Docket: T-1646-15
Citation:
2016 FC 577
Montréal, Quebec, May 25, 2016
PRESENT: The
Honourable Mr. Justice Harrington
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BETWEEN:
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ANNEMARIE
SWERDLOW
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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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JUDGMENT AND REASONS
[1]
Ms. Swerdlow, a German citizen, became a
permanent resident of Canada in 1957. It was only in May 2011 that she applied
for Canadian citizenship. The reason she gave was that she waited until Germany
changed its law with respect to dual citizenship. Until shortly before her
application for Canadian citizenship, she would have lost her German
citizenship if she became a citizen of another country.
[2]
Section 5(1)(c) of the Citizenship Act as
it was at the time of her application required that she be a resident of Canada
for at least 3 of the 4 years immediately preceding her application, in other
words 1,095 days. She was only physically present here 836 days because she now
winters outside the country. Her application was dismissed by a Citizenship
Judge on that basis.
[3]
Counsel mounted a strong argument with respect
to procedural fairness. He referred to case law which states that the
Citizenship Judge had to inform the applicant which of three residency tests he
was going to apply so as to allow commentary thereon. In my view it is not
necessary to consider those submissions because the Citizenship Judge
unreasonably fettered his discretion.
[4]
The sorry state of our law with respect to the
residency requirements under the Citizenship Act has been repeated
literally hundreds of times, with no respect whatsoever for comity.
[5]
In Papadogiorgakis (Re), [1978] 2 FC 208,
Associate Chief Justice Thurlow was of the view that a person was resident
where he centralized his mode of living. That mode of living did not change because
he had left to study in the United States.
[6]
In Koo (Re), [1993] 1 FC 286, Madam
Justice Reed expanded on that view. The issue was where an applicant
“regularly, normally or customarily lives”. She offered some indicia.
[7]
Under both these tests, one might be “resident”
of Canada for at least 3 of the 4 years immediately preceding a Citizenship
application even if not physically present here for at least 1,095 days. I
venture to say that under either of these two tests Ms. Swerdlow’s application
would have been approved.
[8]
Four months after Koo, Mr. Justice
Muldoon applied a strict physical presence test in Pourghasemi (Re),
(1993) 62 FTR 122.
[9]
This led to the decision of Mr. Justice Lutfy,
as he then was, in Lam v Canada (Minister of Citizenship and Immigration),
(1999) 164 FTR 177. He noted that a bill was then before Parliament which would
clarify the residence issue. Unfortunately, Parliament did not deal with the
issue at that time, but rather waited until 2014, when it established a
physical presence test.
[10]
At paragraphs 32 and 33 of his Reasons in Lam,
Chief Justice Lutfy noted:
32 […] The decisions under appeal do not
always make clear which of this Court's conflicting case law is being followed.
33 […] where citizenship judges, in clear
reasons which demonstrate an understanding of the case law, properly decide
that the facts satisfy their view of the statutory test in paragraph 5(1)(c),
the reviewing judges ought not to substitute arbitrarily their different opinion
of the residency requirement.
[11]
In his Reasons, the Citizenship Judge stated: “Quel que soit le chiffre exact, elle est
loin des 1095 jours de présence physique requis. […] J’ai expliqué à la
requérante que c’est avec regret, mais catégoriquement pour respecter la loi,
que je n’approuve pas la présente demande. […] Simplement dit, la loi est
bonne, puisqu’elle est la loi.”
[12]
This decision shows no understanding whatsoever
of the conflicting jurisprudence in this Court. It may well be that the
Citizenship Judge did not even realize that before 2014, it was not necessarily
a requirement to have 1,095 days of physical presence in Canada. Indeed, he
expressed regret. If he had followed another test, he would not have had to be
regretful. He would have granted the application.
[13]
It is clear that the Citizenship Judge
unreasonably fettered his discretion. Ms. Swerdlow is entitled to a new hearing
under the law as it was before the amendment.
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