Date: 20020219
Docket: T-145-01
Neutral citation: 2002 FCT 181
Montreal, Quebec, February 19, 2002
Present: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
KORLEEN BOGDANOVICH
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] This is an appeal of a decision rendered by Citizenship Judge Paul Gallagher dated December 20, 2000 where he did not approve the applicant's citizenship application on the grounds that she had spent an unacceptably low number of days in Canada between the time of landing and the time that her application was submitted.
[2] Paragraph 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29 (the "Act")reads:
| 5. (1) The Minister shall grant citizenship to any person who [...] (c) has been lawfully admitted to Canada for permanent residence, has not ceased since such admission to be a permanent resident pursuant to section 24 of the Immigration Act, and has, within the four years immediately preceding the date of his application, accumulated at least three years of residence in Canada calculated in the following manner: (i) for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and (ii) for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence; |
5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois_: [...] c) a été légalement admise au Canada à titre de résident permanent, n'a pas depuis perdu ce titre en application de l'article 24 de la Loi sur l'immigration, et a, dans les quatre ans qui ont précédé la date de sa demande, résidé au Canada pendant au moins trois ans en tout, la durée de sa résidence étant calculée de la manière suivante_: (i) un demi-jour pour chaque jour de résidence au Canada avant son admission à titre de résident permanent, (ii) un jour pour chaque jour de résidence au Canada après son admission à titre de résident permanent; |
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[3] The applicant submits that the Citizenship Judge committed an error of law by unduly focussing on the physical presence in Canada. The applicant also submits that the Citizenship Judge committed an error in the assessment of the number of days the applicant was absent from Canada.
[4] While I recognize that there is conflicting jurisprudence on the interpretation of paragraph 5(1)(c) of the Act, recent jurisprudence seems to have consistently adopted the test developed by Reed J. in Koo Re, [1993] 1 F.C. 286 (T.D.). The test is "whether it can be said that Canada is the place where the applicant regularly, normally and customarily lives."
[5] In the case at bar, I am satisfied that the Citizenship Judge properly applied the Koo, supra, test.
[6] Contrary to what the applicant submits, the Citizenship Judge did not proceed with a strict physical presence approach. It is clear from his decision that he considered the applicant's strong connection to Canada. However, the test in Koo, supra, still requires that the Citizenship Judge give weight to the applicant's physical presence in the country.
[7] In Canada (Minister of Citizenship and Immigration) v. Jreige (1999), 175 F.T.R. 250 at para. 29, Lemieux J. stated that an examination of the questions developed by Reed J. in Koo, supra, amply shows that the learned judge's focus was indeed on the physical presence of a citizenship applicant in Canada. Lemieux J. was also of the view that the following principles emanate from paragraph 5(1)(c) of the Act:
The recent jurisprudence of this court in citizenship matters guiding an assessment of whether or not the residency requirements under s. 5(1)(c) of the Act have been met has emphasized, in my view, the following principles:
(1) In accordance with the intent of Parliament gleaned from a reading of the statute as well as considering the purpose of the residency requirement, living in Canada, being present in Canada, is by far the most important factor.
(2) The residency analysis must be separated into two components: the establishment of residency and the maintenance of residency.
Jreige, supra at para. 23.
[8] In assessing the applicant's connection with Canada in Koo, supra at para. 24, Reed J. noted that his situation "is not one in which there has been an extensive period of residence in Canada prior to the more recent extended absences." Reed J. also noted that Canada was not the main focus of the applicant's family life. Both of these observations are also applicable to the case at bar.
[9] The Citizenship Judge carefully examined and weighed the circumstances surrounding the applicant's physical absences from Canada but found that no special circumstances exist that could have justified these absences.
[10] The Citizenship Judge is entitled to weigh the different factors and I am unable to find a reviewable error where the evidence supports the decision.
[11] The applicant further submits that there was an error in the calculation of her absences. A verification of the numbers indicates a discrepancy of some 30 days. The applicant was absent 929 days not 964 days. I agree with the applicant that the Citizenship Judge must make a proper verification of the absences. In some instances, a discrepancy in the numbers may be a significant error and will be grounds to allow an appeal. (Canada (Minister of Citizenship and Immigration) v. Jabsheh, [1999] F.C.J. No. 147). However, in my opinion, any discrepancy in the numbers should be of material importance. In Jreige, supra, Lemieux J. noted that he was not prepared to allow the appeal on the ground alone of the error in calculation. When looking at the total absences of Jreige from Canada, the discrepancy error was not material in light of the overall absences. The same applies here.
[12] For all of these reasons, this appeal is dismissed.
"Danièle Tremblay-Lamer"
JUDGE
FEDERAL COURT OF CANADA
Date: 20020219
Docket: T-145-01
BETWEEN:
KORLEEN BOGDANOVICH
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-145-01
STYLE OF CAUSE: KORLEEN BOGDANOVICH
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 12, 2002
REASONS FOR ORDER AND ORDER OF
THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
DATED: February 19, 2002
APPEARANCES:
Ms. Mary Lam FOR APPLICANT
Mr. Michael Butterfield FOR RESPONDENT
SOLICITORS OF RECORD:
Ms. Mary Lam
Toronto, Ontario FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario FOR RESPONDENT