Saturday, November 12, 2011


Here is a recent case on an issue that is often overlooked by applicants: they spent too much time abroad, failing to accumulate the requisite 1095 days of residency in a four year period preceding the application, and they fail to marshall enough supporting evidence in advance of the application when requesting that the citizenship judge exercise discretion. Preparation is critical, and some applicants need to understand that they need to actually live in Canada and cannot simply pretend that they are here.

Deshwal v. Canada (Minister of Citizenship and Immigration)

Bindu Singh Deshwal, Applicant, and

Minister of Citizenship and Immigration, Respondent

[2011] F.C.J. No. 1529

2011 FC 1248
Docket T-455-11
Federal Court

Calgary, Alberta
Near J.
Heard: October 17, 2011.

Judgment: November 1, 2011.

(22 paras.)

1 NEAR J.:-- This is an appeal of the decision of a Citizenship Judge under subsection 14(5) of the Citizenship Act, RSC, 1985, c C-29 (the Act). The Applicant contests the refusal to grant her citizenship on the basis that she did not meet the residency requirements mandated by subsection 5(1)(c) of the Act.

2 For the following reasons, this appeal is dismissed.

• I. Facts

3 The Applicant, Bindu Singh Deshwal, is a citizen of India. She arrived in Canada and became a permanent resident on June 9, 2002.

4 The Applicant submitted her application for citizenship on November 24, 2008. The relevant time period for residency purposes is therefore from November 24, 2004 to November 24, 2008. During this time period, however, the Applicant returned to India from July 16, 2002 to July 13, 2005. She was also absent from Canada for the periods of December 26, 2007 to January 20, 2008 and February 14, 2009 to September 24, 2010.

• II. Citizenship Determination

5 Having applied the six factors established in Re Koo (1992), 59 FTR 27, [1993] 1 FC 286, the Citizenship Judge was not satisfied that the Applicant had met the residency requirement under subsection 5(1)(c) of the Act.

6 The Applicant departed Canada only 37 days after her arrival and was absent for 1,092 days. Thereafter, she was absent for 25 day and 586 day periods. She could not provide evidence to confirm that her husband lived in Canada or that her son attended school in the relevant period. In addition, she could not confirm her residential addresses in the country. Although the Applicant claimed she was in Canada for 1,204 days, the Citizenship Judge was unable to determine the extent of her physical absences due to a lack of documentation.

7 Similarly, there was no evidence that her absences from Canada related to a clearly temporary situation. It was noted that the Applicant recently returned to Canada with her son but that her husband remained in India. She claims that her husband remained to care for his sick father but there was no evidence of this illness.

8 Despite her recent return to Canada and attempts to re-establish herself and her son, she had spent more time in India than in Canada. There was a lack of documentation that her connection to Canada was more substantial than that of any other country during the relevant period. The Citizenship Judge could not approve her application.

• III. Issues

9 This application raises the following issues:

• (a) Can the Applicant submit new evidence to this Court as part of her citizenship appeal?

• (b) Did the Citizenship Judge err in finding that the Applicant did not meet the residency requirement under subsection 5(1)(c) of the Act?

• III. Standard of Review

10 In Pourzand v Canada (Minister of Citizenship and Immigration), 2008 FC 395, 2008 CarswellNat 831 at para 19, it was found that reasonableness is the applicable standard of review for a citizenship judge's determination as to whether an applicant meets the residency requirement since it is a question of mixed fact and law.

11 As articulated in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47, reasonableness is "concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process" as well as "whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law."

• IV. Analysis

Issue A: New Evidence

12 The Applicant has attempted to submit new evidence as part of her appeal to address some of the concerns raised by the Citizenship Judge. This includes property documents and evidence related to the employment of her spouse.

13 This Court has, however, clarified that citizenship appeals are no longer trials de novo. They proceed by way of application under Rule 300(c) of the Federal Courts Rules, SOR/98-106 based on the record before the Citizenship Judge (see for example Lama v Canada (Minister of Citizenship and Immigration), 2005 FC 461, [2005] F.C.J. No. 577 at para 21).

14 As a consequence, I cannot consider new evidence presented by the Applicant as part of this appeal.

Issue B: Residency Requirement

15 Subsection 5(1)(c) establishes that citizenship will be granted where an applicant "within the four years immediately preceding the date of his or her application, accumulated at least three years of residence in Canada" according to the prescribed formula.

16 This Court has interpreted the term "residence" in different ways. In Re Pourghasemi (1993), 62 FTR 122, 19 Imm LR (2d) 259, Justice Francis Muldoon favoured a strict physical presence test while Justice Barbara Reed described residence as being where an applicant "regularly, normally or customarily lives" and enumerated a series of six relevant qualitative factors in Koo, above. It is open to a Citizenship Judge to adopt either test (see Lam v Canada (Minister of Citizenship and Immigration) (1999), 164 FTR 177, 87 ACWS (3d) 432).

17 Although there has been some recent debate as to whether one test is more appropriate (contrast the approach of Justice Robert Barnes in El Ocla v Canada (Minister of Citizenship and Immigration), 2011 FC 533, [2011] F.C.J. No. 667 with the emphasis placed on physical presence by Justice Donald Rennie in Martinez-Caro v Canada (Minister of Citizenship and Immigration), 2011 FC 640, [2011] F.C.J. No. 881), the issue is not pertinent to this appeal. The Applicant was given the benefit of the qualitative Koo test but was still found not to have met the residency requirement. This Court must consider whether the Citizenship Judge was reasonable in its application of the test to the evidence presented by the Applicant in this case.

18 The Applicant asserts that she has met the residency requirement of subsection 5(1)(c) based on the Koo factors. Despite two trips to India, she insists that she was physically present during the relevant time period for 1,204 days. She also contends that she centralized her mode of existence with her husband and son at an address in Canada.

19 As the Respondent submits, however, given the Applicant's frequent absences from Canada, it was reasonable for the Citizenship Judge to require corroborating documentation. The Applicant could not provide proof of her addresses or that her husband lived with her during the relevant time period. There simply was not enough evidence that she met the residency requirement.

20 I must agree with the Respondent that the onus was on the Applicant to provide sufficient evidence establishing that she satisfied the residency requirement in the relevant period (see Rizvi v Canada (Minister of Citizenship and Immigration), 2005 FC 1641, 2005 CarswellNat 4153 at para 21). The Court cannot justify overturning the decision of the Citizenship Judge. I also note that nothing precludes the Applicant, having re-established herself in Canada, from reapplying at a later date.

• V. Conclusion

21 Given the lack of supporting evidence, it was reasonable for the Citizenship Judge to conclude that the Applicant had not met the residency requirements prescribed by subsection 5(1)(c) of the Act.

22 Accordingly, this appeal is dismissed.


THIS COURT'S JUDGMENT is that this appeal is dismissed.


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