Ottawa, Ontario, March 20, 2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] A Citizenship Judge rejected the Applicant’s application for citizenship on the grounds that she had not met the residency requirements of “regularly, normally or customarily lives” as articulated in Koo (Re) T.D., [1993] 1 F.C. 286. The Applicant was found to be at least 297 short of the 1,095 days present in Canada normally required to qualify for citizenship.
II. BACKGROUND
[2] The Applicant, along with her husband and two daughters, entered Canada from Iran and was admitted as a permanent resident in March 1999. Her daughters were granted Canadian citizenship. Her husband lost his permanent resident status, was successful in the appeal of that decision and his status is under review.
[3] The Applicant’s husband has owned and operated a number of restaurants in Canada as well as purchased a number of properties for development purposes. The Applicant is said to reside in a condominium in Toronto. Both the Applicant and her husband have returned frequently to Iran.
[4] The Applicant applied for citizenship in April 2003. As part of the investigation by Citizenship officials, the Applicant was required to provide a translated version of the pages of her passport. Following a review of those translated pages, a hearing was requested by the Respondent due to discrepancies between the number of days of presence in Canada described in the citizenship application and the days outside Canada recorded in the passport.
[5] The Citizenship Judge noted that although only 172 days of absence from Canada was listed in the citizenship application, the passport disclosed an additional 662 days of absence. Furthermore, there were stamps in the passport that could not be accounted for and which suggested additional days of absences from Canada. An additional period of absence, not defined, was noted in respect of the extension of her passport while in Tehran.
[6] The other documentary evidence of residence included her husband’s successful appeal of his residence status, rental receipts and tenancy agreements for her residence in Canada, an agreement to purchase two Canadian properties, her daughters’ Canadian citizenship cards and her granddaughter’s Canadian birth statement.
[7] The Citizenship Judge applied the test in Re Koo that held that one need not be physically present in Canada for the whole 1,095 days (three out of four years of claimed residency) so long as an applicant established Canada as the place where he/she “regularly, normally or customarily lives” or where an applicant has “centralized the mode of existence”.
[8] The Judge found the Applicant had left Canada frequently, had few family connections here (one daughter - the other was studying in the U.K.) and had only acquired limited English skills. The Judge also noted that despite the requirement to confirm that the contents of her application were “true, correct and complete”, there were significant discrepancies as to her absences. Therefore, the Judge would not approve the Applicant’s application and declined to make the discretionary recommendation under s. 5(3) and (4) of the Citizenship Act.
[9] In addition to the Applicant’s challenge to the decision on residency requirements, the Applicant raised a denial of natural justice/procedural fairness and of fear. This grounds of review was based on the existence in the Certified Tribunal Record of a FOSS note on her husband’s file that suggested that the husband, in particular, but the family as well, were less than truthful about their residency and should be examined closely. This document was not disclosed to the Applicant.
III. ANALYSIS
[10] The standard of review has, at times in this Court, varied between reasonableness and correctness. In this case, the applicable standard makes no difference to the result.
[11] There has been case law which suggests that it is open to a Citizenship Judge to adopt any one of several methods of analyzing “residency”. This is an unsatisfactory and arbitrary approach to an issue which is so important to the individual and to the Canadian public. Citizenship is a matter of fundamental importance to a country, its significance is recognized in the Charter. It seems incongruous that the matter can be decided on such a fluctuating basis dependent on which approach a Citizenship Judge wishes to adopt. In my view, the Citizenship Judge was correct in adopting the Re Koo test.
[12] It is particularly telling that the Applicant was, at the bare minimum, approximately 30% short of the requisite 1,095 days with ample evidence to suggest that this shortfall was even greater.
[13] It is also important that the shortfall was discovered only after the Applicant was required to translate the pages of her passport. The evidence would suggest that, given the magnitude of the shortfall, the Applicant had not been forthright in her efforts to secure citizenship. One can hardly criticize the Judge for not making a favourable discretionary recommendation.
[14] While there is no question that a person must be entitled to confront the evidence against him/her, there must be an air of reality to the claim of procedural unfairness. The FOSS notes were, firstly, directly against the husband, and secondly, raised the very issues which were put to the Applicant. There was no unfairness in this situation. The Applicant was accorded an opportunity to confront the issue of her “residency” even though she had made a false statement on her application.
[15] There is not a scintilla of merit in the allegation that the Citizenship Judge was either biased or that there was a reasonable apprehension of bias. The Applicant’s counsel correctly did not press what is, by its nature, a serious allegation against a decision maker.
[16] Therefore, this application for judicial review is dismissed.
JUDGMENT
IT IS ORDERED THAT this application for judicial review is dismissed.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2197-05
STYLE OF CAUSE: ZAHRA MOHAMMADGHASEMI
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 7, 2007
REASONS FOR JUDGMENT: Phelan J.
APPEARANCES:
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Ms. Wennie Lee
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Mr. Jamie Todd
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SOLICITORS OF RECORD:
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LEE & COMPANY Barristers & Solicitors Toronto, Ontario
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MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario
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