Date: 20030602
Docket: T-370-02
Citation: 2003 FCT 692
Ottawa. Ontario, June 2, 2003
PRESENT: THE HONOURABLE MADAM JUSTICE JOHANNE GAUTHIER
BETWEEN:
NIDAL ZIAD HADDAD
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an appeal from a decision of the Citizenship Judge dated January 31, 2002, denying Nidal Ziad Haddad's application for citizenship.
[2] In his letter to the applicant, the Citizenship Judge stated that Ms. Haddad failed to provide satisfactory evidence that she had resided for at least three years in Canada during the four years immediately preceding the date of her application (paragraph 5(1)(c) of the Citizenship Act, R.S.C., 1985, c. C-29) (the Act). He also stated that the applicant's knowledge of Canada and of the responsibilities and privileges of citizenship was not adequate to qualify for citizenship (paragraph 5(1)(e) of the Act), because she correctly answered only 11 of the 19 questions put to her and did not correctly answer one of the mandatory questions.
Facts
[3] Nidal Ziad Haddad is a citizen of Lebanon. On October 18, 1994, she arrived in Canada and on November 26 of the same year, she obtained permanent residency status. She applied for Canadian citizenship on April 18, 2000. Therefore, the relevant period for calculating her residency is from April 18, 1996, to April 18, 2000 (paragraph 5 (1)(c) of the Act). Ms. Haddad said she had been absent from Canada for not more than 320 days during that period.
[4] On January 6, 2000, the Adjudication Division of the Immigration and Refugee Board determined that, despite her numerous absences from Canada, Ms. Haddad did not intend to abandon her permanent residency status (subsection 24(2) of the Act).
[5] On November 9, 2001, Ms. Haddad was interviewed by the Citizenship Judge, who refused her application on January 31, 2002.
Issues
[6] Ms. Haddad raised two issues in her written memorandum:
(1) Whether the Citizenship Judge erred in finding that she had not established residency in Canada during the period required by paragraph 5(1)(c) of the Act, despite having been confirmed as a permanent resident by the Adjudication Division of the Immigration and Refugee Board.
(2) Whether the Citizenship Judge mistook Ms. Haddad's file for the file of her mother, Carmella Khalil Henoud, when he found that she had not satisfied the criteria set out in section 5(1)(e) of the Act.
[7] At the hearing, Ms. Haddad raised two additional issues: in evaluating her residency in Canada during the requisite time period, (i) whether the judge imposed a higher burden of proof than the balance of probabilities and (ii) whether the judge was biased and considered all the evidence before him.
[8] Lastly, Ms. Haddad objected to the admission into evidence of the Citizenship Judge's reasons and notes, which were in the respondent's record, on the ground that those documents were not provided to her before February 26, 2002, barely ten days before the hearing.
Analysis
[9] In Canada (MCI) v. Wu, 2002 F.C.J. No. 519 (QL), after reviewing the case law on the applicable standard of review in citizenship decisions, Mr. Justice Teitelbaum concluded:
From this collection of jurisprudence, it would seem that the applicable standard of review is that of correctness where the appellate court, the Federal Court of Canada - Trial Division in the case at bar, must verify that the Citizenship Judge has correctly applied one of the accepted residency tests. However, with regard to the standard of review for the perception of the facts in a citizenship application by the Citizenship Judge, this Court ought not to substitute its opinion for that of the Citizenship Judge unless the Citizenship Judge was clearly wrong, or made his or her finding in a perverse or capricious manner.
[10] The Court adopts the reasoning of Teitelbaum J. and will apply that standard of review to this appeal.
[11] After reviewing the questionnaire in the Citizenship Judge's file, the Court notes that Ms. Haddad did not correctly answer 8 of the 19 questions put to her and did not correctly answer one of the mandatory questions. The Citizenship Judge therefore did not err in finding that she failed to meet the criteria set out in paragraph 5(1)(e) of the Act.
[12] Canadian citizenship is a privilege and not a right. With that in mind, Parliament provided that each and every condition set out in section 5 of the Act must be met before the privilege is granted, unless the requirements are waived on compassionate grounds, or because of special and unusual hardship, or to reward services of an exceptional value.
[13] In this case, Ms. Haddad did not submit any evidence that could warrant a recommendation by the Citizenship Judge for a waiver. Nor did she suggest that the Citizenship Judge erred on this point.
[14] In the circumstances, it is not necessary that the Court decide whether the Citizenship Judge erred in his assessment of the residency within the meaning of paragraph 5(1)(c) of the Act, or to deal with the other issues raised by Ms. Haddad.
[15] The appeal is dismissed.
ORDER
THE COURT ORDERS:
1. The appeal from the decision of the Citizenship Judge dated January 31, 2002, is dismissed.
"Johanne Gauthier"
Judge
Certified true translation
Mary Jo Egan, LLB
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
DOCKET: T-370-02
STYLE OF CAUSE: Nidal Ziad Haddad v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March12, 2003
REASONS FOR ORDER : The Honourable Madam Justice Johanne Gauthier
APPEARANCES:
Annie Kenane FOR THE APPLICANT
Diane Lemery FOR THE RESPONDENT
SOLICITORS OF RECORD:
Annie Kenane FOR THE APPLICANT
1640 - 630, René-Lévesque Blvd. West
Montréal, Quebec H2Z 1X4
Morris Rosenberg FOR THE RESPONDENT
Deputy Minister of Justice
Montréal, Quebec H2Z 1X4