Ottawa, Ontario, September 27, 2007
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1]
On
December 8, 2006, Mr. Haroon Ahmed Khan attended a hearing before a judge who
was reviewing Mr. Khan’s application for Canadian citizenship. Luckily for Mr.
Khan, he had arrived the night before from Pakistan, opened his
mail, and learned that his hearing was to take place the next day. He knew that
he had to bring with him documents showing that he met the minimum residency
requirement for Canadian citizenship. He cobbled together what he could on
short notice, such as his current and expired passports, some duplicate rent
cheques, his driver’s license, taxi license and business license, letters from
employers, tax returns, and his children’s report cards.
[2]
When
he presented these papers to the citizenship judge, she informed him that she needed
more in order to be satisfied that he fulfilled the residency requirement. Mr.
Khan agreed to supply further documentation and the required residency
questionnaire, but asked for three or four weeks’ time in which to do so. On
February 6, 2007, not having received any further documents or a residency
questionnaire from Mr. Khan, the judge rejected his application for
citizenship.
[3]
Mr.
Khan appeals that decision. He argues that the judge erred by not making a
decision based on the documents he had already presented. Mr. Khan submits that
the documents he gave the judge at the hearing were sufficient.
[4]
I
can find no error in the judge’s decision and must, therefore, dismiss Mr.
Khan’s appeal.
I. Issue
[5]
Did
the citizenship judge err by failing to base her decision on the documents Mr.
Khan submitted?
II. Analysis
[6]
To
obtain Canadian citizenship, an applicant must prove, among other things, that
he or she was resident in Canada for at least three out of the four years
preceding the date of the application (Citizenship Act, R.S. 1985, C-29,
s. 5(1) – relevant provisions are set out in an Annex). Mr. Khan applied for
citizenship in April 2005. He says that he was a resident of Canada from January
2002 until March 2005 and, therefore, satisfied the residency requirement. He
submits that the documents he gave the citizenship judge established his
residency, and that the judge should have either found in his favour or
explained why those documents were deficient.
[7]
As
I view the circumstances, the judge cannot be faulted for the manner in which
she proceeded or for her decision. At the hearing, as Mr. Khan concedes, the
judge explained why his passport was not adequate proof of residency in Canada for the
necessary duration. Equally, the other documents did not prove residency
throughout the relevant period. The judge asked for, and Mr. Khan undertook in
writing to provide, more complete records. The judge waited until a day before
the judge’s 60-day deadline for deciding the matter (s. 14(1)), before writing
to Mr. Khan expressing her conclusion.
[8] Mr. Khan also argues that the judge misunderstood his application. In her notes of the hearing, the judge appeared to have evaluated the extent of Mr. Khan’s attachment to Canada, which would have been necessary only if Mr. Khan had failed to prove his physical presence for the required duration. And, as already mentioned, Mr. Khan asserts that this had already been proved. As I interpret the judge’s notes, she may have been considering an alternative basis for granting Mr. Khan’s application, in the absence of adequate proof of actual residence, in keeping with the case of Re Koo, [1993] 1 F.C. 286 (T.D.) (QL). I would not infer from the judge’s notes that she failed to appreciate the basis of Mr. Khan’s application.
[9] As I view the judge’s conduct, she reasonably concluded that Mr. Khan’s evidence was deficient, accorded him ample time to supplement his application, waited until almost the last possible moment before rendering her decision, and then, ultimately, found that Mr. Khan had failed, based on the documents filed, to meet the statutory residency requirement. In these circumstances, I must dismiss Mr. Khan’s appeal.
JUDGMENT
1. The appeal is dismissed.
Annex “A”
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Citizenship Act, R.S. 1985, c-29
5. (1) The Minister shall grant citizenship to any person who (a) makes application for citizenship; (b) is eighteen years of age or over; (c) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, and has, within the four years immediately preceding the date of his or her 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; (d) has an adequate knowledge of one of the official languages of Canada; (e) has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship; and (f) is not under a removal order and is not the subject of a declaration by the Governor in Council made pursuant to section 20.
Consideration by citizenship judge 14. (1) An application for (a) a grant of citizenship under subsection 5(1), (b) a retention of citizenship under section 8, (c) a renunciation of citizenship under subsection 9(1), or (d) a resumption of citizenship under subsection 11(1) shall be considered by a citizenship judge who shall, within sixty days of the day the application was referred to the judge, determine whether or not the person who made the application meets the requirements of this Act and the regulations with respect to the application.
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Loi sur la citoyenneté, L.R.1985, ch. 29
5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois : a) en fait la demande; b) est âgée d’au moins dix-huit ans; c) est un résident permanent au sens du paragraphe 2(1) de la Loi sur l’immigration et la protection des réfugiés 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; d) a une connaissance suffisante de l’une des langues officielles du Canada; e) a une connaissance suffisante du Canada et des responsabilités et avantages conférés par la citoyenneté; f) n’est pas sous le coup d’une mesure de renvoi et n’est pas visée par une déclaration du gouverneur en conseil faite en application de l’article 20.
Examen par un juge de la citoyenneté 14. (1) Dans les soixante jours de sa saisine, le juge de la citoyenneté statue sur la conformité — avec les dispositions applicables en l’espèce de la présente loi et de ses règlements — des demandes déposées en vue de : a) l’attribution de la citoyenneté, au titre du paragraphe 5(1); b) la conservation de la citoyenneté, au titre de l’article 8; c) la répudiation de la citoyenneté, au titre du paragraphe 9(1); d) la réintégration dans la citoyenneté, au titre du paragraphe 11(1).
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FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-587-07
STYLE OF CAUSE: HAROON AHMED KHAN v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: September 18, 2007
APPEARANCES:
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Jeremiah A. Eastman
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Kristina Dragaitis |
SOLICITORS OF RECORD:
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CARTERS PROFESSIONAL CORPORATION Orangeville, On. |
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JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, ON
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