Balta v. Canada (Minister of Citizenship and Immigration), 2011 FC 1509

• Judge: Bédard, J.
• Court: Federal Court (Canada)
• Case Date: December 07, 2011
• Jurisdiction: Canada (Federal)
• Citations: 2011 FC 1509;(2011), 403 F.T.R. 134 (FC)

Balta v. Can. (M.C.I.) (2011), 403 F.T.R. 134 (FC)

MLB headnote and full text

Temp. Cite: [2012] F.T.R. TBEd. JA.012

Margarita Balta (applicant) v. Minister of Citizenship and Immigration (respondent)

(T-871-11; 2011 FC 1509)

Indexed As: Balta v. Canada (Minister of Citizenship and Immigration)

Federal Court

Bédard, J.

December 21, 2011.

Summary:

The applicant's citizenship application was denied on the basis of the physical presence test (Citizenship Act, s. 5(1)(c)). The applicant appealed.

The Federal Court dismissed the appeal.

Aliens - Topic 2525

Naturalization - Qualifications - Residence - The applicant's citizenship application was denied on the basis of the physical presence test (Citizenship Act, s. 5(1)(c)) - She was 200 days short of the required 1095 days of physical presence in Canada because she had been out of the country to care for her sick mother - The applicant, who was well established in Canada, appealed, arguing that it was unfair to allow judges to choose between different tests and unjust that the outcome of one's application depended on which citizenship judge was assigned to the file - She also claimed that it was unfair for the judge to ignore the humanitarian and personal circumstances - The Federal Court dismissed the appeal - The court stated that although it had utmost sympathy for the applicant and understood her frustration and incredulity, the current state of the law allowed citizenship judges to choose from among the three recognized tests for assessing the residency requirement under the Citizenship Act - See paragraphs 1 to 14.

Aliens - Topic 2525

Naturalization - Qualifications - Residence - A citizenship judge rejected the applicant's citizenship application on the basis of the physical presence test (i.e., she was 200 days short of being physically present in Canada for 1095 days during the four years prior to submitting her application (Citizenship Act, s. 5(1)(c)) - The applicant appealed, arguing that the judge should have counted her days of presence in Canada between submission of her application and the date that her application was adjudicated - The Federal Court rejected this argument - The court stated that according to s. 5(1)(c), the requirement for establishing residency had to be fulfilled on the date that the application was submitted - See paragraph 14.

Aliens - Topic 2562

Naturalization - Appeals and judicial review - Scope of appeal or review - The Federal Court stated that it was well established that a citizenship judge's determination as to whether a person met the residency requirement in the Citizenship Act was a question of mixed fact and law which was reviewable under the reasonableness standard - See paragraph 5.

Cases Noticed:

Pourghasemi, Re (1993), 62 F.T.R. 122; 39 A.C.W.S.(3d) 251 (T.D.), refd to. [para. 3].

El-Khader v. Canada (Minister of Citizenship and Immigration) (2011), 386 F.T.R. 142; 2011 FC 328, refd to. [para. 5].

Raad v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 145; 97 Imm. L.R.(3d) 115; 2011 FC 256, refd to. [para. 5].

Chaudhry v. Canada (Minister of Citizenship and Immigration) (2011), 384 F.T.R. 117; 2011 FC 179, refd to. [para. 5].

Hao v. Canada (Minister of Citizenship and Immigration) (2011), 383 F.T.R. 125; 2011 FC 46, refd to. [para. 5].

Cardin v. Canada (Minister of Citizenship and Immigration) (2011), 382 F.T.R. 164; 2011 FC 29, refd to. [para. 5].

Deshwal v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 769; 2011 FC 1248, refd to. [para. 5].

Chowdhury v. Canada (Minister of Citizenship and Immigration) (2009), 347 F.T.R. 76; 2009 FC 709, refd to. [para. 5].

Pourzand v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 276; 166 A.C.W.S.(3d) 222; 2008 FC 395, refd to. [para. 5].

Canada (Minister of Citizenship and Immigration) v. Takla (2009), 359 F.T.R. 248; 2009 FC 1120, refd to. [para. 5].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 6].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 6].

Papadogiorgakis, Re, [1978] 2 F.C. 208; 88 D.L.R.(3d) 243 (T.D.), refd to. [para. 9].

Koo, Re, [1993] 1 F.C. 286; 59 F.T.R. 27 (T.D.), refd to. [para. 9].

Lam v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 177; 87 A.C.W.S.(3d) 432 (T.D.), refd to. [para. 10].

Alinaghizadeh v. Canada (Minister of Citizenship and Immigration) (2011), 386 F.T.R. 150; 2011 FC 332, refd to. [para. 11].

Abbas v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 83; 2011 FC 145, refd to. [para. 11].

Murphy v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 276; 98 Imm. L.R.(3d) 243; 2011 FC 482, refd to. [para. 11].

Martinez-Caro v. Canada (Minister of Citizenship and Immigration) (2011), 391 F.T.R. 138; 98 Imm. L.R.(3d) 288; 2011 FC 640, refd to. [para. 11].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 16].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241; 151 D.L.R.(4th) 193, refd to. [para. 17].

Fletcher v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 653; 2008 FC 909, refd to. [para. 18].

Armstrong v. Canada (Attorney General) (2006), 291 F.T.R. 49; 2006 FC 505, refd to. [para. 18].

Statutes Noticed:

Citizenship Act, R.S.C. 1985, c. C-29, sect. 5(1)(c) [para. 2].

Counsel:

Margarita Balta, on her own behalf;

Catherine Brisebois, for the respondent.

Solicitors of Record:

Myles J. Kirvan, Deputy Attorney General of Canada, Montreal, Quebec, for the respondent.

This matter was heard in Montreal, Quebec, on December 7, 2011, before Bédard, J., of the Federal Court, who delivered the following judgment in Ottawa, Ontario, on December 21, 2011.