Citation: 2005 FC 114
BETWEEN:
NABIL ISKANDER IBRAHIM
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] By all accounts Mr. Ibrahim would make a good Canadian citizen. Since obtaining Permanent Resident status here as an investor, he has not only lived up to the financial commitments required of him, but has also invested in another business. He has been active in the community and intends to retire here.
[2] The Citizenship Judge rejected his application for citizenship on the grounds that he did not meet residency requirements. The Citizenship Act, R.S.C. c. C-29 requires that a permanent resident accumulate at least three years of residence in the four years immediately preceding the date of his application. Had Mr. Ibrahim been physically present here for at least 1095 days there would have been no problem. However he was only here 815 days. In other words, he was short 280 days.
[3] Although there are cases, in particular re: Pourghasemi (1993), 62 F.T.R. 122, which say residency means physical presence, no excuses, there are other cases which have held that once a person has established himself in Canada there may be legitimate reasons which might excuse an absence.
[4] The Citizenship Judge chose, as she was quite entitled to do, to follow the dictates of Reed J. in Re Koo [1993] 1 F.C. 286, (1992) 59 F.T.R. 27. In that case Reed J. posed six questions which might be of assistance in determining whether an applicant regularly, normally or customarily lives in Canada or, put another way, whether Canada is the country in which he or she has centralized his or her mode of existence.
[5] The Citizenship Judge noted that although Mr. Ibrahim and a business partner arrived at the same time, his wife and family were left behind in Egypt. He also went to Egypt to arrange to export Canadian products.
[6] Unfortunately his partner died which led him to assist in winding up both his partner's business interests and his own business interests, in the Middle East. Although his sons, who are adults, have expressed no intention to come to Canada, he took some time, quite naturally, to attend one son's wedding. He was also caught up in 9/11.
[7] The issues here are mixed ones of fact and law. Did the Citizenship Judge reasonably ascertain the facts and reasonably apply the law to them. Following Dr. Q v. The College of Physicians and Surgeons of British Columbia [2003] 1 S.C.R. 226 and Law Society of New Brunswick v. Ryan [2003] 1 S.C.R 247. the standard of judicial review is reasonableness simpliciter. Many recent cases adopt this approach (Canada (Minister of Citizenship and Immigration) v. Fu [2004] F.C.J. 88 and Canada (Minister of Citizenship and Immigration) v. Chang [2003] F.C.J. 1871, 2003 F.C. 1472).
[8] Findings of fact include inferences drawn therefrom. The fundamental concern raised by Mr. Ibrahim is that the Citizenship Judge was not justified in finding a pattern to his absences, a pattern which satisfied her that he had not centralized his mode of living in Canada. The incidents were, he says, isolated and one-off. He is upset with adverse inferences drawn from the fact that his wife has not yet applied to become a Canadian Permanent Resident. Right from the outset, when he came here in 1997, it was made clear that his wife would not come here on a permanent basis until he had established himself and had obtained citizenship. She holds a British passport and is in position to visit Mr. Ibrahim here frequently, and to travel with him when he is not in Egypt or Kuwait.
[9] There can only be one correct decision, but there can be many decisions which are not unreasonable. Had I been the decision maker, I might well have been satisfied with the explanations given for Mr. Ibrahim's absences and approved his application for citizenship. Or, if I did not approve the application, I might have nevertheless recommended that the Minister in his discretion waive the shortfall, something that the Citizenship Judge in this case did not do. However, I do not sit in first instance, I sit in review. The question I must ask is whether the Citizenship Judge was unreasonable. The answer is no.
[10] If Mr. Ibrahim maintains his permanent resident status and accumulates more days here, he should reapply.
ORDER
THIS COURT ORDERS that the application for judicial review of the decision of Rochelle Burns, Citizenship Judge, dated March 30, 2004 is dismissed.
"Sean Harrington"
J.F.C.
Ottawa, Ontario
January 25, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-928-04
STYLE OF CAUSE: NABIL ISKANDER IBRAHIM
AND
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JANUARY 21, 2005
REASONS FOR ORDER
AND ORDER : HARRINGTON J.
DATED: JANUARY 25, 2005
APPEARANCES:
Charlotte Janssen FOR APPLICANT
Deborah Drukarsh FOR RESPONDENT
SOLICITORS OF RECORD:
Janssen & Associates
Toronto, Ontario FOR APPLICANT
John H. Sims, Q.C.
Deputy Minister of Justice and
Deputy Attorney General of Canada FOR RESPONDENT