Rigorous physical presence test for determination of citizenship residency requirements

APPEAL

Rigorous physical presence test for determination of citizenship residency requirements 

Foreign national of Pakistan became permanent resident of Canada, spent four days in Canada, then returned to college in California. Three years later, foreign national applied for citizenship. Foreign national had spent either 143 days or 159 days, as stated alternatively in her documents, being physically present in Canada in preceding four years. Citizenship judge granted citizenship on ground foreign national had centralized her mode of residence in Canada, and met requirements of s. 5(1)(c) of Citizenship Act (Can.), even though she fell short of Act’s requirement of 1,095 days of physical presence in Canada in four years preceding her application. Minister brought application to appeal and set aside decision of citizenship judge. Application granted. Decision of citizenship judge set aside, to be disposed of by different panel in accordance with directions concluding that foreign national had not met residency requirements of Act. Report of Standing Committee on Citizenship and Immigration made in 1994 considered s. 5(1)(c) of Act, and appropriateness of Federal Court’s decisions truncating requirements of physical presence to establish residency committee concluded that definition of residency in new Act should require significant degree of physical presence preceding citizenship application. While its recommendations did not lead to legislation changing residency test, committee did unanimously endorse rigorous physical presence test for determination of citizenship residency requirements. Extrinsic evidence endorsed continuing legislative purpose of s. 5(1)(c) that would impose either significant physical residency requirement very nearly approaching three years, or, as exception to rule, some other truly analogous circumstance that can stand in for Canadianization.
Canada (Minister of Citizenship and Immigration) v. Naveen (Oct. 18, 2013, F.C., Peter Annis J., File No. T-1959-12) 235 A.C.W.S. (3d) 608.