Docket:
T-763-13
Citation: 2013 FC 970
Ottawa, Ontario, September
23, 2013
PRESENT: The Honourable Mr. Justice Phelan
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BETWEEN:
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EMMANUEL OLUWAGBENGA SALAKO
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This is an appeal from the decision of a
Citizenship Judge refusing the Appellant’s application for citizenship. The
grounds for the decision were the Appellant’s failure to meet the residency
requirements of paragraph 5(1)(c) of the Citizenship Act, RSC
1985, c C-29 [Act], and the absence of sufficient evidence of hardship or of
exceptional service to justify a favourable recommendation for citizenship
under subsection 5(4) of that Act and pursuant to the Citizenship Judge’s
jurisdiction under section 15 of the Act.
II. BACKGROUND
[2]
The Appellant is a citizen of Nigeria and became a permanent resident on September 19, 2005. He is married to a Canadian and their
two children are also Canadians.
[3]
The relevant period of Canadian residency was
September 19, 2005 to October 15, 2008. The Appellant, in his citizenship
application, admitted that he did not meet the statutory requirement of 1,095
days in Canada during the relevant period because he was out of the country for
154 days.
[4]
The Appellant explained his absences as due to
his work. He is an exporter of used cars from Canada to Nigeria and is required to travel there for his job. He relies on this fact as “hardship”
under subsection 5(4) because he will not be able to qualify for citizenship as
long as he is so employed.
[5]
The Citizenship Judge rejected the citizenship
application on the basis that the Appellant failed the “quantitative test”
which uses days of physical presence in Canada to calculate residency.
[6]
In so doing the Citizenship Judge noted
discrepancies in the Appellant’s declared absences which reduced the number of
days of physical presence in Canada further below the 1,095 day threshold.
[7]
The Citizenship Judge applied the strict
quantitative test of Re Pourghasemi (1993), 62 FTR 122, 39 ACWS (3d)
251, such that even leaving aside the question of undeclared absences, the
Appellant failed to meet the residency requirements. The Citizenship Judge also
noted a number of undeclared absences and found that in light of numerous
inconsistencies, the Appellant had not met the burden of establishing the
number of days of residence.
[8]
The Citizenship Judge found that there was no
evidence which would justify a recommendation for the exercise of discretion on
the basis of hardship or services of exceptional value to Canada. Specifically, the Judge wrote “since you were unable to provide me with any such evidence [a
reference to subsection 5(4) criteria], I see no reason to make a recommendation
to the Minister”.
[9]
The Appellant raises three points of contention:
a)
The Citizenship Judge violated a principle of
procedural fairness by making errors of fact;
b)
The Citizenship Judge ignored evidence in
respect of subsection 5(4); and
c)
The Citizenship Judge’s decision is
unreasonable.
III. ANALYSIS
[10]
With respect to errors of fact, there is no
doubt that there were some errors with respect to undeclared absences. However,
the errors are immaterial to the decision. The Citizenship Judge decided to
base his decision on whether the Appellant met the 1,095 days of physical
presence threshold. Among the tests available to a citizenship judge (a
regrettable legal circumstance), the Citizenship Judge was entitled to pick the
strict quantitative test, which he did.
[11]
By his own admission, the Appellant did not meet
the residency criteria selected by the Citizenship Judge (number of days
physically spent in Canada). Any errors are irrelevant to that admission. There
was no procedural unfairness. There was nothing capricious in the errors and
they do not show a lack of care and attention.
[12]
Similarly, the Citizenship Judge did not ignore
or disregard evidence of hardship or exceptional service in respect of the
exercise of discretion under subsection 5(4). The Appellant makes too much of
the reference in the reasons to the Appellant not providing any evidence
in this regard. Read in context the Citizenship Judge is not saying that there
was no evidence at all on this point, merely that there was not
sufficient evidence.
[13]
As to the reasonableness of the decision on
residency, there is no issue. The Appellant admits to the deficiency.
[14]
As to the reasonableness of the decision on subsection
5(4), that provision provides the Citizenship Judge with wide discretion to
recommend an applicant for citizenship on the basis of either hardship or
exceptional service. The only hardship pleaded is that caused by the
Appellant’s choice of employment. That is not the type of hardship to which the
provision is directed; nor is the provision directed to the fact that some
members of the Appellant’s family have Canadian citizenship and one or more do
not.
IV. CONCLUSION
[15]
Therefore, I can find no basis on which this
Court can overturn the decision. The appeal will be dismissed.
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