Federal Court Decisions

Decision Information

Decision Content

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

                                                   

 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.