Ayaz v. Canada (Minister of Citizenship and Immigration), (2014) 459 F.T.R. 191 (FC)

• Judge: Russell, J.
• Court: Federal Court (Canada)
• Case Date: April 07, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2014), 459 F.T.R. 191 (FC);2014 FC 701

Ayaz v. Can. (M.C.I.) (2014), 459 F.T.R. 191 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] F.T.R. TBEd. JL.035

Muhammad Ayaz (applicant) v. The Minister of Citizenship and Immigration (respondent)

(T-1487-13; 2014 FC 701; 2014 CF 701)

Indexed As: Ayaz v. Canada (Minister of Citizenship and Immigration)

Federal Court

Russell, J.

July 15, 2014.

Summary:

A Citizenship Judge refused Ayaz's citizenship application under s. 5(1) of the Citizenship Act, after applying the numerical, physical presence test. Ayaz had asked the judge to apply the Koo substantial connection test, on the basis that he had no choice but to work abroad to ensure that his father's business did not fail when his father became ill. He appealed under s. 14(5) of the Act, on the grounds that the judge erred by: (1) not explaining why he chose to apply the strict residency test; and (2) by not considering whether to recommend granting citizenship through the "special and unusual hardship" exception under s. 5(4) of the Act.

The Federal Court, on a standard of review of reasonableness, dismissed the application on both grounds.

Aliens - Topic 2510

Naturalization - General - Duties of Citizenship Judge (incl. duty re reasons) - [See first Aliens - Topic 2525 ].

Aliens - Topic 2525

Naturalization - Qualifications - Residence - A Citizenship Judge refused the applicant's citizenship application under s. 5(1) of the Citizenship Act, after applying the numerical, physical presence test - The applicant had asked the judge to apply the Koo substantial connection test - The Federal Court dismissed the appeal - "The case law is clear that, as unsatisfactory and unfair as the situation is, a citizenship judge can choose to apply any one of three recognised tests for citizenship. ... The Applicant has cited no case law that supports his position that a citizenship judge must somehow rationalize whichever test he or she chooses, and must provide reasons for the choice. The Court has long lamented the current state of the law on this issue but, until Parliament rectifies the situation, the choice of which of the three tests to apply appears to be at the complete discretion of the citizenship judge. No reasons for the choice are required because the Court has recognised that a physical presence and a qualitative approach are equally suitable. An applicant who cannot fulfill the quantitative requirement cannot compel the citizenship judge to undertake a qualitative approach and/or provide a rationale for not doing so." - See paragraphs 41 to 43.

Aliens - Topic 2525

Naturalization - Qualifications - Residence - A Citizenship Judge refused the applicant's citizenship application under s. 5(1) of the Citizenship Act, after applying the numerical, physical presence test - On appeal, the applicant raised an issue with regards to the judge's treatment of s. 5(4) of the Act, on the basis that he had provided extensive humanitarian and compassionate evidence to the judge about the circumstances that caused him to leave Canada to attend to family and business issues - The Federal Court held that the applicant had not demonstrated that he or his family would face some hardship beyond the delay in acquiring citizenship - Reading the decision and the record as a whole, the evidence presented did not amount to the kind of "special and unusual hardship" that would justify a recommendation under s. 5(4) - A decision under s. 5(4) was entitled to great deference - While there was no firmly established test for "special and unusual hardship" under s. 5(4), "it is not purely or even primarily a question of whether the individual in question would make a desirable citizen, or has good reasons (perhaps even, as in the present case, laudable reasons) for not being able to comply with the requirements of the Act strictly read. Rather, the Court has to consider as well whether the effect of applying those requirements strictly and thus denying citizenship would impose some hardship on the applicant or their family beyond the delay in citizenship itself." - See paragraphs 45 to 55.

Aliens - Topic 2527

Naturalization - Qualifications - Recommendation on grounds of special and unusual hardship - [See second Aliens - Topic 2525 ].

Cases Noticed:

Canada v. Hung (1999), 47 Imm. L.R.(2d) 182 (F.C.T.D.), refd to. [para. 1].

Canada (Minister of Citizenship and Immigration) v. Wang (2009), 360 F.T.R. 1; 87 Imm. L.R.(3d) 184; 2009 FC 1290, refd to. [para. 1].

Hao v. Canada (Minister of Citizenship and Immigration) (2011), 383 F.T.R. 125; 2011 FC 46, refd to. [para. 1].

Koo, Re, [1993] 1 F.C. 286; 59 F.T.R. 27; 19 Imm. L.R.(2d) 1 (T.D.), refd to. [para. 7].

Pourghasemi, Re (1993), 62 F.T.R. 122 (T.D.), refd to. [para. 11].

Canada (Minister of Citizenship and Immigration) v. Takla (2009), 359 F.T.R. 248; 2009 FC 1120, refd to. [para. 16].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 17].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2013), 446 N.R. 65; 2013 SCC 36, refd to. [para. 17].

El Ocla v. Canada (Minister of Citizenship and Immigration) (2011), 389 F.T.R. 241; 2011 FC 533, refd to. [para. 18].

Rousse v. Canada (Minister of Citizenship and Immigration) (2012), 413 F.T.R. 4; 2012 FC 721, refd to. [para. 18].

El Falah v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 730; 2009 FC 736, refd to. [para. 18].

McLean v. British Columbia Securities Commission (2013), 452 N.R. 340; 347 B.C.A.C. 1; 593 W.A.C. 1; 2013 SCC 67, refd to. [para. 19].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 19].

Kalkat v. Canada (Minister of Citizenship and Immigration) (2012), 412 F.T.R. 161; 2012 FC 646, refd to. [para. 19].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 20].

Lam v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 177 (T.D.), refd to. [para. 22].

Imran v. Canada (Minister of Citizenship and Immigration) (2012), 413 F.T.R. 138; 2012 FC 756, refd to. [para. 22].

Cardin v. Canada (Minister of Citizenship and Immigration) (2011), 382 F.T.R. 164; 2011 FC 29, refd to. [para. 23].

Canada (Minister of Citizenship and Immigration) v. Baron (2011), 388 F.T.R. 261; 2011 FC 480, refd to. [para. 23].

Papadogiorgakis, Re, [1978] 2 F.C. 208 (T.D.), refd to. [para. 24].

Cepeda-Gutierrez et al. v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (T.D.), refd to. [para. 30].

Farshchi v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 341; 2007 FC 487, refd to. [para. 32].

Murphy v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 276; 2011 FC 482, refd to. [para. 33].

Ghaedi v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 47; 2011 FC 85, refd to. [para. 33].

Salako v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 451; 2013 FC 970, refd to. [para. 35].

Huang v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 276; 2013 FC 576, refd to. [para. 35].

Ghosh v. Canada (Minister of Citizenship and Immigration) (2013), 429 F.T.R. 150; 2013 FC 282, refd to. [para. 35].

Atwani v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 835; 2011 FC 1354, refd to. [para. 37].

Arif v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 363; 2007 FC 557, refd to. [para. 39].

Naber-Sykes, Re, [1986] 3 F.C. 434; 4 F.T.R. 204 (T.D.), refd to. [para. 50].

Linde v. Canada (Minister of Citizenship and Immigration), [2001] F.T.R. Uned. 465; 2001 FCT 739, refd to. [para. 52].

Khat, Re (1991), 49 F.T.R. 252 (T.D.), refd to. [para. 52].

Akan v. Canada (Minister of Citizenship and Immigration) (1999), 170 F.T.R. 158 (T.D.), refd to. [para. 52].

Statutes Noticed:

Citizenship Act, R.S.C. 1985, c. C-29, sect. 5(1) [para. 21]; sect. 5(4) [para. 49].

Counsel:

Matthew Jeffery, for the applicant;

David Knapp, for the respondent.

Solicitors of Record:

Matthew Jeffery, Toronto, Ontario, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application was heard at Toronto, Ontario, on April 7, 2014, before Russell, J., of the Federal Court, who delivered the following judgment and reasons for judgment, dated July 15, 2014, at Ottawa, Ontario.