Canada (Minister of Citizenship and Immigration) v. Mera
Between
The Minister of Citizenship and Immigration, Applicant, and
Segunda Manuela Mera, Respondent
The Minister of Citizenship and Immigration, Applicant, and
Segunda Manuela Mera, Respondent
[2014] F.C.J. No. 509
2014 FC 473
Docket: T-1811-13
Federal Court
Toronto, Ontario
Mactavish J.
Heard: May 14, 2014.
Judgment: May 14, 2014.
Docket: T-1811-13
Federal Court
Toronto, Ontario
Mactavish J.
Heard: May 14, 2014.
Judgment: May 14, 2014.
(21 paras.)
JUDGMENT AND REASONS
1 MACTAVISH
J.:-- The Minister of Citizenship and Immigration appeals from a decision of a
Citizenship Judge approving Segunda Manuela Mera's application for Canadian
citizenship. For the reasons that follow, I have concluded that the appeal must
be allowed.
I. Background
2 Ms.
Mera is an 82 year old permanent resident of Canada who is originally from
Ecuador. She has four daughters living in Canada, and three sons who live in
Ecuador. She lives with one of her daughters while she is in Canada, and owns
her own home in Ecuador.
3 Ms.
Mera filed her citizenship application on August 7, 2005. Thus the relevant
four-year period for assessing her residence was from August 7, 2005 until
August 7, 2009.
4 Ms.
Mera indicated on her citizenship application that she was absent from Canada
for four trips totalling 542 days, and that she was physically present in
Canada for approximately 918 days during the relevant period.
5 On
September 11, 2013, Ms. Mera attended before a Citizenship Judge, following
which the Judge requested a copy of her Entry and Exit report (an "ICES
report") from the Canada Border Services Agency. The ICES report
essentially confirmed Ms. Mera's evidence regarding her travels outside of
Canada, although it did not record a brief trip to Mexico in 2008. This
omission was not material to the decision of the Citizenship Judge, nor is it
material to the outcome of this appeal.
6 According
to Ms. Mera, her last trip outside Canada commenced on July 25, 2009, although
the Citizenship Judge erroneously found that her last trip had commenced on
January 21, 2010.
7 The
Citizenship Judge approved Ms. Mera's application on September 12, 2013.
Considering all of the evidence, including Ms. Mera's "pattern of ...
absences" and her testimony, he concluded that she"was actually
living and was physically present in Canada on the number of days sufficient to
comply with the Citizenship Act."
II. Analysis
8 To
be entitled to Canadian citizenship, an applicant must demonstrate that he or
she has been resident in Canada for three out of the four years immediately
preceding the application for citizenship.
9 The
jurisprudence of this Court has recognized three tests that may be used in
determining whether an applicant has met the residency requirements of the Citizenship Act, R.S.C. 1985, c. C-29.
10 The
first is the physical presence test established by this Court in Re Pourghasemi [1993] F.C.J. No. 232. This
test only asks whether the applicant has been physically present in this
country for a total of three years out of four, or a minimum of 1095 days.
11 The
second test is that articulated in Re Papadogiorgakis, [1978] 2 F.C. 208; [1978] F.C.J. No. 31. This is a less stringent
test in that it looks at whether an applicant has an established residence and
strong attachment to Canada, even if he or she has been temporarily absent away
from Canada.
12 The
third test is one often used in citizenship cases. This is the so-called
"Koo" test, established in Re Koo, [1993] 1 F.C. 286, [1992] F.C.J. No. 1107. The Koo test looks at
residence as being the place where one "regularly, normally or customarily
lives" or has "centralized his or her mode of existence". Re Koo
identifies six factors that are to be considered in assessing whether this test
has been met. These include:
physical presence in
Canada for a long period prior to recent absences;
whether immediate family
and dependants are resident;
whether the pattern of
physical presence in Canada indicates a returning home or just visiting;
the extent of physical
absences;
whether physical absence
is caused by a clearly temporary situation; and
the quality of the
connection to Canada.
13 It
is not clear from a review of the Citizenship Judge's brief reasons which test
he applied in coming to the conclusion that Ms. Mera met the residency
requirements of the Citizenship Act. As a result, the decision lacks the justification, transparency and
intelligibility required of a reasonable decision. Nor is it possible to
ascertain from the Citizenship Judge's reasons whether the decision falls
within the range of possible acceptable outcomes that would be defensible in
light of the facts and the law: see Dunsmuir v. New
Brunswick, 2008 SCC 9 at para. 47, [2008] 1 S.C.R. 190.
14 In
finding that Ms. Mera met the residency requirement of the Act, the Citizenship Judge states that he was
satisfied that Ms. Mera "was actually living and was physically present in
Canada on the number of days sufficient to comply with the Citizenship Act". This language
suggests that he used the Re Pourghasemi physical presence test.
15 If
that is so, the finding that Ms. Mera had satisfied the requirements of the
physical presence test is perverse, given that the Judge had specifically found
as a fact that Ms. Mera had only been physically present in Canada for 922 days
during the relevant period, making her 173 days short of the requisite 1095
days.
16 If,
as Ms. Mera suggests, the Citizenship Judge intended to apply the one of the
more qualitative tests for residency, he failed to explain how he arrived at
the conclusion that she had established residency in Canada. There is no
indication that he considered the fact that Ms. Mera continues to own a home in
Ecuador, and that she does not own a home in Canada. While this is by no means
determinative of the issue of residency, they are relevant considerations that
did have to be addressed in determining whether Ms. Mera had established
residency in Canada.
17 Nor
did the Citizenship Judge consider a number of the Re
Koo factors in order to determine where Ms. Mera "regularly,
normally or customarily lives" or had "centralized her mode of
existence".
18 For
example, no consideration appears to have been given to whether Ms. Mera's
physical presence in Canada indicates that she was returning home to Canada
after her lengthy trips to Ecuador, or whether she was just visiting Canada
from her home in Ecuador. Nor was any attempt made to determine whether her
connection to Canada was more substantial than her connection to Ecuador, in
light of her substantial ties to both countries.
19 Having
failed to properly apply any of the three recognized tests for residency, it
follows that the Citizenship Judge's conclusion that Ms. Mera had established
residence in Canada was unreasonable.
III. Conclusion
20 As
a result, the Minister's appeal is allowed, without costs. The Citizenship
Judge's September 12, 2013 decision is set aside. The matter is remitted to a
different Citizenship Judge for re-determination in accordance with one of the
recognized tests for residency.
21 As
was noted by counsel for the Minister, it is also open to Ms. Mera to make a
fresh application for citizenship. This would have the effect of creating a
different residency period for her new application. In light of information
provided by Ms. Mera's counsel at the hearing of the appeal, it appears that
she may well satisfy the physical presence test for this more recent four year
period.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
The Minister's appeal is
allowed, without costs.
Ms. Mera's application
for Canadian citizenship is remitted to a different Citizenship Judge for
re-determination in accordance with one of the recognized tests for
residency.
MACTAVISH J.
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