Federal Court


Citizenship judge did not apply qualitative assessment test

This was appeal from citizenship judge’s decision dismissing applicant’s application for Canadian citizenship. Applicant was citizen of United Kingdom. He was employed as offshore marine electrician. Applicant became landed immigrant in Canada in November 1999. Wife and daughter had been approved for Canadian citizenship. Family resided in Ontario in home applicant purchased in 2005. Applicant paid income tax only in Canada. There was no other country where applicant was regular resident. However, employment required him to leave Canada for six-week intervals to reside aboard ship. Due to applicant’s work he was only present in Canada 675 days, not 1,095 days required by s. 5(1)(c) of Citizenship Act (Can.). Applicant unsuccessfully applied for Canadian citizenship. Appeal allowed. Citizenship judge applied only strict physical presence test for residence. Where citizenship applicant did not meet physical presence test, citizenship judge must proceed to qualitative assessment and apply test set out in Koo (Re) (1992), 37 A.C.W.S. (3d) 435 (F.C. T.D.), which asked whether Canada was place where applicant regularly, normally or customarily lived or whether it was country in which he had centralized mode of existence. Citizenship judge did not apply Koo test to determine whether applicant was resident in Canada even though he was not physically present and failure to do so was error of law.

Burch v. Canada (Minister of Citizenship and Immigration)

(Nov. 30, 2011, F.C., O’Keefe J., File No. T-1958-10) 210 A.C.W.S. (3d) 223 (12 pp.).

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