Date: 19990617
Docket: T-2063-98
OTTAWA, ONTARIO, THIS 17TH DAY OF JUNE 1999
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN :
AKUA BANDELE UWE AKAN
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER and ORDER
(Delivered orally from the Bench
in Ottawa on June 15, 1999)
PELLETIER J.
[1] At the conclusion of the hearing of this matter, I gave oral reasons from the Bench. This is the text of those reasons which have been edited for completeness and grammar.
[1] This is an appeal by the applicant Akua Bandele Uwe Akan from the decision of the Citizenship Court Judge Suzanne Pinel dismissing the applicant"s claim for Canadian citizenship.
[2] The facts are not complicated and are set out in the Judge"s decision. The applicant is a physician who left Nigeria and came to Canada as a landed immigrant on June 6, 1973.. His wife did the same on July 24, 1973. The applicant and his wife have four children, two of whom were born in Canada. With the applicant"s help, the children who were not citizens have become landed immigrants.
[3] The applicant became a member of the Ontario College of Physicians and Surgeons in 1973. He was certified as a specialist in general surgery by the Canadian and American licensing bodies in 1976.
[4] In 1988 the applicant"s only brother died leaving 6 children. The applicant"s aged parents also needed care. The applicant returned to Nigeria to settle his brother"s affairs in 1988 and has essentially been there since, though he has returned to visit on 90 occasions. He was physically present in Canada for 384 days in the 4 years preceding his application. The applicant"s family has remained in Canada in the family home. The applicant has maintained bank accounts in Canada during his absence. He has returned to Canada when it was opportune to do so, including for anniversaries and the graduation of his daughter from university.
[5] On these facts, the Citizenship Court Judge found that the applicant did not meet the residency requirements set out at ss.5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29. She indicated that she was following the approach set out by Reed J. in Re Koo, [1992] F.C.J. No. 1107 (Q.L.). On the basis of that approach, she found that the applicant had centralized his ordinary mode of life in Nigeria, not Canada. Reed J. set out 6 questions in Koo by which one could assess the question of residency. The Citizenship Court Judge could reasonably find, on the evidence before her, that the applicant"s absences from Canada were not recent (question 1), that the pattern of absences was extensive (question 4) and that the absence was not clearly temporary, having persisted in excess of 10 years (question 5). The Citizenship Court Judge could reasonably and perhaps correctly come to the conclusion she did on the evidence before her.
[6] On the other hand, had the Citizenship Court Judge emphasized the family connection, the maintenance of the family home in Canada, the assistance provided to the non-Canadian children to immigrate to Canada, she could have come to a different conclusion.
[7] I believe that the approach to be taken to citizenship appeals is that set out in Re Lam, (1999) F.C.J. 410, a decision of my colleague Lutfy J. Lutfy J. characterized the issue in citizenship appeals as one of standard of review. The Citizenship Court is a specialized tribunal operating within its field of expertise. To that extent its decisions, even on appeal, are entitled to a certain deference. See the comments of Iaccobucci J. in Southam Newspapers Inc. v. Competition Tribunal, [1997] 1 S.C.R. 748.
[8] Given the divided opinions in this Court on the meaning of residency, a Citizenship Court Judge can choose to follow any of those approaches without being found wrong on that count alone. However, having chosen an approach, the Citizenship Court Judge is bound to apply that approach properly, the standard of review lying between correctness on one hand and reasonableness on the other.
[9] In this case the Citizenship Court Judge chose to apply Koo, which she was entitled to do. She applied the test and came to a reasonable conclusion, if not a correct one. My function is not to substitute my judgment for hers. If she has properly applied the test, I ought not to disturb her
decision. I find that she has properly applied the test and that no interference by this Court is warranted.
[10] The applicant also asks for the Citizenship Court Judge to be directed to make a recommendation for citizenship to the Minister pursuant to s.15(1) of the Act on the basis of hardship as provided in s.5(4) of the Act. The power to make such a recommendation is purely discretionary, and absent some improper motive, I am not prepared to interfere with the Citizenship Court Judge"s exercise of her discretion.
[11] For the reasons stated, I make the following order:
O R D E R
UPON THE APPLICATION of Akua Bandele Uwe Akan appealing the decision of Citizenship Court Judge Suzanne Pinel dated September 28, 1998, dismissing the Applicant"s application for Canadian citizenship; and
UPON HEARING read the affidavit of Akua Bandele Uwe Akan, and upon hearing counsel for the applicant and the respondent Minister of Citizenship and Immigration;
IT IS HEREBY ordered that the appeal is dismissed.
"J.D. Denis Pelletier"
Judge