Date: 20070320
Docket: T-2197-05
Citation: 2007 FC 299
Ottawa, Ontario, March 20,
2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
ZAHRA
MOHAMMADGHASEMI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. OVERVIEW
[1]
A
Citizenship Judge rejected the Applicant’s application for citizenship on the
grounds that she had not met the residency requirements of “regularly, normally
or customarily lives” as articulated in Koo (Re) T.D., [1993] 1 F.C. 286.
The Applicant was found to be at least 297 short of the 1,095 days present in Canada normally
required to qualify for citizenship.
II. BACKGROUND
[2]
The
Applicant, along with her husband and two daughters, entered Canada from Iran and was
admitted as a permanent resident in March 1999. Her daughters were granted
Canadian citizenship. Her husband lost his permanent resident status, was
successful in the appeal of that decision and his status is under review.
[3]
The
Applicant’s husband has owned and operated a number of restaurants in Canada as well as
purchased a number of properties for development purposes. The Applicant is
said to reside in a condominium in Toronto. Both the Applicant and
her husband have returned frequently to Iran.
[4]
The
Applicant applied for citizenship in April 2003. As part of the investigation
by Citizenship officials, the Applicant was required to provide a translated
version of the pages of her passport. Following a review of those translated
pages, a hearing was requested by the Respondent due to discrepancies between
the number of days of presence in Canada described in the citizenship
application and the days outside Canada recorded in the
passport.
[5]
The
Citizenship Judge noted that although only 172 days of absence from Canada was listed
in the citizenship application, the passport disclosed an additional 662 days
of absence. Furthermore, there were stamps in the passport that could not be
accounted for and which suggested additional days of absences from Canada. An
additional period of absence, not defined, was noted in respect of the
extension of her passport while in Tehran.
[6]
The
other documentary evidence of residence included her husband’s successful
appeal of his residence status, rental receipts and tenancy agreements for her
residence in Canada, an agreement to purchase two Canadian properties, her
daughters’ Canadian citizenship cards and her granddaughter’s Canadian birth
statement.
[7]
The
Citizenship Judge applied the test in Re Koo that held that one need not
be physically present in Canada for the whole 1,095 days (three out of four
years of claimed residency) so long as an applicant established Canada as the
place where he/she “regularly, normally or customarily lives” or where an
applicant has “centralized the mode of existence”.
[8]
The
Judge found the Applicant had left Canada frequently, had few
family connections here (one daughter - the other was studying in the U.K.) and had
only acquired limited English skills. The Judge also noted that despite the
requirement to confirm that the contents of her application were “true, correct
and complete”, there were significant discrepancies as to her absences.
Therefore, the Judge would not approve the Applicant’s application and declined
to make the discretionary recommendation under s. 5(3) and (4) of the Citizenship
Act.
[9]
In
addition to the Applicant’s challenge to the decision on residency
requirements, the Applicant raised a denial of natural justice/procedural
fairness and of fear. This grounds of review was based on the existence in the
Certified Tribunal Record of a FOSS note on her husband’s file that suggested
that the husband, in particular, but the family as well, were less than
truthful about their residency and should be examined closely. This document
was not disclosed to the Applicant.
III. ANALYSIS
[10]
The
standard of review has, at times in this Court, varied between reasonableness
and correctness. In this case, the applicable standard makes no difference to
the result.
[11]
There
has been case law which suggests that it is open to a Citizenship Judge to
adopt any one of several methods of analyzing “residency”. This is an
unsatisfactory and arbitrary approach to an issue which is so important to the
individual and to the Canadian public. Citizenship is a matter of fundamental
importance to a country, its significance is recognized in the Charter.
It seems incongruous that the matter can be decided on such a fluctuating basis
dependent on which approach a Citizenship Judge wishes to adopt. In my view,
the Citizenship Judge was correct in adopting the Re Koo test.
[12]
It
is particularly telling that the Applicant was, at the bare minimum,
approximately 30% short of the requisite 1,095 days with ample evidence to
suggest that this shortfall was even greater.
[13]
It
is also important that the shortfall was discovered only after the Applicant
was required to translate the pages of her passport. The evidence would suggest
that, given the magnitude of the shortfall, the Applicant had not been
forthright in her efforts to secure citizenship. One can hardly criticize the
Judge for not making a favourable discretionary recommendation.
[14]
While
there is no question that a person must be entitled to confront the evidence
against him/her, there must be an air of reality to the claim of procedural
unfairness. The FOSS notes were, firstly, directly against the husband, and
secondly, raised the very issues which were put to the Applicant. There was no
unfairness in this situation. The Applicant was accorded an opportunity to
confront the issue of her “residency” even though she had made a false
statement on her application.
[15]
There
is not a scintilla of merit in the allegation that the Citizenship Judge was
either biased or that there was a reasonable apprehension of bias. The
Applicant’s counsel correctly did not press what is, by its nature, a serious
allegation against a decision maker.
[16]
Therefore,
this application for judicial review is dismissed.
JUDGMENT
IT IS ORDERED THAT this
application for judicial review is dismissed.
“Michael
L. Phelan”
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