Ottawa, Ontario, December 15, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application brought under Rule 300(c) of the Federal Court Rules, 1998 SOR/98-106, appealing the decision of a Citizenship Judge, refusing the applicant's application for Canadian citizenship on the grounds that she did not satisfy the residence requirement as set out in paragraph 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29 (the "Act").
[2] As I stated in Canada(Minister of Citizenship and Immigration) v. Fu, [2004] F.C.J. No. 88 (F.C.), the standard of review in verifying whether a Citizenship Judge has properly applied the test for residency to the facts of the case is that of reasonableness simpliciter.
[3] The applicant submits that the Citizenship Judge misdirected himself in concluding that the applicant had not satisfied the residence requirement first, by placing emphasis on compliance with the strict physical presence test and second, by placing undue emphasis on the provision of the applicant's passport to support her claim to physical presence in Canada.
[4] In his reasons, the Citizenship Judge concluded that the applicant did not present credible evidence that would prove eligibility for Canadian citizenship. In this regard, it was difficult to determine the number of days she spent in Canada prior to her application considering that the applicant was either unwilling and/or unable to show her expired passport in effect for the four (4) years prior to the filing of her application for citizenship. The Citizenship Judge found that her current passport showed that the applicant had taken frequent and lengthy trips to her country of origin where she claimed to feel better as far as her health was concerned.
[5] The Citizenship Judge also found that the applicant did not provide other compelling materials that would assist to show she had centralized her mode of living in Canada. For the reasons that follow, I must disagree.
[6] Regardless of the evidence before him on the number of days the applicant spent in Canada, it is my opinion that the Citizenship Judge erred in his application of the Re Koo test. In my view, the Citizenship Judge placed undue emphasis on both the absence of the expired passport as well as her current passport which shows that she had taken frequent and lengthy trips to Poland. While he acknowledged that the applicant's husband and child were resident in Canada, he failed to consider further compelling and substantive evidence in support of her satisfying the residence requirement.
[7] I have reviewed the certified tribunal record and find that, based on the evidence before him, it was unreasonable for the Citizenship Judge to conclude that the applicant had not centralized her mode of living in Canada. First, she is married to a landed immigrant and the mother of a young daughter, both of whom are resident in Canada. Her family home is in Canada. Furthermore, it is clear from the documentation submitted by the applicant that Canada is indeed where she regularly, normally or customarily lives. She has taken English as a Second Language (ESL) classes. She is a client of the Internationally Trained Individuals Program and is investigating how her previous work experience would fit the Canadian work force. She has also completed a 3-day Job Search Workshop. She has a bank account and submits annual income tax forms. She has an Ontario Health Card and receives medical care. She attends church. She has developed a social life here and has both personal and family friends. Her time abroad was clearly temporary as these trips were simply family visits to her native Poland. Nothing suggests that she was working in Poland or trying to establish a life there. There is no doubt that the quality of the applicant's connection with Canada is more substantial than that which exists with any other country. Thus, I find that the applicant has met the residency requirements of paragraph 5(1)(c) of the Act and is entitled to Canadian citizenship.
[8] For these reasons, I will allow this appeal.
ORDER
THIS COURT ORDERS that the appeal is allowed.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-678-05
STYLE OF CAUSE: KATARZYNA ANNA KAZIMIERCZAK
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: December 14, 2005
REASONS FOR ORDER: TREMBLAY-LAMER J.
APPEARANCES:
| Mr. Christopher J. Roper
|
|
| Mr. Bernard Assan
|
SOLICITORS OF RECORD:
| Christopher J. Roper Toronto, Ontario
|
|
| John H. Sims, Q.C. Deputy Attorney General of Canada
|