Federal Court Decisions

     Date: 19991021

     Docket: T-82-99

BETWEEN:

     BODJI DIMITRI,

     Plaintiff,

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Defendant.

     REASONS FOR ORDER AND ORDER

BLAIS J.

INTRODUCTION

[1]      This is an appeal from a decision by Jeanine C. Beaubien, a citizenship judge, dated December 16, 1998 in which the judge refused to grant the appellant citizenship on the ground that the latter did not meet the residence requirements of s. 5(1)(c) of the Citizenship Act.

FACTS

[2]      The appellant was born at Beirut, Lebanon on July 9, 1951. He entered Canada in 1988 but was not admitted as a permanent resident until January 15, 1992.

[3]      He filed his citizenship application on November 22, 1994. He admitted having left the country, but only for holidays totalling 30 days.

TRIBUNAL"S DECISION

     [TRANSLATION]

Under s. 5(1)(c) of the Citizenship Act a candidate for citizenship must have a total of at least three years" residence in Canada in the four years immediately preceding the date of his application.

At the interview I had doubts about your residence in Canada and asked you to provide me with additional documents. Unfortunately, you have not been able to provide satisfactory proof of your residence in Canada.

I considered whether I should recommend the exercise of the discretionary powers mentioned in s. 5(4) of the Act . . . Since you have submitted no evidence in this connection, I see no reason to make such a recommendation to the Minister.

Under s. 14(3) of the Act, therefore, I am hereby informing you that for the aforementioned reasons your application for citizenship has not been approved.

PLAINTIFF"S ARGUMENTS

[4]      The plaintiff alleged that the citizenship judge did not ask for additional evidence at the interview.

[5]      He maintained that he met the requirements of s. 5(1)(c) as he was paying rent, Hydro-Quebec and income taxes and was entitled to income security benefits.

DEFENDANT"S ARGUMENTS

[6]      The defendant noted that the plaintiff entered in evidence documents which were not submitted to the citizenship judge.

[7]      He argued that the courts have unanimously held that judicial review of a decision must be in light of the evidence submitted to the tribunal. He maintained that adding new evidence to the court record on which the tribunal did not rule is contrary to the letter and spirit of s. 18.1(4) of the Federal Court Act.

[8]      The defendant alleged that the plaintiff had not shown that he had centred his life in Canada. Since he filed his application on November 22, 1994, he had to submit evidence for 1990 to 1994. His evidence covered 1988, 1989 and 1996 to 1998.

ISSUE

[9]      Did the tribunal err in law in rejecting the appellant"s citizenship application?

ANALYSIS

[10]      In Canada (Minister of Citizenship and Immigration) v. Chan, [1998] F.C.J. No. 742, Rothstein J. explained the procedure for appeals brought under the Citizenship Act, according to the old and new Federal Court Rules:

The old Rules provided for an appeal by trial de novo in which the parties had a right to adduce evidence, while the new rules provide for an appeal by way of application on the basis of the Citizenship Court record.

[11]      As the appeal was brought under the new Rules the plaintiff is not entitled to submit new evidence. The documents located at pp. 10, 12, 23, 25, 26, 28, 29, 30, 31, 32, 33, 34, 35, 41, 42, 43 and 44 of the plaintiff"s record are accordingly dismissed.

[12]      Section 5(1)(c) provides as follows:

5(1) Le ministre attribue la citoyenneté à toute personne qui, à la fois: c)      a été légalement admise au Canada à titre de résident permanent, n"a pas depuis perdu ce titre en application de l"article 24 de la Loi sur l"immigration, et a, dans les quatre ans qui ont précédé la date de sa demande, résidé au Canada pendant au moins trois ans en tout, la durée de sa résidence étant calculée de la manière suivante : (i)      un demi-jour pour chaque jour de résidence au Canada avant son admission à titre de résident permanent, (ii)      un jour pour chaque jour de résidence au Canada après son admission à titre de résident permanent . . .

5(1) The Minister shall grant citizenship to any person who (c)      has been lawfully admitted to Canada for permanent residence, has not ceased since such admission to be a permanent resident pursuant to section 24 of the Immigration Act, and has, within the four years immediately preceding the date of his application, accumulated at least three years of residence in Canada calculated in the following manner: (i)      for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and (ii)      for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence . . .

[13]      The Act clearly indicates that the plaintiff must prove his residence for the years preceding his application for citizenship. As the application was filed in 1994 the plaintiff should have filed evidence for 1990 to 1994, not 1996 and subsequent years, as he did.

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[14]      The appeal is dismissed.

Pierre Blais Judge

OTTAWA, ONTARIO

October 21, 1999

Certified true translation

Bernard Olivier, LL. B.

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     FEDERAL COURT OF CANADA

     TRIAL DIVISION

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT No.:          T-82-99

STYLE OF CAUSE:      Bodji Dimitri v. The Minister of Citizenship and Immigration

PLACE OF HEARING:      Montréal

DATE OF HEARING:      October 13, 1999

REASONS FOR ORDER BY:      Lemieux J.

DATED:          October 21, 1999

APPEARANCES:

Bodji Dimitri          FOR THE PLAINTIFF

for himself

Édith Savard          FOR THE DEFENDANT

SOLICITORS OF RECORD:

Morris Rosenberg      FOR THE DEFENDANT

Deputy Attorney General of Canada

Montréal, Quebec