Date: 20000503
Docket: T-912-99
BETWEEN:
JACK HSIEN TSONG CHENG
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS, J.
[1] This is a judicial review application of the decision of Citizenship judge, Stuart M. Hodgson, dated March 26, 1999 wherein the applicant was refused Canadian citizenship.
FACTS
[2] The applicant and his family came to Canada and became landed immigrants on July 17, 1993. Prior to his arrival, he had spent 10 years in Taiwan in the Automotive Industry. He became a Senior Engineer for the Ford Motor Company, in 1991.
[3] A week after landing in Canada, he returned to Taiwan with his family to wrap up his employment connections with Ford Motor Company. They returned to Canada in February 1994 to find a home and set up a consulting company, called "Enfini Entreprises Inc.". The family, including the applicant returned to Taiwan on February 9, 1994. They moved into the family home in Vancouver in August 1994. On August 27, 1994 the applicant returned to Taiwan to continue work on his company.
[4] In 1995, Ford Motor Company in Europe asked the applicant to assist Ford UK as a liaison coordinator in purchasing and parts control on a two-year contract.
[5] In 1997, Ford UK started a new program to produce a commercial van "Transit" in China and the applicant"s job moved there. The applicant entered into a three-year contract with Ford UK, and moved to China. He is to remain there until July 2000.
[6] During his stay in Taiwan, the applicant resides with his parents, having sold his residence in June 1994. During his stay in other parts of Asia and Europe, he lives in hotels.
[7] The applicant has obtained a two-year returning resident permit from March 1996 to March 1998.
[8] The applicant has provincial medical coverage, bank accounts, a driver license and a social insurance number. He owns a home and a car and has paid income taxes since 1995.
[9] On February 2, 1998, he applied for Canadian citizenship, which was refused on March 26, 1999.
THE CITIZENSHIP JUDGE"S DECISION
[10] The Citizenship judge found that the applicant met all the requirements set out in the Citizenship Act, except the residency requirement. He noted that since February 9, 1994, the applicant made 16 trips to Asia, 8 trips to Europe, and 2 trips to the USA. The applicant"s absences totalled 1181 days in the four years preceding the application.
[11] The Citizenship judge was not satisfied that these absences could be counted as a period of residence in Canada. He was of the opinion that the applicant had to spend more time living in Canada and learning the Canadian way of life.
[12] He concluded that the applicant did not spend enough time in Canada and refused the citizenship application.
ISSUES
| [13] #1 Was the Citizenship judge under an obligation to mention all the evidence presented before him? |
| #2 Did the Citizenship judge err in refusing to grant the applicant the Canadian citizenship? |
ANALYSIS
| #1 Was the Citizenship judge under an obligation to mention all the evidence presented before him? |
[14] The applicant submits that the Citizenship judge omitted to mention in his reasons some evidence presented.
[15] Justice Evans explained in Cepeda-Gutierrez v. M.C.I. (1998), 157 F.T.R. 35:
| The Court may infer that the administrative agency under review made the erroneous finding of fact "without regard to the evidence" from the agency's failure to mention in its reasons some evidence before it that was relevant to the finding, and pointed to a different conclusion from that reached by the agency. Just as a court will only defer to an agency's interpretation of its constituent statute if it provides reasons for its conclusion, so a court will be reluctant to defer to an agency's factual determinations in the absence of express findings, and an analysis of the evidence that shows how the agency reached its result. |
| On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court (Medina v. Canada (Minister of Employment and Immigration) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it (see, for example, Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources. A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact. |
| However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact. |
[16] Although that decision was in the context of a refugee determination process, it is clear from the wording used that it applies to administrative agencies, which is the case herein.
[17] The fact that all the evidence is not mentioned does not constitute an error. The Citizenship judge is presumed to have taken into consideration all the evidence submitted. It would be too onerous a task to mention every piece of evidence submitted either written or during the interview.
[18] The applicants cites numerous omissions in the reasons: his attempts to find and secure employment, the reasons for his absences, his efforts to Canadianize himself, his success in obtaining a returning resident permit.
[19] I don"t see how any of these factors would lead the Citizenship judge to reach an opposite conclusion than the one reached. The applicant did not stay in Canada long enough to find a job. Job searching requires spending time in Canada, which the applicant was not prepared to do. The Citizenship judge was well aware of the reasons for his absence, as is evident from his notes. As to his efforts to Canadianize himself, he had not convinced the Citizenship judge of this fact.
[20] In my opinion, the Citizenship judge did not err in omitting to mention all the evidence presented.
| #2 Did the Citizenship Judge err in refusing to grant the applicant the Canadian citizenship? |
[21] Paragraph 5(1)c) of the Citizenship Act states:
| 5. (1) The Minister shall grant citizenship to any person who (c) has been lawfully admitted to Canada for permanent residence, has not ceased since such admission to be a permanent resident pursuant to section 24 of the Immigration Act, and has, within the four years immediately preceding the date of his application, accumulated at least three years of residence in Canada |
5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois_: c) a été légalement admise au Canada à titre de résident permanent, n'a pas depuis perdu ce titre en application de l'article 24 de la Loi sur l'immigration, et a, dans les quatre ans qui ont précédé la date de sa demande, résidé au Canada pendant au moins trois ans en tout, |
[22] The Federal Court has developed three tests to deal with the issue of residency. Justice Thurlow in Re Papadiorgakis, [1978] 2 F.C. 208, was of the view that physical presence in Canada was not necessary to satisfy the residency requirement, set out in paragraph 5(1)c). Justice Reed formulated in Re Koo, [1993] 1 F.C. 286, a six-step test to determine if the applicant had centralized his mode of existence in Canada. Justice Muldoon interpreted the residency requirement strictly in Re Pourghasemi, (1993), 62 F.T.R. 122, making the physical presence in Canada mandatory.
[23] Justice Lutfy, in Lam v. Canada (M.C.I.) (1999), 164 F.T.R. 177, clarified the state of the law regarding the residency requirement and identified the appropriate standard of review:
| Justice and fairness, both for the citizenship applicants and the Minister, require some continuity with respect to the standard of review while the current Act is still in force and despite the end of the de novo trials. The appropriate standard, in these circumstances, is one close to the correctness end of the spectrum. However, where citizenship judges, in clear reasons which demonstrate an understanding of the case law, properly decide that the facts satisfy their view of the statutory test in paragraph 5(1)(c), the reviewing judges ought not to substitute arbitrarily their different opinion of the residency requirement. It is to this extent that some deference is owed to the special knowledge and experience of the citizenship judge during this period of transition. |
[24] The law as it stands today, allows the Citizenship judges to rely on any one of the three case law mentioned above, in determining whether the residency requirement was satisfied. As long as the decision is correct, this Court must exercise curial deference.
[25] In the present case, the Citizenship judge did not identify which case law he adopted in arriving to his conclusion. He writes:
| Unfortunately, you have not spent enough time in Canada and although you have a strong desire to become a Canadian citizen, I believe you have to spend more time living in Canada and learning the Canadian way of life. |
[26] This approach seems to be consistent with Justice Muldoon"s reasoning in Re Pourghasemi, supra, approach, where he held:
| It is clear that the purpose of paragraph 5(1)(c) is to insure that everyone who is granted precious Canadian citizenship has become, or at least has been compulsorily presented with the everyday opportunity to become, "Canadianized". This happens by "rubbing elbows" with Canadians in shopping malls, corner stores, libraries, concert halls, auto repair shops, pubs, cabarets, elevators, churches, synagogues, mosques and temples - in a word wherever one can meet and converse with Canadians - during the prescribed three years. One can observe Canadian society for all its virtues, decadence, values, dangers and freedoms, just as it is. That is little enough time in which to become Canadianized. If a citizenship candidate misses that qualifying experience, then Canadian citizenship can be conferred, in effect, on a person who is still a foreigner in experience, social adaptation, and often in thought and outlook. If the criterion be applied to some citizenship candidates, it ought to apply to all. |
[27] The Citizenship judge after reviewing the evidence concluded that the applicant is not familiar with Canadian life. This conclusion was reasonably open to him, seeing the fact that the applicant is hardly ever in Canada. I am unable to find an error in this decision and therefore, this Court should not intervene.
[28] Even if the Citizenship judge opted for the Re Koo approach, I am not convinced that he would have been able to prove that he centralized his mode of existence in Canada.
[29] Regarding the first question of the test, as to whether the individual was physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship, the evidence does not support his case.
[30] The applicant could not identify a period of time, where it can be said that he actually lived in Canada for a long period of time. He left Canada a week after his landing. He returned in early February 1994 but left the 9th of February 1994. He did not return until August 4, 1994, where he stayed for three weeks before leaving again. The extent of his presence was always less than a month in Canada and this was mostly around the holidays, Christmas and New Year and sometime in the summer. The longest stay in Canada was from April 6th, 1997 to May 3rd 1997 for a total of 27 days.
[31] I don"t doubt that the applicant satisfies the second question, since his immediate family and dependents reside in Canada.
[32] As to the third question, whether the pattern of physical presence in Canada indicate a returning home or merely visiting the country, I am not convinced that it is not more than visiting his family in Canada.
[33] Upon examining the extent of the physical absences, it is evident that the applicant was absent for an extensive period of time. He was absent for 1181 days and is missing 815 days out of the required 1095 days.
[34] With concern to the fifth question, whether the physical absence is caused by a clearly temporary situation such as employment as a missionary abroad, following a course of study abroad as a student, accepting temporary employment abroad, accompanying a spouse who has accepted temporary employment abroad, it is not clear that the situation is temporary.
[35] As to the quality of the connection with Canada, on the one hand, his family lives in Canada, on the other hand, his work has always been outside of Canada.
[36] I am not convinced that the Citizenship judge erred even if we applied the Re Koo test.
[37] It is always difficult for landed immigrants who work abroad to accept the fact that their families who live in Canada are Canadian citizens and yet themselves who are the breadwinner are excluded from that privilege, even though they are subjected to the same rules, including paying taxes.
[38] However, the applicant did not convince me that the Citizenship judge erred in refusing the application. This application should be dismissed.
Pierre Blais
Judge
OTTAWA, ONTARIO
May 3, 2000