Date: 19990203
Docket: T-1256-98
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Applicant,
- and -
WING TUNG THOMAS YEUNG,
Respondent.
REASONS FOR ORDER AND ORDER
CAMPBELL, J.
[1] I am in agreement with Rouleau, J.'s decision in MCI v. Hin Keung Hung (F.C.T.D. No. T-1345-98, rendered 21 December 1998), that under the new rules, citizenship appeals are no longer trials de novo, and, therefore, are governed by s.18.1(4) of the Federal Court Act. In this respect, for a decision of a citizenship judge to be set aside, it is necessary to find reviewable error. Apart from clear errors of law, which are rare, citizenship appeals under the new rules focus on s.18.1(1)(d), about which Rouleau, J. in Hung at 4 says as follows:
| Section 18.1(1)(d) essentially codifies the way the courts have viewed findings of fact made by administrative tribunals. In Kibale v. Transport Canada (1988), 90 N.R. 1 (F.C.A.) at 4, leave to S.C.C. refused (1989), 101 N.R. 238 (S.C.C.), Pratte J.A. stated that "even if the court is convinced that a decision is based on an erroneous finding of fact, it cannot intervene unless it is also of the opinion that the lower court, in making its finding, acted in a perverse or capricious manner, or without regard for the evidence." Not only must the finding of fact be perverse or capricious or without regard to the evidence before the adjudicator, this court must make such a finding if it is to interfere pursuant to s.18.1(4)(d). |
[2] The present case turns on whether the citizenship judge correctly interpreted the terms of s.5(c) of the Citizenship Act (the "Act") which reads as follows:
| 5. (1) The Minister shall grant citizenship to any person who |
| (a) makes application for citizenship; |
| (b) is eighteen years of age or over; |
| (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 calculated in the following manner: |
| (i) for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and |
| (ii) for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence; |
| (d) has an adequate knowledge of one of the official languages of Canada; |
| (e) has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship; and |
| (f) is not under a deportation order and is not the subject of a declaration by the Governor in Council made pursuant to section 20. [Emphasis added]. |
[3] There is divided opinion on this Court as to the interpretation to be placed on the residency requirement set out in s.5(c). I find that Thurlow, J.'s reasons in Re Papadogiorgakis, [1978] 2 F.C. 208 at 214, are compelling, and, therefore, accept the test to be applied as follows:
| A person with an established home of his own in which he lives does not cease to be resident there when he leaves it for a temporary purpose whether on business or vacation or even to pursue a course of study. The fact of his family remaining there while he is away may lend support for the conclusion that he has not ceased to reside there. The conclusion may be reached, as well, even though the absence may be more or less lengthy. It is also enhanced if he returns there frequently when the opportunity to do so arises. It is, as Rand J. appears to me to be saying in the passage I have read, "chiefly a matter of the degree to which a person in mind and fact settles into or maintains or centralizes his ordinary mode of living with its accessories in social relations, interests and conveniences at or in the place in question.". |
[4] On the basis of Re Papadogiorgakis, it is clear that to meet the residency requirement in s.5(c) of the Act a person must have an "established home" in Canada and not cease to be a resident there. However, also according to Thurlow, J.'s reasoning, the 1095 days of residence in Canada prior to the date of a citizenship application required by s.5(c) of the Act is not a rigid standard.
[5] With respect to determining whether a person has established a home in Canada or, if so, ceases to be resident there, I completely agree with the approach of Dubé, J. in Re Banerjee (1994), 25 Imm. L.R. (2d) 235 (F.C.T.D.) stated at 238 as follows:
| However, each case must turn on its own facts. It is the quality of the attachment to Canada that is to be ascertained. No specific item or number of items will, in all cases, be determinative of the issues .... The length of the absences of itself is not determinative. However, taken together with the circumstances which surround the absences, the length of the absences may be a factor in determining a person's quality of attachment to Canada .... [citations omitted] [Emphasis added]. |
[6] In this case, the applicant makes two arguments: there is a clear error of law in the citizenship judge's decision; and the decision is made without regard for the evidence.
[7] The applicant's second argument is based principally on the facts that, at the time of acquiring permanent residence status in Canada on October 1, 1998, the respondent was pursuing his education at the University of Texas and between that date, and the filing of his application for citizenship, the respondent spent only 380 days in Canada. Thus, the applicant argues that the respondent did not establish a residence in Canada, and, even if he did, his presence in Canada is far short of the 1095 days required by s.5(c) of the Act.
[8] In the brief reasons provided for granting citizenship, the citizenship judge made these findings respecting residency:
| The applicant Yeung, Thomas has been absent from Canada due to [sic] his studies in the U.S.A. He was granted a Ph D in 1995 and spent time doing Post Doctoral study in U C Berkeley. His parents and a younger sister live in Vancouver and own a home at 6411 Butler St., where the applicant visited on holidays etc. |
The inference created by these findings is that, even though he was conducting studies in the United States, the respondent was absent from Canada only for this purpose and that his attachment to Canada was through his family home to which he returned when able to do so. The citizenship judge found, therefore, that a sufficient connection exists. In reaching this conclusion, I find no reviewable error.
[9] Respecting the first ground raised by the applicant, being that an error of law has been made, it does appear on the face of the citizenship judge's decision that such is the case. In addition to making the finding of sufficient connection, the citizenship judge found as follows:
| Since his residence days were calculated he has spent the past year in Victoria working for Stress Gen Biotechnologics Corp. Papers have been provided to prove his employment from June 13, 1997 to April 15, 1998 - I am of the opinion that this applicant is an asset to Canada and I believe his last year of employment in a technical job should be considered as residency. |
[10] While this finding might very well be an error in law, I choose not to exercise my discretion to interfere with the decision as a result. I am fully satisfied that, on the evidence of residency up to the date of the citizenship application being made, the citizenship judge did exercise her discretion properly in granting citizenship to the respondent. Therefore, I find the error in law is superfluous, and, therefore, irrelevant.
[11] Accordingly, this application is dismissed.
[12] Awarding costs is within my discretion, and I see no reason to deviate from its usual application. Accordingly, since Mr. Yeung is successful in defending this application, I award costs to him and fix them in the amount of $300.00 payable forthwith by the applicant.
(Sgd.) "Douglas Campbell"
Judge
Vancouver, British Columbia
3 February 1999
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-1256-98
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION
- and -
WING TUNG THOMAS YEUNG
Respondent
PLACE OF HEARING: Vancouver, BC
REASONS FOR ORDER OF CAMPBELL, J.
dated February 03, 1999
APPEARANCES:
Ms. Lori Jane Turner for the Applicant
| Mr. Wing Tung Thomas Yeung on his own behalf |
SOLICITORS OF RECORD:
Mr. Morris Rosenberg for the Applicant
Deputy Attorney General
of Canada
| Mr. Wing Tung Thomas Yeung on his own behalf |
| Victoria, BC |