Fernandes v. Canada (Minister of Citizenship and Immigration), 2003 FCT 305

Date: 20030312

Docket: T-409-01

Neutral citation: 2003 FCT 305

CALGARY, Alberta, Wednesday, the 12^th day of March, 2003.

Present:         THE HONOURABLE MADAM JUSTICE SNIDER

BETWEEN:

                                                   LOUIS PLACIDUS FERNANDES

                                                                                                                                                       Applicant

                                                                              - and -

                                  THE MINISTER OF CITIZENSHIP & IMMIGRATION

                                                                                                                                                  Respondent

                                              REASONS FOR ORDER AND ORDER

[1]                 Mr. Louis Placidus Fernandes (the "Applicant") is a citizen of Pakistan. Together with his family, he came to Canada on February 8, 1997 where he was granted landing. He applied for Canadian citizenship on April 18, 2000. By decision dated December 15, 2000, Citizenship Judge William L. Day (the "Citizenship Judge") denied his application. The Applicant seeks to set aside that decision.

Background

[2]                 During the three years preceding his application for citizenship, the Applicant was absent from Canada for 857 days and present in Canada for only 307 days. He was 788 days short of the three-year residency requirement set out in subsection 5(1) of the Citizenship Act R.S.C. 1985, c. C-29. The Applicant's absences were due, in part, to his employment with the Oman International Bank that required him to be outside Canada.

[3]                 The Applicant owns a house in Calgary and has acquired a number of other indicia of residency in this city. His wife and four children have been granted Canadian citizenship.

Relevant Statutory Provisions

[4]                 Subsection 5(1) of the Citizenship Act sets out the criteria for the granting of Canadian citizenship. Paragraph 5(1)(c) is at issue in this case:

[5]          Subsection 5(4) of the Citizenship Act provides for the granting of

citizenship in special cases:

(4) In order to alleviate cases of special and unusual hardship or to reward services of an exceptional value to Canada, and notwithstanding any other provision of this Act, the Governor in Council may, in his discretion, direct the Minister to grant citizenship to any person and, where such a direction is made, the Minister shall forthwith grant citizenship to the person named in the direction.

(4) Afin de remédier à une situation particulière et inhabituelle de détresse ou de récompenser des services exceptionnels rendus au Canada, le gouverneur en conseil a le pouvoir discrétionnaire, malgré les autres dispositions de la présente loi, d'ordonner au ministre d'attribuer la citoyenneté à toute personne qu'il désigne; le ministre procède alors sans délai à l'attribution.

Analysis

[6]    For the reasons that follow, I would dismiss this appeal.

Procedural Matter

[7]          One procedural error of significance is that the Applicant, who is self-represented, inadvertently commenced action by way of an application for judicial review under section 18.1 of the Federal Court Act R.S.C. 1985, c. F-7. The statutory basis for an appeal from a decision of a Citizenship Judge is found in subsection 14 (5) of the Citizenship Act and section 21 of the Federal Court Act. In the particular circumstances of this case, I am of the view that it would be in the interests of justice to rely on Rule 57 of the Federal Court Rules, 1998 to convert this application for judicial review to an appeal pursuant to subsection 14(5) of the Citizenship Act. Rule 57 provides that an originating document shall not be set aside only on the ground that a different originating document ought to have been used. The Respondent consented to this amendment.

Issue #1: Failure to Follow the Guidelines in Re Koo

[8]         The Applicant submitted that, although the Citizenship Judge purported to follow the test set out in Re Koo, [1993] 1 F.C. 286 (T.D.), he did not properly consider the factors set out by Reed J. in that case. In particular, the Applicant argued that the Citizenship Judge failed to consider the fact that the Applicant was overseas in order to establish a business and that, at the time of the hearing, the Applicant had resigned his position in Oman and was employed with a firm of Chartered Accountants in Calgary.

[9]        If the Citizenship Judge, "in clear reasons which demonstrate an understanding of the case law, properly decide that the facts satisfy their view of the statutory test in paragraph 5(1)(c), the reviewing judges ought not to substitute arbitrarily their different opinion of the residency requirement" (Lam v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 410 at para. 33 (T.D.) (QL)). In other words, the role of this Court is to verify that the Citizenship Judge properly applied the test of his choosing Canada (Minister of Citizenship and Immigration) v. Mindich, [1999] F.C.J. No. 978 (T.D.)(QL)).

[10]            In my view, the Citizenship Judge's decision indicates that he properly considered and applied the factors set out by Reed J. in Re Koo, supra. The Applicant was not physically present in Canada for a long period of time before his first absence, his absences were lengthy and are indicative of "a pattern of life rather than a temporary phenomenon," and he only returned to Canada six times during the three years preceding his citizenship application. Although his absences were for employment reasons, there is no indication that the Applicant attempted to obtain employment in Canada. Instead, due to his concerns regarding the economy in Alberta, the Applicant extended his contract of employment with the Oman International Bank. The Citizenship Judge recognized that the Applicant had a number of passive indicators of residence in Canada, all of which could be established without actually living in Canada.

[11]            When all of the evidence is considered, there is no indication that the Applicant had centralized his mode of living in Canada. As a result, the Citizenship Judge properly applied Re Koo, supra to this case and determined that citizenship should not be granted.

Issue #2: Failure to Consider all of the Evidence

[12]            In the Applicant's submission, there was adequate material available for the Citizenship Judge to exercise his discretion under subsection 15(1) of the Citizenship Act to make a recommendation under subsections 5(3) and (4).   

[13]            Subsection 5(3) is not applicable in this case.

[14]            A recommendation under subsection 5(4) of the Citizenship Act is highly discretionary and requires evidence of special and unusual hardship or of services of an exceptional value to Canada (Re Koo, supra). The Citizenship Judge's decision indicates that he recognized his obligation under subsection 15(1) of the Citizenship Act to consider whether a recommendation under subsections 5(3) and (4) was warranted.

[15]            With respect to this issue, the Applicant included in his "Affidavits and Documentary Exhibits" filed May 30, 2002, a number of documents that were not before the Citizenship Judge. He argued that the Citizenship Judge should have asked for these documents in order to fairly assess his citizenship application.

[16]            This application must proceed on the basis of the evidence that was before the Citizenship Judge, (Lamiecha et al. v. Canada (Minister of Employment and Immigration [1993] F.C.J. No. 1333 (T.D.)(QL)). Paragraphs 14 through 19 of the Applicant's "Affidavits and Documentary Exhibits", filed on May 30, 2002 refer to evidence not before the Citizenship Judge. In addition, the documents listed at paragraphs 8.1 through 8.5 of the "Affidavits and Documentary Exhibits" were not before the Citizenship Judge. As a result, this evidence will not be considered on this appeal.                      

[17]            Further, it is incumbent on the Applicant to place before the Citizenship Judge the evidence supporting his application. The failure of the Citizenship Judge to ask for these documents or further evidence is not an error.

[18]            Based on the material before him, the Citizenship Judge concluded as follows:

Before deciding upon your application I have, in accordance with Subsection 15(1) of the Act, considered whether to make a recommendation under subsection 5(3) and (4) of the Act. You did not file any material in support of my making a recommendation for the use of discretion. After having carefully considered all the circumstances of your case, I have decided that your case does not warrant making a favourable recommendation, since there was no evidence of any health disability, any special or unusual hardship or services of an exceptional value to Canada.

[19]            A review of the Citizenship Court Record does not reveal any evidence to suggest that this was a case of special and undue hardship or that the Applicant had provided services of an exceptional value to Canada. The Citizenship consequently did not err by failing to make a recommendation under subsection 5(4).

                                                  ORDER

THIS COURT ORDERS that:

This Application for Judicial Review is converted to an Appeal of the Decision of the Citizenship Judge dated December 15, 2000 pursuant to subsection 14(5) of the Citizenship Act.

This appeal is dismissed.

                                                                                                               "Judith A. Snider"    

                                                                                                                                 JUDGE           

CALGARY, Alberta

March 12, 2003

                                                    FEDERAL COURT OF CANADA

                                                                 TRIAL DIVISION

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                             T-409-01

STYLE OF CAUSE:                           Louis Placidus Fernandes v. MCI

PLACE OF HEARING:                     CALGARY, Alberta

DATE OF HEARING:                       March 12, 2003

REASONS FOR ORDER AND ORDER : SNIDER, J.

DATED:                                                March 12, 2003

APPEARANCES:

Mr. Louis Placidus Fernandes              FOR APPLICANT

Mr. Rick Garvin                                                                             FOR RESPONDENT

SOLICITORS OF RECORD:

Mr. Louis Placidus Fernandes              FOR APPLICANT

Calgary, Alberta

Morris A. Rosenberg

Deputy Attorney General of Canada     FOR RESPONDENT