Date: 20080710
Docket: T-1286-07
Citation: 2008 FC 860
Ottawa, Ontario, July 10,
2008
PRESENT: The Honourable Orville Frenette
BETWEEN:
AHMED
BASEM ABDEL RAHMAN
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant, Ahmed Basem Abdel Rahman (Applicant) is appealing pursuant to
subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 (the Act)
and section 21 of the Federal Courts Act, R.S.C. 1985, c. F-7 of a
decision (the Decision) made June 8, 2007 in accordance with subsection 14(3)
of the Act by a Citizenship Judge to not approve the Applicant’s application
for citizenship.
I. Background
[2]
The
Applicant is a citizen of Egypt who became a permanent resident of Canada on July 18,
2001. He applied for citizenship on August 15, 2004. Hence, the relevant period
for determining his physical presence in Canada is August
15, 2000 to August 15, 2004 (the Period).
[3]
However,
the Applicant did not indicate in his submission to the Citizenship Judge
whether he had been physically present in Canada during the
portion of the Period before he became a permanent resident. His submissions
only covered the 1,123 days after he had become a permanent resident. During
that period, the Applicant was absent 29 days, meaning he was present 1,094
days. This is one day short of the 1,095 days required under paragraph 5(1)(c)
of the Act.
[4]
Unfortunately
for the Applicant, he had made an arithmetic error when he had prepared his
citizenship application and had erroneously believed he had had the 1,095 days
of physical presence required. Had the Applicant waited one more day before
making his citizenship application, he would have had the required number of
days of physical presence.
[5]
The
application for citizenship does state that one half of “the time you resided
in Canada before you
became a permanent resident” during the Period does count towards meeting the
residency test. Section 7 of the application asks the following two questions:
(a) Date you
became a permanent resident?
(b) When did you
first come to live in Canada if different from (a)?
[6]
The
Applicant was sent a Residence Questionnaire on June 28, 2006. The Residence
Questionnaire instructed the Applicant to complete the questionnaire “in
detail” and to “provide documentary evidence in support of your statements.”
The Residence Questionnaire noted that
The concept of residence is based on the
quality of your ties to Canada … It is your responsibility
to satisfy the citizenship judge that you meet all the requirements of the Citizenship
Act and Regulations.
[7]
The
Residence Questionnaire requested details on all of the Applicant’s “trips
outside the country since your arrival in Canada”. The
Applicant listed his absences subsequent to the date he received his permanent
residence but did not provide any information as to whether he had stayed in Canada before that
date.
[8]
The
Applicant also provided answers to the other questions in the Residence
Questionnaire and submitted documentation, including copies of his passport.
[9]
On
June 5, 2007, the Applicant attended a hearing before the Citizenship Judge.
The Applicant asserts the Citizenship Judge asked questions which the Applicant
answered but that the Applicant was not given an opportunity to provide
submission or explanations on any matter other than what was solicited through
questioning by the Citizenship Judge. The Applicant further alleges that the
Citizenship Judge never informed him that the Applicant was short one day of
physical presence or asked about the time the Applicant may have spent in
Canada during the Period prior to the date the Applicant became a permanent
resident.
[10]
In
her Decision, the Citizenship Judge found that the Applicant had only been
present 1,094 days in Canada. She then applied the test set out in by
Justice Barbara Reed in Re: Koo, [1993] 1 F.C. 286, 59 F.T.R. 27 (T.D.).
After considering the six questions set out in that test, she concluded that
“[o]n a balance of probabilities, I believe you have not centralized your mode
of existence in Canada.”
II. Applicable
Legislation
[11]
The
provisions of subsection 5(1) of the Act are as follows:
|
Grant
of citizenship
5.
(1) The Minister shall grant citizenship to any person who
(a) makes application for citizenship;
(b) is eighteen years of age or over;
(c) is a permanent resident within the
meaning of subsection 2(1) of the Immigration and Refugee Protection Act, and
has, within the four years immediately preceding the date of his or her
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;
(d) has an adequate knowledge of one of
the official languages of Canada;
(e) has an adequate knowledge of Canada and of the responsibilities
and privileges of citizenship; and
(f) is not under a removal order and is
not the subject of a declaration by the Governor in Council made pursuant to
section 20.
|
Attribution
de la citoyenneté
5. (1)
Le ministre attribue la citoyenneté à toute personne qui, à la fois :
a) en fait la demande;
b) est âgée d’au moins dix-huit ans;
c) est un résident permanent au sens du
paragraphe 2(1) de la Loi sur l’immigration et la protection des réfugiés 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;
d) a une connaissance suffisante de
l’une des langues officielles du Canada;
e) a une connaissance suffisante du
Canada et des responsabilités et avantages conférés par la citoyenneté;
f) n’est pas sous le coup d’une mesure
de renvoi et n’est pas visée par une déclaration du gouverneur en conseil
faite en application de l’article 20.
|
III.
Discussion
(i) The
leap-year argument
[12]
The
Applicant argues that he had been present for the 1,095 required days. The
Citizenship Judge, however, had calculated the number of days as 1,094 days
because she did not count the leap day (February 29, 2004) towards the
Applicant’s physical presence.
[13]
The
Respondent objects to this argument on the basis it was not raised in the
pleadings. Because this is a textual argument, I believe it was properly
adduced.
[14]
The
Respondent also argues that the Applicant’s reasoning is fallacious because
paragraph 5(1)(c) of the Act only refers to “years”. I agree. In
order for the Applicant to meet the requirements of the Act, he must show that
he was physically present for three years, not for 1,095 days. Three years can
equal 1,095 days if and only if leap days are not included. As an example, a
person present from March 1, 2001 to February 29, 2004 would be present for
1,095 days if the leap day was counted but would be one day short of being
present for three years.
[15]
The
Respondent determines whether the three year statutory requirement has been met
by calculating the number of days present other than leap days. If an applicant
has 1,095 days (other than leap days) of physical presence, then the Respondent
concludes that the requirements of paragraph 5(1)(c) have been met. The
Respondent explains its methodology on the Citizenship and Immigration Canada
web-site. The Applicant has not presented any arguments as to why this
methodology is inconsistent with the Act.
[16]
It
is also noteworthy that the Applicant himself had not counted the leap day in
his initial calculations of physical presence. In his initial application, the
Applicant declared 1,123 days of basic residence and 28 days of absences to
obtain 1,095 days of physical presence. If the Applicant had included February
29, 2004 and had correctly calculated his absences, the Applicant would have
declared 1,124 days of basic residence and 29 days of absences to obtain 1,095
days of physical presence. There is nothing in the record that the Applicant
wanted the Citizenship Judge to include the leap day in calculating the number
of days of physical presence.
(ii) Procedural
Fairness
[17]
The
Applicant also argues that the Citizenship Judge breached the duty of procedural
fairness by failing to inform the Applicant that he was short the required
number of days and that the purpose of the hearing was to determine whether the
Applicant had sufficient ties to Canada in accordance with the Koo test.
Questions of procedural fairness are subject to a correctness standard upon
review.
[18]
In
Stine v. Canada (MCI) (1999), 173 F.T.R. 298, 2
Imm. L.R. (3d) 280, Justice Pelletier at para. 8 held in a citizenship case
that the citizenship judge has the duty to disclose concerns to the applicants.
However, other cases uphold that the presentation of information or evidence to
support an application lies upon the applicant and that the Citizenship Judge
has no obligation to divulge any concerns or ask the applicant for evidence to
support the claim. A Citizenship Judge is not obliged to inquire or to
interview to obtain information (see, for example, Poon v. Canada (MCI),
2001 FCT 232, 202 F.T.R. 45; So v. Canada (MCI), 2001 FCT 733, 107
A.C.W.S. (3d) 736).
[19]
The
Applicant had several opportunities to submit evidence of his physical presence
in Canada prior to
being granted permanent residence status, including on his application and the
Residence Questionnaire. Similarly, the Applicant was given (and took advantage
of) opportunities, to submit evidence and other information regarding his ties
to Canada. The
Applicant knew what test he had to meet and what evidence would support his
application.
[20]
Moreover,
I am not persuaded that another opportunity would have made any difference.
While the Applicant asserts in his written submissions before me that he was in
Canada for
“numerous occasions” during the Period prior to becoming a permanent resident,
he does not mention specific dates or provide evidence to support his bald
statement.
[21]
Procedural
fairness was satisfied in this case by the application, the Residence
Questionnaire and the interview by the Citizenship Judge. The Citizenship Judge
also conscientiously addressed the conditions set out in the Koo test.
For these reasons, I conclude that there is no reviewable error in the
Decision.
JUDGMENT
UPON reviewing the material
filed and hearing the submissions of counsel for both parties in Toronto on Wednesday, June 11,
2008;
NOW THEREFORE THIS COURT
ORDERS AND ADJUDGES that for the reasons given
above the Application is hereby dismissed without costs.
"Orville Frenette"
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