Date: 20080616
Docket: T-1600-07
Citation: 2008 FC 742
Ottawa, Ontario, June 16,
2008
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
EMAD HARB SALAMA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
At the conclusion of the hearing in this matter I indicated that the
appeal would be dismissed with written reasons to follow. These are my reasons
for dismissing the appeal.
[2]
This is an appeal by the Minister of Citizenship and Immigration
pursuant to subsection 14(5) of the Citizenship Act, RSC 1985, c.C-29,
of the decision rendered by Citizenship Judge Robert M. Morrow on July 3, 2007,
approving Mr. Salama’s application for citizenship.
[3]
The Minister submits that the Citizenship Judge ignored and/or
misconstrued the evidence before him and erred in his application of the
residency test in Koo (Re), [1993] 1 F.C. 286 (T.D.).
[4]
An application for citizenship was submitted by Mr. Salama and his
family on July 6, 2004. In this application Mr. Salama declared 61 days of
absence from Canada between April 20, 2001 and July 6, 2004.
[5]
In May 2005 the Canadian Embassy in Riyadh received what it described as
a “poison pen letter”, which has subsequently been lost, which stated that Mr.
Salama had not been in Canada during the period claimed but had been working
for Johnson & Johnson in Saudi Arabia. A Visa Officer made contact with
someone at the company and was told that Mr. Salama had been working full-time
for the past seven years with no noticeable absences from work.
[6]
On August 31, 2005, the Canadian Embassy received a second letter from
the same source confirming the information contained in the earlier
correspondence and providing more detail concerning Mr. Salama and his family.
[7]
On October 27, 2005, Mr. Salama completed a Residence Questionnaire in
which he declared 129 days of absence from Canada between December 19, 2003 and
October 27, 2005.
[8]
The Minister asked Mr. Salama to provide his passport and travel
documentation used to enter Canada and any valid or expired passport document
given to him since his entry to Canada. Mr. Salama provided a copy of his
passport issued August 10, 2005, but stated that the other travel documents and
previous passport “is spoiled (not available)”.
[9]
There was evidence before the Citizenship Judge as to Mr. Salama’s
travel after the date of application but that evidence does not go to the issue
of the number of days he spent in Canada in the period prior to the application
date.
[10]
The Citizenship Judge in his reasons identified the central issue: “the
problem has been that he was accused of being in Saudi Arabia during the time
he was claiming to have been in Canada during the four years prior to his date
of application". The Citizenship Judge states as his reason for accepting
the application:
He has told me that this was not
true and that he was the victim of someone trying very hard to bring harm and
difficulty to him and other members of his family.
I explained the significance of
his telling the truth in signing the attestation to this effect and he has also
submitted a statutory declaration (attached) to further support his statement.
I believe him and further believe that the person in question was the one who
gave the false information to our Embassy in Riyadh.
I believe he has been in Canada
more than enough to satisfy our residency requirement. I approve the
application.
[11]
It cannot be said that the Citizenship Judge ignored the evidence before
him or that he was not alive to the issue of whether or not Mr. Salama was
physically in Canada when he claimed. The Citizenship Judge preferred the
evidence of Mr. Salama as to his whereabouts in the four years prior to his
application, supported by his attestation and statutory declaration, over the
hearsay evidence submitted by the Minister. In my view, that was a finding
open to him.
[12]
The question as to the number of days an applicant for citizenship has
actually been present in Canada is a question of fact alone. Once the
Citizenship Judge accepted the evidence of Mr. Salama, there was no need for
him to then consider the Koo factors as Mr. Salama had more than the
minimum number of days of residency in Canada required under subsection 5(1)(b)
of the Act.
[13]
For these reasons this appeal is dismissed, with costs which I fix at
$1500.00.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. This
appeal is dismissed with costs fixed in the amount of $1500.00.
“Russel W. Zinn”
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