By Sukhram Ramkissoon
The decision of a citizenship judge that a Trinidadian woman met the residency requirements for Canadian citizenship be set aside and her application for citizenship be re-determined by another judge.
For the purposes of this article, I will refer to the woman as Pat who became a permanent resident of Canada on December 22, 2005, along with her husband and two children. She also has a third child who was born in Canada.
She applied for Canadian citizenship on February 1, 2012 and subsequently appeared for a hearing before a citizenship judge. The judge issued a decision dated October 6, 2015, in which he concluded that Pat met the residency requirements for Canadian citizenship under the Citizenship Act. . The Minister of Citizenship and Immigration was not in agreement and applied for judicial review of this decision.
According to the facts of the case, the citizenship judge applied the residency test which requires an applicant to establish that he or she has been physically present in Canada for 1095 days during the four year period preceding the application.
In setting aside the decision, the judge of the Federal Court stated that even when the reasons of the citizenship judge are examined in combination with the record before him, it is not possible to understand how he reached the conclusion that the woman had been physically present for the required number of days.” The decision is therefore unreasonable and must be set aside,” the judge ruled.
Pat was required to prove that she resided in Canada for at least 1095 days in the preceding four years from February 1, 2008 to February 1, 2012. On her application she declared her absences from Canada during the Relevant Period, and she subsequently completed a Residence Questionnaire which declared the same absences. An officer of Citizenship and Immigration Canada then completed a File Preparation and Analysis Template, noting that she had reported 343 days of absence in the Relevant Period, for a declared physical presence of 1117 days.
The officer performed an analysis of her passport and records of entries to Canada contained in an Integrated Customs Enforcement System [ICES] report issued by the Canada Border Service Agency and concluded there were a number of slight discrepancies in her absence declarations. These increased Pat’s days of absence to at least 351 and reduced her physical presence to 1109 days.
The officer also noted undeclared entries in the ICES report which reduced her physical presence further but, as there were no corresponding foreign entry stamps in her passport, the total number of absence days was unknown. Based on two undeclared airport entries and her pattern of declared absences being always longer than 10 days, the Officer concluded that her physical presence was likely below 1095 days. The case was therefore referred to a citizenship judge for consideration.
The Minister’s position is that the judge reached unreasonable conclusions about Pat’s physical presence in Canada that are unsupported by the evidence and that his reasons fail to provide sufficient justification for the decision. The ctizenship judge concluded that Pat was “forthcoming and credible” and that she “addressed all the concerns presented to her” but did not refer to any explanations that she had provided. The Minister also argues that the judge’s conclusion that the declared absences were not disputed by the documentation did not address the officer’s concerns about undeclared entries to Canada.
The learned judge stated that “I have no difficulty with the judge adopting that calculation rather than duplicating the same mathematics. However, the officer’s calculation of 1109 days of presence was derived from the absences Pat had declared, and the officer expressly raised concern about additional undeclared absences, evident from the ICES report, which would further reduce this number of days. My decision to allow this application for judicial review is based on the judge’s failure to address this concern”.
SUKHRAM RAMKISSOON is a member of ICCRC and specializes in Immigration Matters at No. 3089 Bathurst Street, Suite 219A, Toronto, Ontario. M6A 2A4 Phone 416 789 5756.