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Date: 20040901

Docket: T-1478-03

Citation: 2004 FC 1204

BETWEEN:

                                                                             

ALON VINOGRADOV

                                                                                                                                            Applicant

                                                                           and

                                                    MINISTER OF CITIZENSHIP

AND IMMIGRATION

                                                                                                                                        Respondent

                                                        REASONS FOR ORDER

SIMPSON J.:

                                                                             

[1]         The Applicant's appeal is brought pursuant to section 14(5) of the Citizenship Act, RSC 1985, c. C-29 (the "Act") from a decision of a Citizenship Judge (the "Judge") dated June 19, 2003 (the "Decision") in which she declined to approve his application for permanent residence and to recommend the exercise of discretion under sections 15(1) and 5(4) of the Act;

[2]                This matter was heard in Toronto on Monday, August 30, 2004 in the presence of the self-represented Applicant and counsel for the Respondent.

[3]                The Applicant takes no issue with the Judge's determination that his application failed to meet the residency requirement. This occurred because, following a conviction for possession of a weapon (the "Conviction"), the Applicant was given a probation order commencing on March 20, 2000 and ending on September 30, 2002. Since section 21 of the Act does not allow this time to be counted, he was 252 days short of his residency requirement.

[4]                However, the Applicant does take issue with the Judge's refusal to exercise her discretion in favour of making a recommendation based on special and unusual hardship under section 5(4) of the Act. (It was acknowledged before me that the compassionate grounds in section 5(3) of the Act do not apply in this case).

[5]                Although the evidence of the Conviction was a negative factor, at the time of the Decision the Judge also had evidence before her that, since 1998, the Applicant has been with the military. He had served as a soldier in the Governor General's Horse Guards, Primary Reserve (the "Reserve"). He was promoted to Corporal in 2002 and was employed as the driver of an armoured vehicle. Further, in spite of his Conviction, the military recommended that his application for citizenship be granted.

[6]                Based on this evidence it is my conclusion that it was open to the Judge to decline to exercise her discretion under section 15(1) of the Act.

[7]                However, there is new evidence which was not available at the time the Judge made her Decision. It can be summarized as follows:

-            The Applicant has now met the residency requirement of 1095 days. This was acknowledged by counsel for the Respondent.

-            The Applicant has just graduated from Ryerson University with a degree in Mechanical Engineering. This fact was not in dispute.

-            The Reserve requires the Applicant to be a Canadian citizen to continue his employment and has already given him two extensions of employment in the hope that his citizenship will be granted. This was not disputed.

-            the Reserve has not withdrawn its recommendation that the Applicant be granted citizenship.

[8]                I have concluded that, on the basis of this new evidence, the Appeal will be allowed.

                                                                                                                             "Sandra J. Simpson"                 

                                                                                                                                                   J.F.C.                              

Toronto, Ontario

September 1st, 2004                                                                             


                                                             FEDERAL COURT

                                                                             

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                       T-1478-03

STYLE OF CAUSE:                           ALON VINOGRADOV

                                                                                                                                              Applicant

and

MINISTER OF CITIZENSHIP AND

IMMIGRATION

                                                                                                                                          Respondent

PLACE OF HEARING:                                 TORONTO, ONTARIO

DATE OF HEARING:                                   AUGUST 30, 2004

REASONS FOR ORDER BY:                      SIMPSON J.

DATED:                                                          SEPTEMBER 1, 2004

APPEARANCES BY:

ALON VINOGRADOV

                                                                        FOR THE APPLICANT (Self-Represented)

MATINA KARVELLAS         

FOR THE RESPONDENT      

SOLICITORS ON THE RECORD:

ALON VINOGRADOV

Toronto, Ontario                                               FOR THE APPLICANT (Self-Represented)

Morris Rosenberg

Deputy Attorney General of Canada

Toronto, Ontario

FOR THE RESPONDENT


                                         

                         FEDERAL COURT

                                         

Date: 20040901

Docket: T-1478-03

BETWEEN:

ALON VINOGRADOV

                                                                    Applicant

and

MINISTER OF CITIZENSHIP AND          IMMIGRATION

                                                                Respondent

                                                                                                                               

                    REASONS FOR ORDER

                                                                                                                             


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