Date: 20021108
Docket: T-804-01
Ottawa, Ontario, the 8th day of November 2002
Present: The Honourable Mr. Justice Pinard
Between:
Andrei MALEVSKY
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The applicant's appeal is allowed and the matter is returned to another citizenship judge for reconsideration and redetermination.
"Yvon Pinard"
Judge
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
Date: 20021108
Docket: T-804-01
Neutral Citation: 2002 FCT 1148
Between:
Andrei MALEVSKY
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an appeal by the applicant under subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 (the Act) from the decision of Citizenship Judge George Springate, dated April 19, 2001, dismissing the applicant's citizenship application.
[2] The residence requirements in paragraph 5(1)(c) of the Act are as follows:
| 5. (1) The Minister shall grant citizenship to any person who [ . . . ] |
|
5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois : [ . . . ] |
| (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: |
|
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) 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 |
|
(i) un demi-jour pour chaque jour de résidence au Canada avant son admission à titre de résident permanent; |
| (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; |
|
(ii) un jour pour chaque jour de résidence au Canada après son admission à titre de résident permanent.
|
[3] Although under Rule 300 of the Federal Court Rules, 1998, SOR/98-106, which came into force on April 25, 1998, an appeal under subsection 14(5) of the Act is no longer an appeal de novo, this is still an appeal in which the applicable test is that of correctness (see The Minister of Citizenship and Immigration v. Su-Chen Chiu (June 9, 1999), T-1892-98).
[4] In the case at bar the applicant, a Russian citizen, entered Canada for the first time on May 30, 1995, and then obtained the right to permanent residence on February 6, 1998. He signed his application for Canadian citizenship on February 8, 2000.
[5] The citizenship judge informed the applicant that his citizenship application was refused, as is indicated in the following extract from the letter of notification:
Under paragraph 5(1)(c) of the Citizenship Act, an applicant is required to have accumulated at least three years of residence in Canada within the four years immediately preceding his or her application.
Since a departmental officer had doubts that you actually resided in Canada during that period of time, she requested additional documentation from you. Unfortunately, the documents that you submitted were, in my opinion, not satisfactory proof of residence in Canada. I have come therefore to the conclusion that you did not meet the residence requirement as defined in paragraph 5(1)(c) of the Citizenship Act.
[6] In the reasons submitted to the Minister by the judge, he explains why the applicant did not satisfy the residence requirements, as is indicated in the following extract:
Mr. Malevsky submitted a list of absences from Canada that begin on Feb. 6, 1998 - the date he was granted landed status. He did not respond to requests for earlier dates although he did tell a citizenship officer that prior to February 1998 he was out of Canada for about one month a year. If factual, then (sic) would reduce his residency days in Canada even more.
None-the-less, could his application not be examined under the Federal Court judgments of in Re Papadogiorgakis and in Re Koo? The simple answer is no. No, as, at issue, is the veracity of Mr. Malevsky's claims.
[. . .]
As you can see, it is impossible to verify with any degree of certainty when the applicant was in or out of Canada. Therefore, I cannot state with any degree of certainty the number of residency days Mr. Malevsky has or has not acquired and if he did indeed satisfy section 5(1) of the Act.
(Emphasis added.)
[7] The burden of proof on the applicant for establishing the residence requirements under paragraph 5(1)(c) of the Act is the mere civil evidence burden, proof by a balance of probabilities. The record in this case discloses that the citizenship judge imposed a heavier burden in this regard on the applicant: to satisfy him with some degree of certainty of the number of days of residence in Canada. There is no requirement of certainty in proof by a balance of probabilities. The citizenship judge erred in law, therefore, and this justifies the intervention of this Court.
[8] Accordingly, the applicant's appeal is allowed and the matter is returned to another citizenship judge for reconsideration and redetermination.
"Yvon Pinard"
Judge
OTTAWA, ONTARIO
November 8, 2002
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: T-804-01
STYLE: Andrei MALEVSKY v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 8, 2002
REASONS FOR ORDER OF PINARD J.
DATED: November 8, 2002
APPEARANCES:
Annie Kenane FOR THE APPLICANT
Mario Blanchard FOR THE RESPONDENT
SOLICITORS OF RECORD:
Annie Kenane FOR THE APPLICANT
Étude Kenane
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario