Date: 20040901
Docket: T-1478-03
Citation: 2004 FC 1204
BETWEEN:
ALON VINOGRADOV
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
SIMPSON J.:
[1] The Applicant's appeal is brought pursuant to section 14(5) of the Citizenship Act, RSC 1985, c. C-29 (the "Act") from a decision of a Citizenship Judge (the "Judge") dated June 19, 2003 (the "Decision") in which she declined to approve his application for permanent residence and to recommend the exercise of discretion under sections 15(1) and 5(4) of the Act;
[2] This matter was heard in Toronto on Monday, August 30, 2004 in the presence of the self-represented Applicant and counsel for the Respondent.
[3] The Applicant takes no issue with the Judge's determination that his application failed to meet the residency requirement. This occurred because, following a conviction for possession of a weapon (the "Conviction"), the Applicant was given a probation order commencing on March 20, 2000 and ending on September 30, 2002. Since section 21 of the Act does not allow this time to be counted, he was 252 days short of his residency requirement.
[4] However, the Applicant does take issue with the Judge's refusal to exercise her discretion in favour of making a recommendation based on special and unusual hardship under section 5(4) of the Act. (It was acknowledged before me that the compassionate grounds in section 5(3) of the Act do not apply in this case).
[5] Although the evidence of the Conviction was a negative factor, at the time of the Decision the Judge also had evidence before her that, since 1998, the Applicant has been with the military. He had served as a soldier in the Governor General's Horse Guards, Primary Reserve (the "Reserve"). He was promoted to Corporal in 2002 and was employed as the driver of an armoured vehicle. Further, in spite of his Conviction, the military recommended that his application for citizenship be granted.
[6] Based on this evidence it is my conclusion that it was open to the Judge to decline to exercise her discretion under section 15(1) of the Act.
[7] However, there is new evidence which was not available at the time the Judge made her Decision. It can be summarized as follows:
- The Applicant has now met the residency requirement of 1095 days. This was acknowledged by counsel for the Respondent.
- The Applicant has just graduated from Ryerson University with a degree in Mechanical Engineering. This fact was not in dispute.
- The Reserve requires the Applicant to be a Canadian citizen to continue his employment and has already given him two extensions of employment in the hope that his citizenship will be granted. This was not disputed.
- the Reserve has not withdrawn its recommendation that the Applicant be granted citizenship.
[8] I have concluded that, on the basis of this new evidence, the Appeal will be allowed.
"Sandra J. Simpson"
J.F.C.
Toronto, Ontario
September 1st, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1478-03
STYLE OF CAUSE: ALON VINOGRADOV
Applicant
and
MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: AUGUST 30, 2004
REASONS FOR ORDER BY: SIMPSON J.
DATED: SEPTEMBER 1, 2004
APPEARANCES BY:
ALON VINOGRADOV
FOR THE APPLICANT (Self-Represented)
MATINA KARVELLAS
FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
ALON VINOGRADOV
Toronto, Ontario FOR THE APPLICANT (Self-Represented)
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR THE RESPONDENT
FEDERAL COURT
Date: 20040901
Docket: T-1478-03
BETWEEN:
ALON VINOGRADOV
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
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