Date:
20130702
Docket:
T-21-13
Citation: 2013
FC 732
Ottawa, Ontario, July 2, 2013
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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MAHTIS MOSHIRZADEH MOAYEDI
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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
I. Overview
[1]
Ms
Mahtis Moayedi, a citizen of Iran, applied for Canadian citizenship in April
2010. Under Canadian law, an applicant must be resident in Canada for three out of the four years preceding the application (Citizenship Act, RSC 1985,
c C-29, s 5(1)(c) – see Annex for provisions cited). A citizenship judge
found that Ms Moayedi had not fulfilled that requirement. She argues that the
judge made an error of law by applying the wrong test of residency and rendered
an unreasonable decision. She asks me to quash it.
[2]
In
my view, the citizenship judge’s decision was not unreasonable. The judge
applied the correct test and took account of all the relevant facts and
criteria. Therefore, I cannot overturn the judge’s decision.
[3]
There
are two issues:
1. Did the
citizenship judge apply the correct test?
2. Did the
citizenship judge render an unreasonable decision?
II. The Citizenship
Judge’s Decision
[4]
The
judge summarized the relevant facts. Among the most pertinent were these:
• Ms
Moayedi arrived in Canada in 2001 and attended the University of Calgary until her graduation in June 2006;
• She
acquired permanent resident status on April 17, 2008;
• She
married a Canadian citizen on September 17, 2006; they lived in Alberta in rented accommodation and then in a condominium they purchased together;
• She
applied for citizenship on April 23, 2010, making the relevant period of
residence from April 23, 2006 to April 23, 2010;
• Each
day of her residence in Canada from April 23, 2006 to April 17, 2008, the date
on which she acquired permanent residence, could only be counted as a half-day
of residence according to the Citizenship Act, s 5(1)(c)(i);
• Soon
after she acquired permanent residence, Ms Moayedi left Canada to live with her husband in Texas – she stayed there from May 13, 2008 to June 14, 2009;
• Ms Moayedi
left Canada again in July 2010 to work in the United States;
• She
flew back to Canada for a few days in September 2012 for her citizenship hearing;
• Her husband
continues to work in the US;
• Ms Moayedi
was 407 days short of the required 1,095 days of residence.
[5]
The
judge applied the test in Re Koo, [1993] 1 FC 286 (FCTD), which involves
the weighing of six factors:
(1) Was the
individual physically present in Canada for a long period prior to recent
absences which occurred immediately before the application for citizenship?
[6]
The
judge found that Ms Moayedi had been physically present in Canada for several years prior to the relevant period, with only one short absence of 23 days.
(2) Where are
the applicant’s immediate family and dependents resident?
[7]
Ms
Moayedi lived with her husband in Canada for about eighteen months after their
marriage in September 2006 before he moved to the US. He moved back to Canada in June 2009 but returned to the US in November 2009 and is still there. Her parents and
brother live in Iran. Her sister, as well as her husband’s parents and brother,
are Canadian citizens and live here.
(3) Does the
pattern of physical presence in Canada indicate a returning home or merely
visiting?
[8]
The
judge found that Ms Moayedi’s trips to Canada largely exhibited a returning
home, except when she was actually living the US in 2008 to 2009. In June 2009,
she returned home.
(4) What is
the extent of the physical absences? If an applicant is only a few days short
of the 1,095 day total it is easier to find deemed residence than if those
absences are extensive.
[9]
The
judge found that Ms Moayedi’s shortfall of 407 days was extensive.
(5) Is the
physical absence caused by a clearly temporary situation such as employment as
a missionary abroad, following a course of study abroad as a student, accepting
temporary employment abroad, or accompanying a spouse who has accepted temporary
employment abroad?
[10]
The
judge noted that Ms Moayedi’s absence from Canada in 2008 and 2009 to be with
her husband in the US appeared to be temporary. Both she and her husband
returned to Canada in 2009. However, given that her husband returned to the US in November 2009 and has remained there suggests that her absence from Canada is not a clearly
temporary situation. She went back to the US in 2010 to be with him.
(6) What is
the quality of the connection with Canada: is it more substantial than that which
exists with any other country?
[11]
The
judge noted Ms Moayedi’s tangible connections with Canada - her family
connections, property, employment, Canadian bank accounts, and investments.
[12]
On
the other hand, Ms Moayedi had a substantial connection with the US during her time there. She left her job in Canada, leased her condominium, acquired a US driver’s license, and worked for a non-Canadian company. Further, her husband returned
to the US in the fall of 2009, which reduced her connection to Canada.
[13]
Overall
the judge concluded that Ms Moayedi had not met the residency requirement
because she had not centralized her mode of existence in Canada during the relevant time frame. The judge also observed that Ms Moayedi had not met the
three-year residency requirement. Accordingly, the judge denied Ms Moayedi’s
citizenship application.
III. Issue One - Did the
citizenship judge apply the correct test?
[14]
Ms
Moayedi argues that the judge conflated the three-year residency test with the Koo
factors. After citing the Koo test, the judge stated: “Thus, if Canada is not the applicant’s primary residence for at least three out of the four year
period preceding the date of application, the application should not be
approved”.
[15]
In
my view, the judge clearly understood the Koo test. The decision sets
out the test in detail and reviews the evidence relevant to each factor. The
statement quoted above simply does not correspond with the test the judge
applied. In context, I cannot conclude that the judge’s statement reflected a
misunderstanding or misapplication of the test.
IV. Issue Two - Did the
citizenship judge render an unreasonable decision?
[16]
Ms
Moayedi argues that the judge rendered an unreasonable decision by counting
three of the six Koo factors against her, after finding the first three
of them in her favour.
[17]
In
particular, Ms Moayedi contends that her 407-day shortfall was not “extensive”.
Further, the judge focussed too greatly on her one-year absence from Canada, finding that her absence was not temporary, and that her attachment was divided between Canada and the US.
[18]
In
my view, the judge’s conclusions were not unreasonable.
[19]
Clearly,
Ms Moayedi fell substantially short of the requirement that she be resident in Canada for three out of the four years prior to her application. The judge reasonably
concluded that the shortfall was “extensive”.
[20]
Further,
Ms Moayedi’s absence from Canada to accompany her husband in the US was not a clearly temporary situation. She obtained employment in the US for a non-Canadian company during that period. Further, her husband returned to the US and continues to work there, as does Ms Moayedi.
[21]
In
addition, the judge found that Ms Moayedi had centralized her existence in the US while she was working there. Similarly, it was relevant that her husband returned to
work in the US and that, once again, she followed him there. The judge was
entitled to take into account Ms Moayedi’s conduct after she filed her
application for citizenship, as well as her behaviour during the relevant time
frame (Sotade v Canada (Minister of Citizenship and Immigration), 2011
FC 301, at para 15.)
V. Conclusion and
Disposition
[22]
The
citizenship judge applied the proper test and reached a conclusion on the
evidence that is defensible based on the facts and the law. Therefore, I have
no basis on which to overturn the judge’s decision. Accordingly, I must dismiss
this appeal, with costs.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The appeal is dismissed with costs.
“James
W. O’Reilly”
Annex
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Citizenship
Act,
RSC 1985, c C-29
Grant
of Citizenship
5. (1) The Minister shall grant citizenship to any person who
[…]
(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,
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Loi
sur la citoyenneté,
LRC 1985, ch C-29
Attribution
de la citoyenneté
5.
(1) Le ministre attribue la citoyenneté à toute personne qui, à la fois :
…
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,
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