In a recent Federal Court Decision rendered on March 22, 2016, an applicant, whom we will refer to as Joshua, was granted Canadian citizenship. Although, he fell short 7 days of the required 1095 days of residence in the country.

Interestingly, the Minister of Citizenship and Immigration by way of representation, made an application for leave and judicial review to the Federal Court based on a decision made by a Citizenship Judge.  The Citizenship Judge granted citizenship to Joshua and the Minister believed this decision was contestable, due to the strict physical residency requirement to approve an application.

Joshua is a citizen of China who came to Canada as a student in 2001 and became a permanent resident in 2007. On December 3, 2009, he applied for Canadian citizenship, which at the time, he was required to meet 1095 days in Canada out of a 4-year period. Specifically, the time calculated would be from December 3, 2005 to his application date on December 3, 2009.

Joshua declared on his application that he was present in Canada for a total of 1088 days, leaving him a shortfall of 7 days from the minimum 1095 days as required by the Citizenship Act.

Several issues were raised by the Citizenship Officer and resolved to the satisfaction of the Citizen Judge. The issue in question arose out of the Citizenship Judge’s reasons of her decision regarding Joshua’s shortfall of 7 days of physical residence, specifically:

• With respect to the shortfall of 7 days, I am ready to grant him citizenship in spite of this. It is cruel to make him wait again from 2009 during which he filed his application. By now, he had already waited 6 ½ years. He is ready to become Canadian.
• Given the foregoing, in referring to the residency test set by Muldoon J. in Pourghasemi, (Re):[1993] F.C.J. No. 232, I find that, on a balance of probabilities, the Applicant has demonstrated that he resided in Canada for the number of days he claimed to reside in Canada and therefore met the residence requirement under s. 5(1)(c) of the Act.

Despite sharing the Citizenship Judge’s view that Joshua was ready to become a Canadian, it is very clear that whatever the residency test chosen by the Citizenship Judge, it is vital that the test be applied. If not, the decision must be rejected as being neither transparent nor intelligible.

The Honorable Mr. Justice Annis found that the Citizenship Judge clearly cited jurisprudence.  Referring to the strict physical presence test from the case of Pourghasemi, (Re): [1993] F.C.J. No. 232, Joshua did not meet that test by a shortfall of 7 days.

In Canada (Minister of Citizenship and Immigration) v Demurova, 2015 FC 872, where the applicant fell short of the 1095 days requirement by 2 days, the Federal Court found that the Citizenship Judge’s decision to disregard the shortfall and grant the application was unreasonable.

Therefore, in the circumstances of Joshua, his appeal was allowed and the decision set aside and the matter remitted to a different Citizenship Judge for re-determination.  In June 2015, changes to the Canadian Citizenship application were implemented, which was already discussed in this column, however take note when applying you must:

• have, since becoming a permanent resident, been physically present in Canada for at least 1460 days in the six (6) years immediately before you apply,
• have, since becoming a permanent resident, been physically present in Canada for at least 183 days during any four (4) calendar years that are fully or partially within the six (6) years immediately before you apply,
• have met any applicable requirement under the Income Tax Act to file income taxes for any four (4) taxation years that are fully or partially within the six (6) years immediately before you apply,
• intend to reside in Canada, to work outside Canada in or with, or to accompany certain family members employed in or with the Canadian Armed Forces, the federal public administration or the public service of a province outside Canada;
• be able to communicate (speak and understand) in English or French (if you are 65 years of age or older, this does not apply), and
• be able to demonstrate, in English or French, knowledge about Canada and the responsibilities and privileges of citizenship (if you are 65 years of age or older, this does not apply).

The lesson learned in this situation is to prove your residence in Canada, when applying for either your Permanent Residence Card and/or Canadian Citizenship.  A slight shortfall, may not make a difference in granting of these status’ in Canada, based on the case law.  But, what is relevant is to ensure that you have established and proven your physical presence in Canada.

SUKHRAM  RAMKISSOON    is a member of ICCRC  and specializes in Immigration Matters at No. 3089 Bathurst Street,  Suite 219A Toronto, Ontario. Phone 416 789 5756.