Docket: T-1933-13
Citation:
2014 FC 973
Toronto, Ontario, October 14, 2014
PRESENT: The Honourable Mr. Justice Campbell
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BETWEEN:
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WILLIAM LEONARDO BOLIVAR
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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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ORDER AND REASONS
[1]
In the decision presently under review, dated
October 31, 2013, the Applicant’s application for citizenship was rejected by a
Citizenship Judge for the sole reason that he had failed to meet the residency test
applied to his application pursuant to s. 5(1)(c) of the Citizenship Act,
R.S. 1985, c. C-29 (Act).
[2]
In his application the Applicant gave personal
family reasons for failing to be physically present in Canada for 1095 days during the period required by the Act. The Applicant’s reasons
were not taken into consideration by the Citizenship Judge in rejecting the
Applicant’s application according to the most stringent test for residence as
follows:
In deciding whether you satisfy the residence
requirement under paragraph 5(1)(c) of the Act, I have chosen to adopt the
analytical approach used by the Honourable Mr. Justice Muldoon in Re
Pourghasemi. In Pourghasemi, [1993) F.C.J. No. 232 (T.D.), Muldoon
J. considered that it was necessary for a potential citizen to establish that
he or she has been physically present in Canada for 1,095 days during the
relevant four year period.
[3]
Counsel for the Applicant argues that, given the
Applicant’s evidence that compelling reasons existed for the Applicant’s absence
from Canada, the Citizenship Judge erred by failing to consider the more
flexible approach to the residence requirement as stated in Re Koo,
[1992] F.C.J. No. 1107 (T.D.).
[4]
While it is well established that it was open to
the Citizenship Judge to choose which test to apply to the Applicant’s
application, I find that the decision under review does not conform with the
standard set out in Seiffert v Canada (Minister of Citizenship and
Immigration), 2005 FC 1072 at paragraphs 16 - 17:
As each case turns on its own merits, I find
that no precedent will help me decide whether a denial of justice occurred in
the present case. The question to be answered is whether the Applicant, both
for himself and the members of his family, had a reasonable opportunity during
the interview to persuade the Citizenship Judge that the complex and extensive
evidence before him warranted a positive citizenship decision. I have no
hesitation in saying that the Applicant was not provided with this opportunity.
It is very clear from the decision rendered,
that the written material did not impress the Citizenship Judge sufficiently to
give a positive determination. In such circumstances, it was critically
important for the Citizenship Judge to give the Applicant a solid chance to use
his powers of persuasion to change his mind. I agree with Counsel for the
Applicant that the Citizenship Judge closed the door to this opportunity.
Therefore, on the facts of the present case, I find that the failure to accord
this meaningful opportunity to be heard is a denial of natural justice.
[5]
Thus, in the present case, because the Citizenship
Judge applied the test in Pourghasemi rather than that in Koo, without
first considering all the evidence presented by the Applicant, and without
providing the Applicant with an opportunity to persuade the Citizenship Judge
to apply Koo rather than Pourghasemi, I find that the decision
rendered was in breach of the duty of fairness owed to the Applicant.
[6]
As a result, I find the decision under review is
made in reviewable error.
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