Date:
20041103
Docket:
T-330-04
Citation:
2004 FC 1486
BETWEEN:
RAFIK
ABDERRAHIM
Applicant
-
and -
THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is
an appeal pursuant to subsection 14(5) of the Citizenship Act,
R.S.C. 1985, c. C‑29 (the Act) from a decision of Hon. Gilbert
Decoste, citizenship judge, dated December 18, 2003, rejecting the
applicant’s citizenship application on the ground that the residence conditions
contained in paragraph 5(1)(c) of the Act had not been met.
[2] Paragraph 5(1)(c)
of the Act reads as follows:
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5.
(1) The Minister shall grant citizenship to any person who,
. . . . .
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5.
(1) Le ministre attribue la citoyenneté à toute personne qui, à la
fois :
. . .
. .
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(c) has
been lawfully admitted to Canada for permanent residence, has not ceased
since such admission to be a permanent resident pursuant to section 24
of the Immigration Act, and has, within the four years immediately
preceding the date of his application, accumulated at least three years
of residence in Canada calculated in the following manner:
(i) for every day during which the person was
resident in Canada before his lawful admission to Canada for permanent
residence the person shall be deemed to have accumulated one‑half of a
day of residence, and
(ii) for every day during which the person was
resident in Canada after his lawful admission to Canada for permanent
residence the person shall be deemed to have accumulated one day of
residence;
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c) a été légalement admise au Canada à
titre de résident permanent, n’a pas depuis perdu ce titre en application de
l’article 24 de la Loi sur l’immigration, et a, dans les quatre
ans qui ont précédé la date de sa demande, résidé au Canada pendant au moins
trois ans en tout, la durée de sa résidence étant calculée de la manière
suivante :
(i) un demi‑jour pour chaque jour de résidence
au Canada avant son admission à titre de résident permanent;
(ii) un jour pour chaque jour de résidence au Canada
après son admission à titre de résident permanent;
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[3] Rafik
Abderrahim (the applicant) was born in Algeria in 1950. He arrived in Canada
and was admitted as a permanent resident on March 26, 1998. He submitted
his application for Canadian citizenship on June 12, 2002.
[4] On a
preliminary basis, the respondent submitted that Exhibits A‑4 and A‑5
attached to the applicant’s affidavit, and all the allegations relating to
them, should be struck out as they were not submitted to the citizenship judge
nor considered by him in his decision. Under paragraph 300(c) of
the Federal Court Rules (1998), SOR/98-106, an appeal brought under
subsection 14(5) of the Act must be governed by the rules applicable to
judicial review. An application for judicial review does not allow the parties
to submit new evidence (Gitxsan v. Hospital Employees’ Union,
[2000] 1 F.C. 135 (F.C.A.)). In Canada (Minister of Citizenship and
Immigration) v. Hung (1998), 47 Imm. L.R. (2d) 182, Rouleau J. of this
Court noted in particular that new evidence could not be submitted in an appeal
from a decision of a citizenship judge. I therefore consider the respondent’s
objection to be valid and find that Exhibits A‑4 and A‑5 are
inadmissible in evidence.
[5] The
applicant argued essentially that the citizenship judge misunderstood the
evidence regarding his residence and his substantial connection with Canada.
The applicant noted, in particular, that the judge erred in calculating
absences during the four-year qualifying period preceding the date of his
Canadian citizenship application.
[6] In
general, I consider on reviewing the record that the impugned decision is based
on significant evidence, which prevents me from taking the place of the
citizenship judge in weighing that evidence.
[7] Specifically,
I consider that even if the citizenship judge erred in calculating the number
of days the applicant was absent (he mentioned 942 days), that error is not
significant as the applicant himself indicated in his citizenship application
that he was absent for 864 days because of his work abroad. As the applicant
was not in Canada for 596 days during the reference period, he was far from
meeting the minimum residence requirement of 1,095 days, which sufficed for the
citizenship judge to reasonably deny his application.
[8] In Re
Pourghasemi (1993), 19 Imm. L.R. (2d) 259, at 260, Muldoon J. set out
the purposes underlying paragraph 5(1)(c) of the Act:
. . . the purpose . . . is to insure that everyone who
is granted precious Canadian citizenship has become, or at least has been
compulsorily presented with the everyday opportunity to become,
“Canadianized”. This happens by “rubbing elbows” with Canadians in shopping
malls, corner stores, libraries, concert halls, auto repair shops, pubs,
cabarets, elevators, churches, synagogues, mosques and temples – in a word
wherever one can meet and converse with Canadians – during the prescribed three
years. One can observe Canadian society for all its virtues, decadence,
values, dangers and freedoms, just as it is. That is little enough time in
which to become Canadianized. If a citizenship candidate misses that
qualifying experience, then Canadian citizenship can be conferred, in effect,
on a person who is still a foreigner in experience, social adaptation, and
often in thought and outlook. If the criterion be applied to some citizenship
candidates, it ought to apply to all. So, indeed, it was applied by Madam
Justice Reed in Re Koo, T-20-92, on December 3, 1992 [reported in
(1992), 59 F.T.R. 27, 19 Imm. L.R. (2d) 1], in different factual circumstances,
of course.
(See also this
Court’s judgments in Re Afandi (November 6, 1998), T‑2476‑97,
M.C.I. v. Kam Biu Ho (November 24, 1998), T‑19‑98, M.C.I.
v. Chen Dai (January 6, 1999), T‑996‑98, M.C.I. v. Chung Shun
Paul Ho (March 1, 1999), T‑1683‑95, M.C.I. v. Fai Sophia Lam
(April 28, 1999), T‑1524‑98, M.C.I. v. Su‑Chen Chiu (June
9, 1999), T‑1892‑98, M.C.I. v. Chi Cheng Andy Sun
(June 6, 2000), T‑2329‑98, Oi Hung Vera Hui v. M.C.I.
(June 6, 2000), T‑1338‑99 and Martin Long Ying Lo v. M.C.I.
(June 6, 2000), T‑959‑99.)
[9] This
Court has held that a correct interpretation of paragraph 5(1)(c)
of the Act does not require a person to be physically present in Canada
throughout the 1,095-day prescribed period when there are special and
exceptional circumstances. However, I feel that actual presence in Canada is
still the most relevant and important factor in determining whether a person
has his or her “residence” in Canada within the meaning of this provision. As I
have said several times, a too lengthy absence during this minimum period, even
if temporary, is contrary to the spirit of the Act, which already allows a
person who has been lawfully admitted to Canada for permanent residence not to
reside there for one of the four years preceding the date on which he or she
applies for citizenship.
[10] For all
these reasons, the applicant’s appeal is dismissed.
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YVON
PINARD
JUDGE
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OTTAWA, ONTARIO
November 3, 2004
Certified true
translation
Jacques Deschênes,
LLB
FEDERAL
COURT
SOLICITORS
OF RECORD
DOCKET: T-330-04
STYLE OF CAUSE: RAFIK
ABDERRAHIM v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal,
Quebec
DATE OF HEARING: September
23, 2004
REASONS FOR ORDER BY: Pinard
J.
DATED: November
3, 2004
APPEARANCES:
Khadidja Haddad FOR
THE APPLICANT
Ian Demers FOR
THE RESPONDENT
SOLICITORS OF RECORD:
Khadidja Haddad FOR
THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR
THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
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