Date: 20020117
Docket: T-1778-00
Neutral citation: 2002 FCT 54
BETWEEN:
GHAZANFAR M. ALI
Applicant
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER
(Delivered from the Bench at Toronto, Ontario
on January 14, 2002, as edited)
McKEOWN J.:
[1] The applicant seeks judicial review of a decision of the Citizenship Judge dated July 18, 2000, wherein the Citizenship Judge did not approve the applicant's application for a grant of citizenship under subsection 5(1) of the Citizenship Act.
[2] The issues are:
1. Did the Citizenship Judge err in determining that the applicant failed to comply with the residency requirements of paragraph 5(1)(c) of the Citizenship Act?
2. Did the Citizenship Judge breach the principles of fairness in relying on evidence that was not disclosed to the applicant?
[3] I set out the standard of review in these cases in Zhang v. Canada (MCI) [2001] F.C.J. No. 778. In this case before me the Citizenship Judge said at page 2 of his reasons:
Based on my understanding of the recent jurisprudence from the Federal Court, interpreting the residency requirement under paragraph 5(1)(c) of the Act, as well [as] Parliament's intention which can be gleaned from a plain reading of paragraph 5(1)(c), the most significant factor in considering the residency requirement is whether the applicant can be said to have established his or her residence in Canada by having lived in Canada and been physically present here. As Lemieux J. stated in the case of M.C.I. v Heny Jreige (T-2012-98, 19990924): "An examination of the questions developed by Reed J. in Re Koo, supra, amply show that the learned judge's focus was indeed on the physical presence of a citizenship applicant in Canada."
[4] In my view the Citizenship Judge took into account all the relevant factors and cited the correct case law. Physical presence, while not conclusive, is an important factor. There was evidence on both sides before the Citizenship Judge with respect to most of the factors considered in Re Koo as summarized by Lemieux J. in Agha v. Canada (MCI) T-2711-97 F.C.J. No. 577 at paragraph 37, April 28, 1999. The Citizenship Judge is entitled to weigh the factors since it is the Citizenship Judge's discretionary decision. It is more difficult for the applicant to show a reviewable error where discretion is involved and there is some evidence to support the Citizenship Judge's decision. This is not a case where the applicant had centralized his mode of living in Canada before leaving Canada for extended absences.
[5] The second issue is whether the Citizenship Judge breached the principles of fairness in relying on evidence not disclosed to the applicant. There was a note to file by some unknown person relating to profiling the pattern of movement of people from the Middle Eastern Countries. There is no mention of profiling in the decision. There is the normal mention of visiting and leaving countries outside Canada. The application was refused due to the extended absences and lack of substantial connection to Canada. Furthermore, the decision shows that the Citizenship Judge was aware sponsorship was required to live and work in Saudi Arabia, suggesting the Citizenship Judge considered the applicant's explanation for his residence permit for Saudi Arabia. There was no breach of fairness nor natural justice in these circumstances.
[6] The application for judicial review is dismissed.
"W.P. McKeown"
J.F.C.C.
Toronto, Ontario
January 17, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-1778-00
STYLE OF CAUSE: GHAZANFAR M. ALI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: MONDAY, JANUARY 14, 2002
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: McKEOWN J.
DATED: THURSDAY, JANUARY 17, 2002
APPEARANCES BY: Mr. M. Max Chaudhary
For the Applicant
Mr. David Tyndale
For the Respondent
SOLICITORS OF RECORD: Chaudhary Law Office
Barristers and Solicitors
18 Wynford Drive
Suite 707
North York, Ontario
M3C 3S2
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020117
Docket: T-1778-00
BETWEEN:
GHAZANFAR M. ALI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
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