Date: 20040315
Docket: T-1538-03
Citation: 2004 FC 387
Toronto, Ontario, March 15th, 2004
Present: The Honourable Mr. von Finckenstein
BETWEEN:
BORISSOTCHEVA, KSENIA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
(Delivered orally from the bench and subsequently written for clarification and precision)
[1] This is an appeal of the decision of Citizenship Judge Rochelle Burns not to approve the Applicant's application for citizenship.
[2] The Applicant is a 23 year-old Russian citizen who came to Canada as a visitor in 1996 and obtained permanent resident status on March 10th, 1997. The applicant applied for Canadian Citizenship on April 25th, 2000. In Reasons dated June 25th, 2003, Judge Burns concluded that her application was premature due to the amount of time which she had spent outside of Canada since March 1997.
[3] At the time of her application, the Applicant was 326 days short of the 1095 days in Canada required in order to obtain citizenship. Her prolonged absences were the result of study abroad and foreign vacations.
[4] Both parties agreed that the standard of review to be applied was one close to correctness as established by Lufty C.J. in Lam v. Canada (M.C.I.), [1991] F.C.J. No. 410. In the more recent decision in Canada (M.C.I.) v. Chang, [2003] F.C.J. No.1871, Mackay J. stated at paragraph 7:
In my view, in light of the decision of the Supreme Court of Canada in Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] S.C.J. No. 18, 2003 SCC 19 the appropriate standard of review in this case is reasonableness simplicitir, but without significant deference to the decision of the Citizenship Judge. That standard arises from the assessment of the circumstances including the provision in the Act for an appeal from the decision of a Citizenship Judge, the nature of the issue to be resolved in a question of mixed fact and law in which the application of the law is more important than the determination of facts, and the comparative expertise of this Court, when compared with that of the Citizenship Judge and in resolving issues where the emphasis is on the low.
[5] I find the reasoning of Mackay persuasive and will apply the reasonableness simplicitir standard.
[6] The Citizenship Judge in this case applied the test set out in Re: Koo, [1993] 1 F.C. 286 and asked the 6 questions posed therein, namely:
(1) was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship?
(2) where are the applicant's immediate family and dependants (and extended family) resident?
(3) does the pattern of physical presence in Canada indicate a returning home or merely visiting the country?
(4) what is the extent of the physical absences - if an Applicant is only a few days short of the 1,095-day total it is easier to find deemed residence than if those absences are extensive?
(5) is the physical absence caused by a clearly temporary situation such as employment as a missionary abroad, following a course of study abroad as a student, accepting temporary employment abroad, accompanying a spouse who has accepted employment abroad?
(6) what is the quality of the connection with Canada: is it more substantial than that which exists with any other country?
[7] Unfortunately, her answer did not at all address the questions posed but were non sequiturs. For instance, the answer to question 2 was: "When in Canada you lived with your parents". This does not address the issue of residency that the question poses.
[8] Similarly, question 5 was answered in a non-responsive way, namely:
Whereas it is commendable to get an education, your focus during the period in question was not on obtaining an education in Canada where you could also have learned much about the country but , rather, in schools outside Canada. You stated you want to go to one of three Canadian universities now. This however, is outside the four years affecting your residency for this application. As a result of what you stated at the hearing , re going to a Canadian university now, it appears this application was submitted prematurely.
With all due respect to the Citizenship Judge, this observation does not answer the question, namely, whether or not the absences could be explained by studies abroad.
[9] Similarly, the answer to question 6 is off the mark. The Citizenship Judge states:
Your main focus has been on obtaining your education and doing so in places outside Canada. This, however, according to your words at the hearing, is to change. Thus once again, this application was made prematurely.
This observation does not at all address the issue in question, namely, whether or not the Applicant's connection is more substantial with Canada or another country.
[10] Accordingly, I find that the Citizenship Judge's application of the test in Re: Koo, supra, cannot be considered reasonable.
[11] Applying the Re: Koo test properly to the evidence presented, it is clear that the Applicant, while pursuing extensive studies abroad, has centralized the mode of her existence in Canada. Accordingly, she is eligible for Canadian citizenship under the Act.
[12] The appeal must, therefore, succeed.
ORDER
THIS COURT ORDERS that the appeal is hereby allowed.
"K. von Finckenstein"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1538-03
STYLE OF CAUSE: BORISSOTCHEVA, KSENIA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MARCH 15, 2004
REASONS FOR ORDER
AND ORDER BY : von FINCKENSTEIN J.
DATED: MARCH 15, 2004
APPEARANCES:
Mr. Stephen W. Green
FOR THE APPLICANT
Ms. Mary Matthews
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Green & Spiegel
Barristers & Solicitors
Toronto, Ontario FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT
FEDERAL COURT
TRIAL DIVISION
Date: 20040315
Docket: T-1538-03
BETWEEN:
BORISSOTCHEVA, KSENIA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER