Federal Court Decisions

Date: 20010220

Docket: T-629-00

Neutral Citation: 2001 FCT 102

BETWEEN:

     HANAN AFIF ZOOROB

     Applicant

- and -

    

     THE MINISTER OF CITIZENSHIP

     & IMMIGRATION

     Respondent

     Docket: T-630-00

BETWEEN:

     SAMI MORGAN MICHAIIL

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP

     & IMMIGRATION

     Respondent

     REASONS FOR ORDER AND ORDERS

CAMPBELL, J.

[1]          The question in these appeals¹is whether, in the decisions of February 3, 2000, the Citizenship Judge erred in denying the Applicants'applications for Canadian citizenship pursuant to s.5(1) of the Citizenship Act (the "Act").²In my opinion,³the answer to this question lies in whether the test cited by Thurlow, J. in Re Papadogiorgakis [1978] 2 F.C. 208 at 214 was applied as follows:

A person with an established home of his own in which he lives does not cease to be resident there when he leaves it for a temporary purpose whether on business or vacation or even to pursue a course of study. The fact of his family remaining there while he is away may lend support for the conclusion that he has not ceased to reside there. The conclusion may be reached, as well, even though the absence may be more or less lengthy. It is also enhanced if he returns there frequently when the opportunity to do so arises. It is, as Rand J. appears to me to be saying in the passage I have read, "chiefly a matter of the degree to which a person in mind and fact settles into or maintains or centralizes his ordinary mode of living with its accessories in social relations, interests and conveniences at or in the place in question.

[2]          In these well argued appeals, it is agreed that the Citizenship Judge was alive to the test in Re Papadogiorgakis, and as a result of applying the test, arrived at the decision to deny citizenship to both Applicants.

[3]          The argument on behalf of both Applicants relates to the fact base upon which the decisions are made. Indeed, the circumstances involving both Applicants are unique.

[4]          The Applicants applied for Landed Immigrant Status in 1995, and in the four years immediately preceding the date of their applications for citizenship, spent only 106 days in Canada. The focus of the Citizenship Judge's decisions is on this fact, and, thus, the finding was made that neither Applicant had established or maintained a residence in Canada.

[5]          Apart from one brief reference in the decision respecting Mrs. Zoorob, the history of both Applicants' long and extensive involvement with Canada was not mentioned, and, apparently, not considered.

[6]          As part of the detailed record supplied in support of their applications for citizenship, the following summary of the history is provided:

In 1985, Sami and Hanan came to Canada and began studying at the Briercrest Biblical College in Moose Jaw, Saskatchewan. A year after they arrived in Canada, Sami and Hanan gave birth their first child, Madonna Morgan Michaiil. In December 1987, Sami graduated with a Bachelor's degree in Theology. During their studies, Sami and Hanan were actively involved in the community. They volunteered their time to assist with the elderly. Within their Christian church community, Sami and Hanan established firm friendships with Canadians from Quebec, Saskatchewan, Ontario and Alberta.

In 1987, Sami was employed by the Canadian company, Woods Parker Ltd., a consulting company located in Calgary, AB. Initially, he was hired as a researcher and then, in November 1988, Sami was appointed the Regional Marketing Director. This position took Sami abroad for periods at a time.

Sami and his family made regular visits back to Canada, and, on several occasions, Woods Parker required that Sami return to Calgary to do business. For these periods of stay, Sami and his family resided with the President of the company, Mr. Rodger Woods and his family. During their stays in Calgary, Sami and Hanan attended the Mount Royal Christian Community Church.

In October of 1990, Sami and his family were forced to leave Abu Dhabi unexpectedly due to the Gulf Crisis. They fled to their relatives in Toledo, Ohio, where they gave birth to their third child, Grace Morgan Michaiil. Grace is a U.S. citizen.

In March and July 1994, Woods Parker again required that Sami and his family return back to the Calgary headquarters for planning and debriefing. Later on in 1994, Sami started his own business with his brother, Morgan Morgan, who lives in Toronto. Sami owns minority shares in this company. At that time Sami and Hanan purchased a home in Markham, Ontario. During work assignments outside of Canada they rented their residence and stored personal belongings with family and friends in Canada.

On December 26, 1995, Sami, Hanan and Grace received their landed documents for Canada. Sami, Hanan and Grace later applied for Returning Resident Permits (RRP) and were granted the permits for the period from February 1996 to February 1998. In June of 1998, Sami and the family again returned to Calgary for business. Since that time, Sami and his family have remained in Canada.

Family Ties

Both Sami and Hanan have many relatives living in Canada who are permanent residents and Canadian citizens. First and foremost, two of Sami and Hanan's children are Canadian citizens. In addition, Sami's brother, Morgan Morgan, with whom he went into business, is a Canadian citizen residing in Toronto. Sami has three first cousins living in Canada and a number of nieces and nephews.

Community/Social Ties

Since their attendance at the Briercrest Bible College in Moose Jaw, Saskatchewan, Sami and Hanan have made many friends through their volunteer work and through the church. While in the Toronto are, the family attended an Evangelical Church and while in Calgary they were members of the Mount Royal Christian Community Church. Many years they have made charitable donations to a Canadian Bible College. In Alberta, the children regularly attend Youth camps.

Among Sami and Hanan's Canadian social contacts are Stuart McDowall, the Canadian Ambassador in Abu Dhabi (see attached letter), and his wife Ireni; Dentists Adeeb and Mary Shamas, Rodger and Carol Woods (employer), Daniel Frederick (personal friend), Norman Salt (teacher from Higer Colleges), and various teachers from Abu Dhabi International in Nova Scotia.

In terms of social events, Sami and Hanan have always participated actively in Canadian life. One such event which they attended was a reception called "Flying the Canadian Flag" and was organized by the Embassy. Abroad, Sami and the family volunteer for Canadian celebrations and have memberships in Canadian clubs and organizations. In Abu Dhabi, Sami and Hanan's children attend British and North American schools and as such are fluent in English and have Canadian friends.

Financial Ties

Sami and Hanan own and maintain their residence in Markham, Ontario. During absences from Canada. Sami has paid Canadian income taxes on the rental revenue he has received from it.

Sami and Hanan have maintained several bank accounts and investments in Canada over the years. Since September 1985, they have had an active bank account at the Toronto-Dominion Bank. At RBC Dominion, Sami and Hanan also have Canadian investments.⁴

[7]          The Applicants argue that, with respect to time spent in Canada after landing and whether residence has been established or maintained, it is necessary to take all evidence into consideration, including the extensive history disclosing a strong physical and emotional bond to Canada. I agree with this argument.

[8]          In addition, I find that the consideration of the full contextual background of

the Applicants' connection with Canada is important with respect to the argument that the Citizenship Judge made an error in meeting the requirements of s. 15 (1) of the Act which requires a Citizenship Judge to consider whether there are compassionate, special, or unusual hardship reasons for recommending that Executive discretion should be exercised to grant a citizenship application. With respect to this obligation, in each negative decision rendered, the Citizenship Judge said as follows:

You did not file any material in support of my making a favourable recommendation for the use of discretion⁵

[9]          I agree with the Applicants' argument that, at best, the Citizenship Judge's

statement is ambiguous, and at worst, discloses that the unique circumstances of each case were not considered in discharging the duty imposed by s. 15 (1) of the Act. Either way, I find that the lack of clarity in the statement creates a doubt which should be resolved in favour of the Applicants.

[10]          Given the fact that the Citizenship Judge appears not to have considered the

pre-landing evidence as relevant in reaching the decisions rendered, and given the ambiguity of the reasons given in reaching a finding under s. 15 (1) of the Act, I am satisfied that the Citizenship Judge's decisions were made in reviewable error.

     ORDER

On Application T-629-00;

     For the reasons provided, I grant the appeal. I make no order as to costs.

     "Douglas R. Campbell"

     JUDGE

     ORDER

On Application T-630-00;

     For the reasons provided, I grant the appeal. I make no order as to costs.

     "Douglas R. Campbell"

     JUDGE

Appendix

Citizenship Act, R.S.C. Ch C-29. The Right to Citizenship Section 5      Grant of citizenship (1) The Minister shall grant citizenship to any person who      (a) makes application for citizenship;      (b) is eighteen years of age or over;      (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;      (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 deportation order and is not the subject of a declaration by the Governor in Council made pursuant to section 20. (1.1) Residence (1.1) Any day during which an applicant for citizenship resided with the applicant's spouse who at the time was a Canadian citizen and was employed outside of Canada in or with the Canadian armed forces or the public service of Canada or of a province, otherwise than as a locally engaged person, shall be treated as equivalent to one day of residence in Canada for the purposes of paragraph (1)(c) and subsection 11(1). ... (3) Waiver by Minister on compassionate grounds

(3)      The Minister may, in his discretion, waive on compassionate grounds,      (a) in the case of any person, the requirements of paragraph (1)(d) or (e);      (b) in the case of a minor, the requirement respecting age set out in paragraph (1)(b), the requirement respecting length of residence in Canada set out in paragraph (1)(c) or the requirement to take the oath of citizenship; and      (c) in the case of any person who is prevented from understanding the significance of taking the oath of citizenship by reason of a mental disability, the requirement to take the oath. (4) Special cases (4) In order to alleviate cases of special and unusual hardship or to reward services of an exceptional value to Canada, and notwithstanding any other provision of this Act, the Governor in Council may, in his discretion, direct the Minister to grant citizenship to any person and, where such a direction is made, the Minister shall forthwith grant citizenship to the person named in the direction. ... Section 15 Recommendation re use of discretion (1) Where a citizenship judge is unable to approve an application under subsection 14(2), the judge shall, before deciding not to approve it, consider whether or not to recommend an exercise of discretion under subsection 5(3) or (4) or subsection 9(2) as the circumstances may require.

Loi sur la citoyenneté Le droit à la citoyenneté Alinéa 5 Attribution de la citoyenneté (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) 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;      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 d'expulsion et n'est pas visée par une déclaration du gouverneur en conseil faite en application de l'article 20. (1.1) Période de résidence (1.1) Est assimilé à un jour de résidence au Canada pour l'application de l'alinéa (1)c) et du paragraphe 11(1) tout jour pendant lequel l'auteur d'une demande de citoyenneté a résidé avec son conjoint alors que celui-ci était citoyen et était, sans avoir été engagé sur place, au service, à l'étranger, des forces armées canadiennes ou de l'administration publique fédérale ou de celle d'une province. ... (3) Dispenses

(3) Pour des raisons d'ordre humanitaire, le ministre a le pouvoir discrétionnaire d'exempter_:      a) dans tous les cas, des conditions prévues aux alinéas (1)d) ou e);      b) dans le cas d'un mineur, des conditions relatives soit à l'âge ou à la durée de résidence au Canada respectivement énoncées aux alinéas (1)b) et c), soit à la prestation du serment de citoyenneté;      c) dans le cas d'une personne incapable de saisir la portée du serment de citoyenneté en raison d'une déficience mentale, de l'exigence de prêter ce serment. (4) Cas particuliers (4) Afin de remédier à une situation particulière et inhabituelle de détresse ou de récompenser des services exceptionnels rendus au Canada, le gouverneur en conseil a le pouvoir discrétionnaire, malgré les autres dispositions de la présente loi, d'ordonner au ministre d'attribuer la citoyenneté à toute personne qu'il désigne; le ministre procède alors sans délai à l'attribution. ...

Alinéa 15 Exercice du pouvoir discrétionnaire (1) Avant de rendre une décision de rejet, le juge de la citoyenneté examine s'il y a lieu de recommander l'exercice du pouvoir discrétionnaire prévu aux paragraphes 5(3) ou (4) ou 9(2), selon le cas.

    

     FEDERAL COURT OF CANADA

     TRIAL DIVISION

Date: 20010220

Docket: T-629-00

BETWEEN:

     HANAN AFIF ZOOROB

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP

     & IMMIGRATION

     Respondent

     Docket: T-630-00

BETWEEN:

     SAMI MORGAN MICHAILL

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP

     & IMMIGRATION

     Respondent

    

    

     REASONS FOR ORDER AND ORDERS

    

     FEDERAL COURT OF CANADA

     TRIAL DIVISION

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET NOS.:      T-629-00; T-630-00

STYLE OF CAUSES:      HANAN AFIF ZOOROB v. MCI

     SAMI MORGAN MICHAILL v. MCI     

PLACE OF HEARING:      CALGARY, Alberta

DATE OF HEARING:      February 19, 2001

REASONS FOR ORDER AND ORDERS OF CAMPBELL, J.

DATED:      February 20, 2001

APPEARANCES:

Mr. Charles Darwent          FOR APPLICANTS

Mr. Brad Hardstaff          FOR RESPONDENTS

SOLICITORS OF RECORD:

Darwent Law Office

Calgary, Alberta          FOR APPLICANTS

Morris A. Rosenberg          FOR RESPONDENTS

Deputy Attorney General

of Canada

Ottawa, Ontario

__________________

¹      Mr. Sami Morgan Michaiil is the husband of Hanan Afif Zoorob. Since the facts related to the application of both husband and wife are identical, and since the findings of the Citizenship Judge with respect to each are effectively the same, I have dealt with both applications for appeal in these Reasons for Order and Orders.

² The sections of the Citizenship Act R.S.C. ch. C-29 referred to in these Reasons, being s. 5 (1) (3) (4) and s. 15 (1), are quoted in the Appendix.

³      According to my interpretive findings in MCI v. Wing Tung Thomas Yeung (F.C.T.D. No. T-1256-98, rendered 3 February 1999), the issue in appeals such as those herein is whether the Citizenship Judge made a reviewable error.

⁴      Applicants' Application Records, p. 20.

⁵      On T-629-00, Applicant's Application Record, p. 24; and on T-630-00, Applicant's Application Record p. 27.