WILLIAM LEONARDO BOLIVAR Applicant v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION, 2014 FC 973

Date: 20141014 Docket: T-1933-13 Citation: 2014 FC 973 Toronto, Ontario, October 14, 2014 PRESENT: The Honourable Mr. Justice Campbell BETWEEN: WILLIAM LEONARDO BOLIVARApplicantand THE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent ORDER AND REASONS [1] In the decision presently under review, dated October 31, 2013, the Applicant’s application for citizenship was rejected by aCitizenship Judge for the sole reason that he had failed to meet the residency test applied to his application pursuant to s. 5(1)(

c) of theCitizenship Act, R.S. 1985, c. C-29 (Act). [2] In his application the Applicant gave personal family reasons for failing to be physically present in Canada for 1095 daysduring the period required by the Act. The Applicant’s reasons were not taken into consideration by the Citizenship Judge in rejecting theApplicant’s application according to the most stringent test for residence as follows: In deciding whether you satisfy the residence requirement under paragraph 5(1)(

c) of the Act, I have chosen to adopt the analyticalapproach used by the Honourable Mr. Justice Muldoon in Re Pourghasemi. In Pourghasemi, [1993) F.C.J.

No. 232 (T.D.), Muldoon J.considered that it was necessary for a potential citizen to establish that he or she has been physically present in Canada for 1,095 daysduring the relevant four year period. [3] Counsel for the Applicant argues that, given the Applicant’s evidence that compelling reasons existed for the Applicant’sabsence from Canada, the Citizenship Judge erred by failing to consider the more flexible approach to the residence requirement asstated in Re Koo, (FC), [1992] F.C.J.

No. 1107 (T.D.). [4] While it is well established that it was open to the Citizenship Judge to choose which test to apply to the Applicant’sapplication, I find that the decision under review does not conform with the standard set out in Seiffert v Canada (Minister of Citizenshipand Immigration), 2005 FC 1072 at paragraphs 16 - 17: As each case turns on its own merits, I find that no precedent will help me decide whether a denial of justice occurred in the presentcase.

The question to be answered is whether the Applicant, both for himself and the members of his family, had a reasonableopportunity during the interview to persuade the Citizenship Judge that the complex and extensive evidence before him warranted apositive citizenship decision. I have no hesitation in saying that the Applicant was not provided with this opportunity. It is very clear from the decision rendered, that the written material did not impress the Citizenship Judge sufficiently to give a positivedetermination.

In such circumstances, it was critically important for the Citizenship Judge to give the Applicant a solid chance to use hispowers of persuasion to change his mind. I agree with Counsel for the Applicant that the Citizenship Judge closed the door to thisopportunity.

Therefore, on the facts of the present case, I find that the failure to accord this meaningful opportunity to be heard is adenial of natural justice. [5] Thus, in the present case, because the Citizenship Judge applied the test in Pourghasemi rather than that in Koo, without firstconsidering all the evidence presented by the Applicant, and without providing the Applicant with an opportunity to persuade theCitizenship Judge to apply Koo rather than Pourghasemi, I find that the decision rendered was in breach of the duty of fairness owed tothe Applicant. [6] As a result, I find the decision under review is made in reviewable error.

ORDER THIS COURT ORDERS that the decision under review is set aside and the matter is referred back for redetermination. I make no award as to costs. “Douglas R. Campbell” Judge

FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1933-13 STYLE OF CAUSE: WILLIAM LEONARDO BOLIVAR v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: October 7, 2014 ORDER AND REASONS BY: CAMPBELL J. DATED: October 14, 2014 APPEARANCES : MICHEAL CRANE For The Applicant LORNE McCLENEGHAN For The Respondent SOLICITORS OF RECORD : Micheal Crane Barrister & Solicitor Toronto, Ontario For The Applicant William F. Pentney Deputy Attorney General of Canada For The Respondent