Date: 20100309
Docket: T-1424-09
Citation: 2010 FC 271
Ottawa, Ontario, March 9,
2010
PRESENT: THE CHIEF JUSTICE
BETWEEN:
ELIAS
ANDRAOS HAWA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
citizenship judge was not satisfied that the applicant, who had the burden of
proof, established his residency requirement under s. 5(1)(c) of the Citizenship
Act. On the basis of my review of the record, it was open to the
citizenship judge to make this finding.
[2]
Both
parties agreed that the relevant time period in this case is March 27, 2003 to
March 27, 2007, as indicated in the handwritten notes of the citizenship
judge. The different relevant period typed in the second paragraph of the
reasons for decision is simply a lapse. The substantive portions of the
reasons disclose that the citizenship judge understood that the relevant period
did not extend beyond March 2007.
[3]
The
principal issue raised by the applicant in this appeal is one of procedural
fairness. In his view, the citizenship judge failed to confront him with what
he characterizes as negative credibility findings.
[4]
After
noting in her reasons that she informed the applicant at the end of the hearing
that his documentation was insufficient to establish his residency requirement,
the citizenship judge later stated: “These inconsistencies give rise to
questions regarding the credibility of the information provided by the
Applicant.”
[5]
In
my view, the comments of the citizenship judge concerning credibility are
peripheral to the finding that the applicant had not established the required
number of days of residence in Canada.
[6]
The
applicant was told in 2001 and 2005 to withdraw his application for citizenship
for reasons of insufficiency concerning the residency requirement. In this
application for citizenship, which was filed in 2007, the citizenship judge
provided the applicant with a further opportunity after the hearing to provide
supplementary information to better his file and he failed to do so. The
documents he proffered were outside the relevant period.
[7]
The
applicant argues that his submissions be assessed against “a fairly high
standard of procedural fairness”: Sadykbaeva v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1018 at paragraph 15 and Qureshi
v. Canada (Minister of
Citizenship and Immigration), 2009 FC 1081 at paragraph 23. The
content of the duty of fairness will depend in part on the nature of the
determination process stipulated in the Citizenship Regulations, SOR
93-246, particularly at ss. 11 and 12, which do not appear to have been
canvassed by counsel in Sadykbaeva or Qureshi. Also, the
applicant’s ability to re-apply for citizenship after a negative decision, and
even after an unsuccessful appeal of that decision, is a factor which appears
to me to be relevant in assessing the requirements of the duty of fairness in
citizenship cases. In any event, I am far from satisfied that the applicant
has established a breach of procedural fairness even on the standard which he
argues is applicable in this case.
[8]
In
summary, the decision of the citizenship judge discloses no breach of
procedural fairness, even taking into account the applicant’s affidavit, nor
any reviewable error which would warrant the Court’s intervention in this
appeal. In these circumstances, the appeal will be dismissed.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that the
applicant’s appeal of the decision of the citizenship judge, dated July 15,
2009, is dismissed. The applicant shall pay the respondent costs in the amount
of $300.
“Allan
Lutfy”
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