, at paragraph 19 per Justice Tremblay-Lamer, see also Canada
(Minister of Citizenship and Immigration) v. Italia, [1999] F.C.J. No. 876,
89 A.C.W.S. (3d) 22 at paragraph 14).
B. The
Reasons Provided
[14]
The
facts in this matter are similar to those addressed by Justice Max Teitelbaum in
Islam v. Canada (Minister of
Citizenship and Immigration), 2009 FC 10, 77 Imm. L.R. (3d) 146. In Islam,
above, the Applicant appealed from a Citizenship Judge’s decision that she did
not meet the residency requirements with the result that her application for
citizenship was denied. I note that a portion of the Citizenship Judge’s
reasons in this matter is similar to the reasons reviewed by Justice
Teitelbaum. At paragraph 23 of Islam, above, Justice Teitelbaum held
that the Citizenship Judge’s reasons were not entirely clear on which test he
was applying and allowed the appeal.
[15]
While
a portion of the Citizenship Judges reasons in Islam, above, is similar
to those used in this case, I find that it was clear the physical presence test
was being applied in this matter. The Citizenship Judges stated that the
Applicant did not have the correct number of days of physical presence in Canada to meet the
requirements. At page two of the Decision, the Citizenship Judge wrote:
I have determined that you
were absent 503 days, during the relevant period, leaving you with a
physical presence in Canada of 935 days. The calculation (1,095-935)
leaves you 160 days short of the minimum required 1,095 days as per the Act. You
failed to provide consistent and convincing proof of residency in the relevant
period.
[16]
It
was clear from the reasons that the Citizenship Judge applied the physical
presence test.
[17]
The
Applicant further argues that reasons where deficient as they merely stated the
tribunal’s conclusion and that important documentary evidence was ignored. The
Respondent argues that the Citizenship Judge did not address evidence of
connection and ties with Canada as the physical presence test was used to
determine residency and therefore such evidence was not relevant to the test
applied.
[18]
The
Citizenship Judge provided the Applicant with three pages of reasons for the
Decision. As the Citizenship Judge used the physical presence test the Decision
was based on the calculation of the number of days of physical presence in Canada and not a
detailed analysis of various factors. The method of calculating this number and
the answer was provided to the Applicant. The reasons provided the Applicant
with the basis for the Citizenship Judge not approving her application in
sufficient detail and the Applicant was able to commence an appeal. There was
no failure to provide reasons.
[19]
The
Citizenship Judge did not err by not considering the evidence of ties to Canada as the physical
presence test was used. The evidence provided by the Applicant with regard to
her family ties and her employment are not relevant to the physical presence
test and therefore it was not an error to ignore this evidence in the reasons.
JUDGMENT
THIS COURT ORDERS
AND ADJUDGES that:
1. the appeal is dismissed; and
2. there is no Order as to costs.
“ D.
G. Near ”
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