Khalilian (Re), docket T-2305-96

     T-2305-96

     IN THE MATTER OF THE CITIZENSHIP ACT

     R.S.C., 1985, c. C-29

     AND IN THE MATTER OF an appeal from the

     decision of a Citizenship Judge

     AND IN THE MATTER OF

     CYRUS KHALILIAN

     Appellant

     REASONS FOR JUDGMENT

     This is an appeal from the decision of a Citizenship Judge who denied this appellant Canadian citizenship on August 27, 1996. It was determined that Mr. Khalilian did not meet the residency requirement under paragraph 5(1)(c) of the Act which requires that an applicant for Canadian citizenship must have accumulated at least three years of residency in Canada within the four years immediately proceeding his or her application. The Citizenship Judge found that the appellant had only been physically present in Canada 537.5 days leaving him 557.5 days short of the required 1,095 days to meet the residency requirement.

     The Citizenship Judge determined that the appellant did not meet the requirements of paragraph 5(1)(c) of the Citizenship Act. In particular, the Judge determined that the appellant had been out of Canada since June of 1993, returned to Canada for three months for a medical procedure and then returned again to Iran. The Citizenship Judge also noted that the appellant had entered originally as a refugee from Iran but had been returning there regularly. Furthermore, she determined that the appellant wanted the Canadian citizenship only to permit him to study in the United States. Finally, pursuant subsection 15(1) of the Act, the Citizenship Judge did not find any grounds under subsections 5(3) and 5(4) of the Act to recommend an exercise of Ministerial discretion.

     Since appeals to the Federal Court under subsection 14(5) of the Citizenship Act are trial de novo, your Lordship is permitted to consider all of the evidence including the appellant's testimony and that of any other witness.

     In his notice of Appeal the appellant submits as follows:

     The appellant was born in Isfahan, Iran on July 3, 1964. He entered Canada on May 30, 1986, as a refugee. He was granted permanent resident status August 6, 1992. The appellant is in a common law relationship and has no children.

     This appellant appeared before me at Toronto on Monday, October 20, 1997. He testified that after his arrival in Canada in 1986, he worked for some three years in this country, accumulated sufficient funds to them return to University in Toronto for a period greater than three years. It is true that he did go back to Iran in 1993 for a year; his father was extremely ill, he was a widower and had no other relatives. He went back to Iran to take care of a father that was paralyzed and dying. Upon his father's death the appellant did return to this country. Before going to Iran, he had entered into a permanent relationship with a Canadian woman that persisted upon his return and with whom he is still living.

     There is no doubt in my mind that this particular appellant has established roots in this country and it is apparent that when he attended before the Citizenship Judge he alleges he was given a very short hearing. I tend to agree. What apparently was surely overlooked by the previous judge is that from the time he arrived until he was landed, some six and a half year elapsed, and under sub-paragraph 5(1)c)i) half of this time accumulated as a resident counts towards the requirement. There being no other obstacle or impediment towards his obtaining citizenship, I am satisfied that he did meet the residency requirement and this appeal should be allowed.

JUDGE

OTTAWA, Ontario

October 28, 1997