[2016] 3 F.C.R. D-10
Citizenship and Immigration
Status in Canada
Citizens
Appeal from Citizenship Judge decision finding applicant not meeting residence requirement under Citizenship Act, R.S.C., 1985, c. C-29, s. 5(1)(c) — Applicant attending university in Canada, becoming permanent resident — Having less than required 1 095 days of physical presence — Requesting that Citizenship Judge (Judge) apply qualitative test from Koo (Re), [1993] 1 F.C. 286 (T.D.) — Judge adopting analytical approach in Pourghasemi (Re) (1993), 19 Imm. L.R. (2d) 259 (F.C.T.D.) wherein potential citizen having to establish physical presence in Canada — Applicant relying on Dina v Canada (Citizenship and Immigration), 2013 FC 712, stating, inter alia, not advised of test Judge intending to apply — Whether: Judge breaching duty of procedural fairness owed to applicant; principle of judicial comity requiring Court to find breach of procedural fairness — Duty of procedural fairness met in present case — Any of three approaches to concept of residence can be applied by citizenship judges — Citizenship judges having to indicate in decision which test applied — Citizenship Judge herein clearly indicating in decision which test applied — Applicant’s submission before Citizenship Judge that Koo test should apply demonstrates he did not have legitimate expectation that Koo would be applied — Duty of procedural fairness owed to applicants by citizenship judges at lower end of spectrum — Applicant knew he had to meet either quantitative or qualitative test — No enhanced duty of procedural fairness requiring Judge to advise applicant that inclination was to apply particular test, invite rebuttal — Breach of procedural fairness not arising because applicant not alerted to something applicant clearly aware of, including state of the law — Judicial comity not at stake herein — Issue not same as in Dina — Appeal dismissed.
Fazail v. Canada (Citizenship and Immigration) (T-969-15, 2016 FC 111, Kane J., judgment dated February 1, 2016, 20 pp.)