Date: 20001201
Docket: T-563-99
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
LOPE MEJIA ANIEVAS
Respondent
REASONS FOR ORDER
HANSEN J.
[1] This is an appeal under subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 and section 21 of the Federal Court Act, R.S.C. 1985, c. F-7 brought on behalf of the Minister of Citizenship and Immigration, from a decision of a citizenship judge, dated January 25, 1999, wherein the judge approved the application of the respondent for a grant of citizenship under subsection 5(1) of the Citizenship Act.
[2] The respondent acquired permanent residence status on July 12, 1994 and filed an application for Canadian citizenship on January 6, 1998. During the relevant period of time, the respondent was physically present in Canada for 608 days and consequently was short 487 days of the requirement of three years residence under the Citizenship Act. The citizenship judge concluded, based on the evidence provided by the respondent, that he met the residence requirement as contemplated in the decision of Thurlow A.C.J. in Papadogiorgakis, [1978] 2 F.C. 208 (T.D.)
[3] The appellant raised three issues on this appeal:
| i) Did the citizenship judge err by making a decision based on an incomplete citizenship application? |
| ii) Did the citizenship judge err by taking into account an irrelevant consideration and by failing to note the relevant time period? |
| iii) Did the citizenship judge err in fact and in law in concluding that the respondent had met the residence requirement in paragraph 5(1)(c) of the Citizenship Act? |
[1] As to the first issue, the applicant submits that the respondent's application was deficient as it did not identify where he had resided since his initial entry into Canada. In the Residence Questionnaire submitted with the application, in response to question 8 which asks: "Where have you lived since your initial entry? (Note: includes periods while abroad)" the applicant only identified his Canadian addresses and did not include addresses for his periods of absence from Canada. Counsel for the applicant explained the importance of this information in that it assists the citizenship judge in determining whether an applicant is maintaining a residence outside of Canada.
[2] Counsel for the applicant did not provide the Court with any statutory or regulatory basis on which to conclude that completion of this particular questionaries is mandatory in the sense that it is an integral part of the application required to be made "in the prescribed form" as contemplated in subsection 3(1) of the Citizenship Regulations, 1993 which states:
| 3. (1) An application made under subsection 5(1) of the Act shall be (a) made in prescribed form; and (b) subject to subsection (3), filed, together with the materials described in subsection (4), with a citizenship officer of the citizenship court that is closest to the place where the applicant resides. |
3. (1) La demande présentée en vertu du paragraphe 5(1) de la Loi doit : a) être faite selon la formule prescrite; b) sous réserve du paragraphe (3), être déposée, accompagnée des documents visés au paragraphe (4), auprès de l'agent de la citoyenneté du bureau de la citoyenneté le plus proche du lieu de résidence du demandeur. |
[3] Indeed, the language used in the form would lead one to the contrary view. It states:
| In order to assist the Citizenship Judge in determining whether you meet the residence requirement of the Citizenship Act, we suggest you complete this questionnaire IN DETAIL and return it to the Court of Canadian Citizenship in advance of your citizenship hearing. |
| The term "residence", not being defined in the Citizenship Act or Regulations, requires that we turn to Federal Court decisions for interpretation and meaning. The Federal Court has ruled that residence in Canada for citizenship purposes is not strictly limited to actual physical presence. The concept of residence is rather the degree to which an applicant for citizenship settles into, maintains or centralizes his/her ordinary mode of living in Canada for the required 3-year period within the 4 years preceding the date of application. In other words, a person must demonstrate having established a home in Canada in which he/she is living and while outside of Canada, maintained sufficient ties and connections with Canada to suggest continuity of his/her residence in Canada. |
[4] It should be noted that there is no suggestion that this was an attempt on the part of the respondent to mislead anyone with respect to his absences from Canada during the relevant time frame. Details of all the absences are provided both in the application and in response to question 10 in the same questionnaire.
[5] I am not persuaded that the failure to complete the Residence Questionnaire is a requirement of the Act or the Regulations. However, in those instances where an applicant has not been physically present in Canada for the required number of days, the consequence of the failure to complete the questionnaire is that the citizenship judge may conclude that there is insufficient information to find that the applicant has centralized his or her mode of living in Canada and the application will be rejected.
[6] As the remaining two issues are related, they will be considered together. With respect to the second issue, the notes of the citizenship judge indicate he considered the respondent's activities with the Good Shepherd Refugee Centre which post-dated the date of the application in reaching his decision that the residence requirement of the Act had been met.
[7] In Lam v. Canada (The Minister of Citizenship and Immigration), [1999] F.C.J. No. 410 (F.C.T.D.) at paragraph 33, Lutfy J. (as he then was) stated the standard of review on an appeal from a citizenship judge as follows:
| _Justice and fairness, both for the citizenship applicants and the Minister, require some continuity with respect to the standard of review while the current Act is still in force and despite the end of the de novo trials. The appropriate standard, in these circumstances, is one close to the correctness end of the spectrum. __However, 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. __It is to this extent that some deference is owed to the special knowledge and experience of the citizenship judge during this period of transition. |
[8] As well, after reviewing the three schools of jurisprudence in this Court regarding the interpretation of the residence requirements of paragraph 5(1)(c) of the Citizenship Act:
| ...In my opinion, it is open to the citizenship judge to adopt either one of the conflicting schools in this Court and, if the facts of the case were properly applied to the principles of the chosen approach, the decision of the citizenship judge would not be wrong.... |
[9] In the present case, the citizenship judge did err by taking into account the respondent's work at the Good Shepherd Refugee Centre. However, given the ample evidence to support the citizenship judge's finding that the respondent had centralized his mode of living in Canada, I am not prepared to overturn the decision on this basis alone.
[10] For these reasons the appeal is dismissed.
"Dolores M. Hansen"
J.F.C.C.
OTTAWA, ONTARIO
December 1, 2000