Date: 20090424
Docket: T-625-08
Citation: 2009 FC 411
Ottawa, Ontario, April 24,
2009
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
MOHAMMAD
REZA GHAHREMANI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an appeal by the Applicant, Mohammad Reza Ghahremani, pursuant to subsection
14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 (the Act),
challenging the decision of Citizenship Judge John K.S. Koulouras (the Judge), dated
March 7, 2008, denying the Applicant’s application for citizenship. The
Applicant is self-represented.
Factual Background
[2]
The
Applicant is a citizen of Iran who became a landed immigrant of Canada on March 14,
2000. He applied for Canadian citizenship on May 14, 2006.
[3]
The
Applicant lived in Canada from March 14, 2000 until March 11, 2002, when he
left Canada due to
extreme depression. He returned to his home country where he was treated by a
psychologist for his depression and later by a cardiologist for heart problems.
[4]
The
Applicant’s depression was improving under the treatment of the psychologist,
but the Applicant then became concerned with his wife and children after
hearing that his wife had apparently filed for divorce and had married his
friend. The Applicant suffered a heart attack and then underwent coronary
bypass surgery. Because of this new physical condition, the Applicant’s
depression intensified.
[5]
During
the seven months following his heart surgery, the Applicant worried about his
daughter because he did not receive any news from her. He decided to apply to
return to Canada and his
request was approved. He returned to Canada on December 21, 2005 to
learn that his eldest daughter had become paralyzed following a car accident.
[6]
The
Applicant has lived in Canada since his return here.
Impugned Decision
[7]
Applying
the physical presence test for residence, the Citizenship Judge found that the
Applicant did not meet the residence requirement under the Act.
[8]
In
the Applicant’s case, the relevant four year period to establish residence is
from May 14, 2002 until May 14, 2006, for a total of 1,460 days. The Applicant
declared 1,303 days of absences from Canada, leaving a physical
presence of only 157 days.
[9]
At
the hearing before the Citizenship Judge, the Applicant provided a list of the
requested information to validate his statements of residence in Canada and the
Citizenship Judge reminded the Applicant that the onus rests upon him to
satisfy the requirements of the Act (Maharatnam v. Canada (Minister of
Citizenship and Immigration) (2000), 96 A.C.W.S. (3d) 198, [2000] F.C.J.
No. 405 (F.C.T.D.) (QL)).
[10]
The
Citizenship Judge noted that there is jurisprudence to the effect that the
physical presence of a citizenship Applicant for the entire 1,095 days is not
required when there are special or exceptional circumstances. However, in the
Judge’s view, too long an absence from Canada, albeit
temporary, during the minimum period of time set out in the Act, as in the
present case, is contrary to the purpose of residency requirements of the Act.
Indeed, the Act already allows a person who has been lawfully admitted to Canada for
permanent residence not to reside in Canada during one of the four
years preceding the date of that person’s application for citizenship.
[11]
Based
on the evidence and upon careful review of all the documents submitted in
support of his application, the Citizenship Judge found that the Applicant did not
meet the requirement under subsection 5(1)(c) of the Act.
[12]
The
Judge determined that the Applicant was absent from Canada 1,303 days within
the relevant four year period and he had spent more time outside of Canada than
in. The Applicant was short 938 days from the 1,460 days as required under the
Act and the documents he provided did not prove his physical presence in Canada.
[13]
Before
deciding to dismiss his application, the Judge considered, in accordance with
subsection 15(1) of the Act, whether to make a favourable recommendation under
subsections 5(3) and (4). The Applicant did not file any material in support of
the Judge making a favourable recommendation for the use of discretion. After
having carefully considered all the circumstances of the Applicant’s case, the
Citizenship Judge decided that his case did not warrant making a favourable recommendation.
Issue
[14]
This
application raises the following question: Is the Citizenship Judge’s decision
unreasonable?
[15]
The
present appeal shall be dismissed for the following reasons.
Relevant Legislation
[16]
Section
21 of the Federal Courts Act, R.S.C., 1985, c. F-7 and subsection 15(4)
of the Citizenship Act set out the Applicant’s right of appeal of the
decision of the Citizenship Judge:
|
21. The Federal Court has exclusive
jurisdiction to hear and determine all appeals that may be brought under
subsection 14(5) of the Citizenship Act.
|
21. La Cour fédérale a
compétence exclusive en matière d'appels interjetés au titre du paragraphe
14(5) de la Loi sur la citoyenneté.
|
|
14. (5) The Minister or the applicant may
appeal to the Court from the decision of the citizenship judge under
subsection (2) by filing a notice of appeal in the Registry of the Court
within sixty days after the day on which
(a) the
citizenship judge approved the application under subsection (2); or
(b) notice was
mailed or otherwise given under subsection (3) with respect to the
application.
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14. (5) Le ministre et le
demandeur peuvent interjeter appel de la décision du juge de la citoyenneté
en déposant un avis d’appel au greffe de la Cour dans les soixante jours
suivant la date, selon le cas :
a)
de l’approbation de la demande;
b)
de la communication, par courrier ou tout autre moyen, de la décision de
rejet.
|
[17]
The
residency requirements are set out in subsection 5(1)(c) of the Citizenship
Act:
|
5. (1) The Minister shall grant citizenship
to any person who
(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;
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5.
(1) Le ministre attribue la citoyenneté à
toute personne qui, à la fois :
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;
|
[18]
The
special or extraordinary circumstances which can be considered at the
discretion of the Citizenship Judge are enumerated in subsections 5(3) and 5(4)
of the Citizenship Act:
|
5. (3) The Minister may, in his
discretion, waive on compassionate grounds,
(a) in the
case of any person, the requirements of paragraph (1)(d) or (e);
(b) in the
case of a minor, the requirement respecting age set out in paragraph (1)(b),
the requirement respecting length of residence in Canada set out in paragraph
(1)(c) or the requirement to take the oath of citizenship; and
(c) in the
case of any person who is prevented from understanding the significance of
taking the oath of citizenship by reason of a mental disability, the requirement
to take the oath.
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5. (3) Pour des raisons
d’ordre humanitaire, le ministre a le pouvoir discrétionnaire d’exempter :
a)
dans tous les cas, des conditions prévues aux alinéas (1)d) ou e);
b)
dans le cas d’un mineur, des conditions relatives soit à l’âge ou à la durée
de résidence au Canada respectivement énoncées aux alinéas (1)b) et c), soit
à la prestation du serment de citoyenneté;
c)
dans le cas d’une personne incapable de saisir la portée du serment de
citoyenneté en raison d’une déficience mentale, de l’exigence de prêter ce
serment.
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5. (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.
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5. (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.
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Analysis
Standard of Review
[19]
Whether
the Applicant established that he was physically present in Canada for 1,095
days is a question of fact. The Judge’s finding on this point is reviewable
on the newly articulated standard of reasonableness (Dunsmuir v. New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Chen v. Canada (Minister of
Citizenship and Immigration), 2008 FC 763, [2008] F.C.J. No. 964 (QL)).
Is the Citizenship
Judge’s decision reasonable?
[20]
The
Applicant states that he returned to Iran due to his health
problems and depression. He thought of committing suicide twice but abandoned
the idea when he thought of his children and never gave up hope during the
difficult times.
[21]
He
explains that he obtained a Professional Engineer (P.Eng.) license from the
Council of Professional Engineers Ontario (PEO) on April 15, 2008. He also passed
the National Board Commission Examination to become a Boiler and Pressure
Vessel inspector on December 12, 2008. The Applicant wants to pursue his
studies in Mechanical Engineering and he plans on obtaining a Master’s degree
in Mechanical Engineering from Ryerson University.
[22]
On
December 2, 2008, the Applicant was also approved for the Ontario Support Disability
Program (OSDP) due to his heart problems and depression. The Applicant notes
that his depression is improving, particularly because he obtained his P.Eng.
license and passed the National Board Commission Examination.
[23]
When
the Applicant applied for Canadian citizenship, he assumed that the two years
he lived in Canada from March 2000 until March 2002 and the fact that he
had lived in Canada since December 2005 would be sufficient for him
to be eligible to become a Canadian citizen.
[24]
The
Applicant is very committed to contributing to Canadian society and he notes
that by granting him citizenship, he will be better able to help take care of
his two daughters.
[25]
The
Respondent explains that the Court has effectively established two types of
tests for residence: one quantitative and the other qualitative. The first
requires an Applicant to be physically present in Canada for a total of three
years, calculated on the basis of a strict counting of days, as set out in Pourghasemi
(Re) (1993), 62 F.T.R. 122, 39 A.C.W.S. (3d) 251 (F.C.T.D.). The second
type adopts a more contextual and flexible reading of residence, requiring the
Applicant to have a strong connection to Canada and to centralize his or her
mode of living in Canada, as in In re Citizenship Act and in re
Antonio E. Papadogiorgakis, [1978] 2 F.C. 208 (T.D.) or Koo (Re), [1993]
1 F.C. 286 (T.D.) (see also Lam v. Canada (Minister of Citizenship and
Immigration) (1999), 164 F.T.R. 177, 87 A.C.W.S. (3d) 432).
[26]
It
is the prerogative of the Citizenship Judge to adopt the approach he sees
appropriate in determining whether the Applicant has satisfied the residency
requirements of the Act (Rizvi v. Canada, 2005 FC 1641 at par. 12, 144
A.C.W.S. (3d) 608; see also Wang v. Canada (Minister of Citizenship and Immigration),
2008 FC 390 at par. 18, 166 A.C.W.S. (3d) 220).
[27]
The Respondent
submits that the Citizenship Judge showed in his reasons that he was aware this
Court’s jurisprudence does not necessarily require physical presence.
Nevertheless, he chose to apply the physical presence test set out in Pourghasemi
(Re), above. That decision was open to him.
[28]
This Court has
recognized, as did the Citizenship Judge, that the jurisprudence has created a
strong inference that presence in Canada during three years out of the four
year period must be substantial (Rizvi, above at par. 12; Canada (Minister of
Citizenship and Immigration)
v. Lu, 2001 FCT 640 at
par. 7, 106 A.C.W.S. (3d) 786; Zhang v. Canada (Minister of
Citizenship and Immigration) (2000), 197 F.T.R. 225 at par. 9, 101
A.C.W.S. (3d) 691).
[29]
The Citizenship
Judge’s decision that the Applicant was physically present in Canada for only 157 days during the relevant four-year period is
supported by the evidence. This decision was reasonable and the Court’s
intervention is not warranted.
[30]
Furthermore,
the Applicant asks this Court to consider information about his residence that
post-dated his application for citizenship. However, the only relevant
timeframe for the purpose of this appeal is the four-year period starting on
May 14, 2002 and ending on May 14, 2006.
[31]
Finally, the
Applicant asks this Court to grant him Canadian citizenship. However, this
Court does not have jurisdiction to make such an order (Zhang, above at
par. 11-14).
[32]
In
Lam, above, Justice Lutfy, as he then was, wrote at paragraph 14:
… In my opinion, it is open to the
citizenship judge to adopt either one of the conflicting schools in this Court
and, if the facts of the case were properly applied to the principles of the
chosen approach, the decision of the citizenship judge would not be wrong. …
[33]
In
the case at bar, the Judge decided to employ the physical presence test. The
Court finds that based on the facts of this case, the decision is defensible in
fact and law and is therefore reasonable.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the appeal be
dismissed.
“Michel
Beaudry”
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