2011 FC, 2011 FC 1416

Federal Court Cour fédérale Date: 20111214 Docket: T-425-11 Citation: 2011 FC 1416 Ottawa, Ontario, this 14th day of December 2011 Present: The Honourable Mr. Justice Pinard BETWEEN: Luftar HYSA Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR JUDGMENT AND JUDGMENT [1] On March 14, 2011, Luftar Hysa (the “applicant”) filed the present appeal, under subsection 14(5) of the Citizenship Act,R.S.C. 1985, c. C-29 (the “Act”), from a decision of Judge Marcel Tremblay, the Citizenship Judge. The latter refused the applicant’sapplication for citizenship due to his failure to meet the residency requirement under paragraph 5(1)(

c) of the Act. During the relevantperiod set out in paragraph 5(1)(

c) of the Act, the applicant was physically present in Canada for only 173 days, as he was living andworking in Mexico, leaving him short 922 days from the required 1,095 days of physical presence in the country. [2] The applicant argues that the Citizenship Judge erred in failing to clearly state the applicable test for residency, in failing toproperly apply the Re Koo, (FC), [1993] 1 F.C. 286 [Re Koo] test to evaluate his centralized mode of existence inCanada, and in failing to provide adequate reasons. I do not agree.

Consequently, the appeal is dismissed. [3] This appeal is dismissed on the basis of Martinez-Caro v. The Minister of Citizenship and Immigration, 2011 FC 640[Martinez-Caro]. In that case, my colleague Justice Donald J. Rennie thoroughly reviewed the jurisprudence on the residencyrequirement of paragraph 5(1)(

c) of the Act, and provided a compelling analysis of the relevant applicable principles. I fully adopt hisreasoning which lead to the following conclusion contained at paragraphs 52 and 53 of the decision, wherein Mr. Justice Rennie refers toRe Pourghasemi, [1993] F.C.J. No. 232, 62 F.T.R. 122 [Re Pourghasemi], and Rizzo & Rizzo Shoes Ltd. (Re), (SCC),[1998] 1 S.C.R. 27: [52] In my view therefore, the

interpretation of the residency provision of the Citizenship Act is subject to the standard of correctnessand that residency means physical presence in Canada.

[53] It is my opinion that Re Pourghasemi is the

interpretation that reflects the true meaning, intent and spirit of subsection 5(1) (

c) of the Act : Rizzo , paras 22 and 41 . For this reason it cannot be said that the Citizenship Judge erred in applying the Re Pourghasemi test. Furthermore, the Citizenship Judge correctly applied the Re Pourghasemi test in determining that a shortfall of 771 days prevented a finding that 1,095 days of physical presence in Canada had been accumulated. [ 4 ] In the case at bar, the Citizenship Judge, in his reasons, clearly indicated that the applicant was absent from Canada a total of 1,287 days. Consequently, the latter did not meet the physical residency requirement under paragraph 5(1) (

c) of the Act , failing to meet the test in Re Pourghasemi . The applicant not having been physically present in Canada for the equivalent of three years, the Citizenship Judge went on to consider whether these absences qualified nonetheless as a period of residence in Canada, considering his centralized mode of existence. [ 5 ] In my view, in light of Martinez-Caro , it would have been sufficient for the Citizenship Judge to solely base his decision on Re Pourghasemi , without going on, as he did, to further consider the elements of the test stated in Re Koo .

The Citizenship Judge, in the case at bar, was correct in applying the Re Pourghasemi test and in concluding that a presence of only 173 days in Canada was insufficient to establish residency: the applicant had not accumulated 1,095 days of physical presence, as required by paragraph 5(1) (

c) of the Act . Thus, this conclusion as to the applicant’s lack of physical presence was sufficient for the Citizenship Judge to refuse the applicant’s citizenship application. Moreover, the Citizenship Judge’s reasons are sufficient as they clearly allowed the applicant to know why his application for Canadian citizenship was refused: he did not meet the residency requirement under paragraph 5(1)(

c) of the Act, having been absent from Canada for 1,287 days. [ 6 ] For the above reasons, the appeal is dismissed. There is no order as to costs. JUDGMENT The appeal from the decision of Citizenship Judge Marcel Tremblay, refusing the applicant’s application for citizenship due to his failure to meet the residency requirement under paragraph 5(1) (

c) of the Citizenship Act , R.S.C. 1985, c. C-29, is dismissed. There is no order as to costs. “Yvon Pinard” Judge FEDERAL COURT NAME OF COUNSEL AND SOLICITORS OF RECORD DOCKET: T-425-11 STYLE OF CAUSE: Luftar HYSA v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING: Montréal , Quebec DATE OF HEARING: October 18, 2011 REASONS FOR JUDGMENT AND JUDGMENT: Pinard J. DATED: December 14, 2011 APPEARANCES : Me Mitchell Goldberg FOR THE APPLICANT Me Catherine Brisebois FOR THE RESPONDENT SOLICITORS OF RECORD : Blanshay Goldberg Berger FOR THE APPLICANT Montréal, Quebec Myles J. Kirvan FOR THE RESPONDENT Deputy Attorney General of Canada