Date: 20010912
Docket: T-2271-00
Neutral Citation: 2001 FCT 1015
Ottawa, Ontario, Wednesday the 12th day of September 2001
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
HARVEY BERK
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] Mr. Berk is a 64 year old citizen of the United States of America who landed in Canada on January 10, 1997. On February 23, 2000, Mr. Berk completed an application for Canadian citizenship on his own behalf and on behalf of his minor daughter.
[2] Mr. Berk was physically present in Canada for 733 days during the 4 years preceding his citizenship application. He therefore had a shortfall of 362 days with respect to meeting the three-year residence requirement contained in paragraph 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29 ("Act"). Mr. Berk was therefore required to attend an interview before a citizenship judge. Subsequently, Mr. Berk was notified that his application for citizenship was not approved because of his failure to meet the residence requirement. Mr. Berk appeals from that decision pursuant to subsection 14(5) of the Act.
[3] I am satisfied that the citizenship judge interpreted the provisions of paragraph 5(1)(c) of the Act to require physical presence in Canada.
[4] I reach that conclusion because in the letter advising Mr. Berk that his application for citizenship was not approved, the citizenship judge wrote as follows:
You did not comply with subsection 5(1)(c) of the Act which requires that an applicant for citizenship must have accumulated at least three years of residence in Canada within the four years immediately preceding the date of his application in order to qualify for Canadian Citizenship.
[5] In the notice to the Minister of the decision of the citizenship judge, the citizenship judge expressed his reasons as follows:
Because of travel to U.S. has been physically present for only 733 days. Almost 1 year short. Needs more time to acquire 1095.
[6] Additionally, Mr. Berk in his affidavit in support of his appeal swore that during the course of the interview the judge stated to him "[t]he law indicates there is no credit for any travelling outside of Canada".
[7] In view of decisions of this Court such as Pourghasemi (Re), (1993) 19 Imm. L.R. (2d) 259 (F.C.T.D.), this was an interpretation of paragraph 5(1)(c) of the Act reasonably open to the citizenship judge.
[8] As the citizenship judge erred neither in fact nor in the application of those facts to an available interpretation of the statutory test, the appeal is dismissed.
ORDER
[9] This Court orders that the appeal is dismissed.
"Eleanor R. Dawson"
Judge