Docket: T-522-15
Citation:
2015 FC 1275
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, November 16, 2015
PRESENT: The Honourable Mr. Justice Harrington
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BETWEEN:
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Applicant
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and
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FLORIAN MICHEL
MAURICE VILLAUMÉ
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Respondent
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JUDGMENT AND REASONS
[1]
A Citizenship Judge recommended to the Minister
of Citizenship and Immigration that Canadian citizenship be granted to
Mr. Villaumé despite his very limited physical presence in Canada. Mr. Villaumé’s
application had been submitted in 2010 under the Citizenship Act, RSC,
1985, c C-29 (since amended). The judge had to determine whether Mr. Villaumé
had “within the four years immediately preceding the
date of his . . . application, accumulated at least three years of residence
in Canada . . . ”, as section 5(1)(c) of the Act then required. Because
the Citizenship Judge was of the opinion that Mr. Villaumé was physically
absent but mentally present, she approved his application. She relied on one of
the three schools of thought that existed at the time, Re Koo, [1993] 1
FC 286, a decision of Madam Justice Reed. The Minister is challenging
that decision in this application for judicial review that is before me.
[2]
Although he was personally served with the
Minister’s application for leave and application for judicial review, Mr. Villaumé
did not file a notice of appearance. The Minister’s application for leave was
approved by Mr. Justice LeBlanc. Counsel for the Minister had a copy
of the applicant’s record sent to Mr. Villaumé, but he did not respond to
it.
[3]
Nonetheless, Mr. Villaumé appeared at the
hearing. Using my discretion under rule 55 of the Federal Courts Rules, I
allowed him to be heard.
[4]
He explained to me that he had not filed a
notice of appearance because he could not afford to hire a lawyer and did not
seriously think he would succeed in defending himself. However, since then he had
reviewed the case more carefully and noticed that in Re Koo Justice Reed
referred to events that were outside the reference period of Mr. Koo’s
application for citizenship.
[5]
Mr. Villaumé became a permanent resident in
January 2007 and submitted an application for citizenship on June 19,
2010. The reference period for the purposes of the Act was from June 19,
2006, to June 18, 2010. He reported only 218 days of presence over the
required period of 1,095 days.
[6]
He explained that his lack of presence in Canada
was due to the fact that he works internationally for Engineers Without Borders.
[7]
In September 2012, he married a citizen of Burkina
Faso, who was the mother of a child. In June 2013, a son was born in France of
this union. In April 2014, Mr. Villaumé returned to settle in Canada with
his wife, her son and their young son.
[8]
I share the following words of counsel for the
Minister in his memorandum of fact and law:
[translation]
2. This conclusion is erroneous
because it was based on facts that did not exist during the reference period.
In addition, if the judge had considered the facts as they were during the
reference period, she should have found that the respondent did not meet the
requirements of the Act.
3. Because it is impossible to say that
the decision would have been the same despite the judge’s errors, the applicant
believes he has shown that there is a serious question that justifies granting
the application for leave. . . .
[9]
Mr. Villaumé points out that in Re Koo
Justice Reed referred to events outside the reference period. Mr. Villaumé’s
statement is accurate. It should be noted that Mr. Koo had appealed a
decision of a Citizenship Judge that had dismissed his application because he
had not been sufficiently present in Canada. Although Madam Justice Reed
was of the view that physical presence was not necessary, she nonetheless
dismissed Mr. Koo’s appeal, while pointing out that that Mr. Koo’s
wife had lived in Canada during the reference period and that they had bought a
new house here following Mr. Koo’s return to Canada. She also noted the
fact that Mr. Koo’s absences were the result of business obligations but held
that his statements about his intention to move his business to Canada were
irrelevant and speculative.
[10]
Although it is possible to refer to events
subsequent to the reference period to confirm establishment in Canada that has
been demonstrated otherwise (Sotade v Canada (Citizenship and Immigration)
2011 FC 301), the events that the judge referred to in this case do not assist Mr. Villaumé.
[11]
In the circumstances, I find that the decision
was unreasonable and that I must allow this application for judicial review.
[12]
Mr. Villaumé also raised the possibility of
recommending that he be granted citizenship for extraordinary services in
Canada. The Citizenship Judge did not need to make such a recommendation, and
the record does not contain sufficient information to allow me to give my
opinion on this subject.
JUDGMENT
THE COURT ORDERS
AND ADJUDGES as follows:
1.
The application for
judicial review of a decision of the Citizenship Judge made on March 17,
2015, granting citizenship to the respondent, is allowed.
2.
The impugned decision
is set aside, and the matter is remitted to another decision‑maker for
reconsideration.
3.
There is no serious
question of general importance to certify.
“Sean Harrington”
Certified true
translation
Mary Jo Egan, LLB
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