Latest Immigration Decision

El Ocla v Canada (Minister of Citizenship & Immigration)

Decider: R.L. Barnes J.

Court: Federal Court

Citation: 2011 FC 533

Judgment: May 9, 2011

Docket:  T-1512-10

[19]           As I said in Ghaedi, above, a citizenship judge must apply the test for residency that was recognized in Re Koo, above, in cases where an applicant like Dr. El Ocla has not been physically present in Canada for 1095 days during the preceding four years but presents evidence that he has centralized his mode of living here.  Where, as in this case, a citizenship judge applies only the physical presence test, he or she commits an error of law reviewable on the basis of correctness.

[20]           It is simply not an acceptable or tolerable situation that some applicants with perhaps less deserving claims to Canadian citizenship than Dr. El Ocla are successful because they have the good fortune to appear before a citizenship judge who chooses to apply the qualitative test for residency.  Although many have said that this is a problem that can best be solved by Parliament, that is a solution that has not been forthcoming for more than 30 years and the suggestion is of scant comfort to people like Dr. El Ocla who are the victims of a lack of legislative clarity and a state of judicial inconsistency that has existed for far too long.