[2013] 1 F.C.R. D-10
CitIZENSHIP AND Immigration
Status in Canada
Citizens
Appeal from citizenship judge decision dismissing applicant’s citizenship application under Citizenship Act, R.S.C., 1985, c. C-29, s. 5(1)(c)—Applicant declaring 79 days of absence for total of 1 178 days of physical presence in Canada during relevant period—Citizenship judge not satisfied with information provided by applicant, basing her analysis on qualitative test set out in Koo (Re), [1993] 1 F.C. 286 (T.D.) to determine whether applicant having centralized life in Canada—Citizenship judge noting applicant not providing any evidence of employment in Canada, seeming not to know what information was in his income tax statements, confused about his residence, travels—Whether citizenship judge committing reviewable error—When applicant demonstrating physical presence of at least 1 095 days in Canada during relevant period, citizenship judge cannot ignore this evidence in order to rely on qualitative test—Illogical, contrary to legislation to apply qualitative criterion when applicant establishing presence in Canada for a minimum of 1 095 days during relevant period—Plain reading of Act, s. 5(1)(c) indicating s. 5(1)(c) based on physical presence test—Physical presence test complying best with Act—However, considering most case law favouring qualitative approach, qualitative test should not be automatically disregarded for quantitative test—When physical presence test not met, citizenship judge may rely on qualitative approach—However, when reliable evidence demonstrating that applicant having accumulated minimum required days, not open for citizenship judge to use another approach—In present case, citizenship judge ignoring many significant elements confirming applicant’s statement that applicant only away for 79 days—Citizenship judge could not set aside this evidence without ruling on applicant’s presence in Canada during period set out by Act—Citizenship judge therefore erring in applying Koo approach when overwhelming evidence on file supporting conclusion that applicant physically present in Canada—Appeal allowed.
Zhou v. Canada (Citizenship and Immigration) (T-955-12, 2013 FC 19, Tremblay-Lamer J., judgment dated January 9, 2013, 12 pp.)