Federal Court Decisions

Date: 20060911

Docket: T-2197-05

Citation: 2006 FC 1081

Ottawa, Ontario, September 11, 2006

PRESENT:     The Honourable Mr. Justice Phelan

BETWEEN:

ZAHRA MOHAMMADGHASEMI

Applicant

and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1]               The Applicant has appealed a decision of a Citizenship Judge denying her citizenship application on the grounds that she did not “regularly, normally or customarily” live in Canada.

[2]               The Applicant has brought a motion to supplement the Applicant’s Record by adding an affidavit from an immigration consultant. That affidavit attaches as an exhibit a “Book of Documents” provided to the Respondent during the settlement of the Respondent’s appeal at the Immigration and Refugee Board in respect of her spouse.

[3]               The Applicant asks that this affidavit be admitted to respond to a FOSS note in the Certified Tribunal Record which suggests that an informant has advised Canadian authorities that the Applicant’s business in Iran was fraudulent.

[4]               In the Application before this Court the Applicant argues that there was a breach of procedural fairness in that the Applicant was not provided with an opportunity to reply to the extrinsic evidence of the FOSS note.

[5]               It is not the role of this Court in the appeal to retry the case before the Citizenship Judge. It is impossible to see the relevance of the FOSS note to the Citizenship Judge’s decision. If it was relevant and the Applicant was denied an opportunity to deal with the evidence, it is likely immaterial if the note is true or false.

[6]               The material fact of denial of the opportunity can be made out more simply than filing an affidavit of a third party which contains a host of documents. The immigration consultant’s affidavit does not even speak to the truth of the FOSS note allegation and its evidentiary value on the issue of the legitimacy of the Iranian business is highly questionable.

[7]               Therefore, the Applicant’s motion is dismissed with leave to file an amended Application Record with the affidavit and attachments removed and with a revised Memorandum of Argument as may be appropriate.

ORDER

IT IS ORDERED THAT the Applicant’s motion is dismissed with leave to file an amended Application Record with the affidavit and attachments removed and with a revised Memorandum of Argument as may be appropriate.

“Michael L. Phelan”

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          T-2197-05

STYLE OF CAUSE:                          ZAHRA MOHAMMADGHASEMI

                                                            and

                                                            THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE AND

DATE OF HEARING:                      Motion made in writing under Rule 369

REASONS FOR ORDER

AND ORDER:                                   Phelan J.

DATED:                                             September 11, 2006

APPEARANCES:

SOLICITORS OF RECORD: