Docket: T-1195-15
Citation:
2016 FC 280
Ottawa, Ontario, March 22, 2016
PRESENT: The
Honourable Mr. Justice Annis
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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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ZENGQI ZHOU
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Respondent
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JUDGMENT AND REASONS
[1]
The Minister [the Applicant] brings this
application to set aside the decision of the Citizenship Judge on the narrow
but contestable point that the Judge indicated she was applying the strict
physical residency presence test to approve the application, when the Respondent
could not meet the test because of a shortfall of seven days physical residence
in Canada.
[2]
For the reasons that follow, the appeal is
allowed.
I.
Background
[3]
The Respondent is a citizen of China who came to
Canada as a student in 2001 and became a permanent resident in 2007. On
December 3, 2009, he applied for Canadian citizenship. The relevant four year
period under the Citizenship Act RSC 1985, C-29 [the Act] is from
December 3, 2005 to his application date of December 3, 2009.
[4]
The Respondent declared 1088 days of presence,
leaving him a shortfall of seven days from the minimum 1095 days as required by
the Act.
II.
Analysis
[5]
Several issues were raised by the Citizenship
Officer and resolved to the satisfaction of the Citizen Judge. Ultimately, the
issue in question arose out of the Judge’s reasons at paragraphs 22 and 23 of
her decision in respect of the Respondent’s shortfall of seven days of physical
residence:
[22] With respect
to the shortfall of seven days, I am ready to grant him citizenship in spite of
this. It is cruel to make him wait again from 2009 during which he filed his
application. By now, he had already waited 6 ½ years. He is ready to become
Canadian.
[23] Given the foregoing, in referring to
the residency test set by Muldoon J. in Pourghasemi, (Re): [1993] F.C.J.
No. 232, I find that, on a balance of probabilities, the Applicant has
demonstrated that he resided in Canada for the number of days he claimed to
reside in Canada and therefore met the residence requirement under s. 5(1)(c)
of the Act.
[6]
Despite sharing the Judge’s view that the
Respondent is ready to become a Canadian, the jurisprudence in this Court is
very clear that whatever the residency test chosen by the Citizenship Judge, it
is vital that the test be applied, and if not, the decision must be rejected as
being neither transparent nor intelligible.
[7]
In this case the Judge clearly cited the strict
physical presence test from the case of Pourghasemi, (Re): [1993] F.C.J.
No. 232 However, the Respondent, without dispute, did not meet that test by a
shortfall of seven days. In Canada (Minister of Citizenship and Immigration)
v Demurova, 2015 FC 872, where the applicant fell short of the 1095 day
requirement by two days, this Court found that the Citizenship Judge’s decision
to disregard the shortfall and grant the application was unreasonable.
III.
Conclusion
[8]
In the circumstances, the appeal must be
allowed, the decision set aside and the matter remitted to a different
Citizenship Judge for re-determination.
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