Date: 20050518
Docket: T-1985-04
Citation: 2005 FC 719
BETWEEN:
WEI WANG
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
de MONTIGNY J.
[1] This is an application for an appeal, under s. 21 of the Federal Courts Act and s. 14(5) of the Citizenship Act, of the decision rendered by Citizenship Judge Rita Cox (the "Citizenship Judge") on September 10, 2004. The Applicant's application for Canadian citizenship was dismissed, on the ground that he did not meet the requirements set out in s. 5(1)(c) and (d) of the Citizenship Act.
[2] Mr. Wang is the husband of Mrs. Xu, whose appeal of the decision of the Citizenship Judge with respect to her application for Canadian citizenship is dealt with in case T-1986-04.
Background
[3] The relevant facts are recited in the reasons that accompany my order in Mrs. Xu's appeal, and need not be repeated here. Suffice it to say that the Applicant claims that he was physically present in Canada for 687 days, while the Citizenship Judge found that he really was in Canada for 600 days. This leaves him between 408 and 495 days short of the 1095 day requirement, as enunciated in s. 5(1)(c) of the Citizenship Act. The Applicant spent all of the time he was not present in Canada on business trips in China.
[4] The Applicant, like his wife, held a returning resident permit from 18 August 1999 to 17 August 2001.
Decision under review
[5] The Citizenship Judge found that the applicant did not meet the requirement of s. 5(1)(c) of the Citizenship Act, for essentially the same reasons as for his wife's case. She applied the test enunciated in Re Koo ([1993] 1 C.F. 286) and found that the applicant's quality of connection to China was more substantial that the quality of his connection to Canada, due mainly to the applicant's substantial absences from Canada, his status as the General Manager of Royal Business Systems in Shangai, and despite impressive passive indicators of residence put forth by the applicant.
[6] In addition, the Citizenship Judge also noted that the Applicant did not have an adequate knowledge of English or French, as required by s. 5(1)(d) of the citizenship Act.
[7] Finally, the Citizenship Judge decided that this case did not warrant making a favourable recommendation to the Minister for the exercise of his discretion under s. 5(4) of the Act. She considered the letters of reference from a government official and a businessman, as well as his valuable contribution to Team Canada missions, but nevertheless came to the conclusion that the circumstances of his case did not represent a situation constituting an "exceptional value to Canada" warranting a favourable recommendation for a grant of citizenship.
Issue
[8] As in the companion case of his wife, the issue for this Court is the following: Did the Citizenship Judge err in finding that the Applicant did not meet the residency and the language requirements prescribed under paragraph 5(1)(c) and (d) of the Citizenship Act?
Statutory provision
[9] Section 5(1) of the Citizenship Act reads as follows:
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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) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, and has, within the four years immediately preceding the date of his or her 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 removal order and is not the subject of a declaration by the Governor in Council made pursuant to section 20.
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5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois_: a) en fait la demande; b) est âgée d'au moins dix-huit ans; c) est un résident permanent au sens du paragraphe 2(1) de la Loi sur l'immigration et la protection des réfugiés et a, dans les quatre ans qui ont précédé la date de sa demande, résidé au Canada pendant au moins trois ans en tout, la durée de sa résidence étant calculée de la manière suivante_: (i) un demi-jour pour chaque jour de résidence au Canada avant son admission à titre de résident permanent,
(ii) un jour pour chaque jour de résidence au Canada après son admission à titre de résident permanent;
d) a une connaissance suffisante de l'une des langues officielles du Canada; e) a une connaissance suffisante du Canada et des responsabilités et avantages conférés par la citoyenneté; f) n'est pas sous le coup d'une mesure de renvoi et n'est pas visée par une déclaration du gouverneur en conseil faite en application de l'article 20.
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Standard of review
[10] It is not disputed as between counsels for the Applicant and for the Respondent that the question of whether a person has met the residency requirement under the Citizenship Act is a question of mixed law and fact. As such, the appropriate standard of review to be applied in the present case is that of reasonableness simpliciter. Bearing in mind that some deference is owed to the specialized knowledge and experience of the Citizenship Judge, her decision should stand provided that it demonstrates an understanding of the case law and an appreciation of the facts and their application to the statutory test. Chen v. Canada, [2004] F.C.J. No. 2069; Rasaei v. Canada, [2004] F.C.J. No. 2051; Gunnarsson v. Canada, [2004] F.C.J. No. 1913; Canada v. Chen, [2004] F.C.J. No. 1040; Zeng v. Canada, [2004] F.C.J. No. 2134; Canada v. Chang, [2003] F.C.J. No. 1871; Canada v. Fu, [2004] F.C.J. No. 88.
Analysis
[11] Much of the analysis made in the context of the Applicant's wife's appeal is equally applicable here. Much as she did in assessing Mrs. Xu's application, the Citizenship Judge considered the quality of the Applicant's connection with Canada, the pattern and extent of his physical presence in Canada, the reasons for his absence, and the residency of his immediate family. She did not simply rely on the fact that the Applicant had failed to be physically present in Canada for the required number of days before finding him not to have established that he "regularly, normally or customarily" lives in this country.
[12] It was open to the Citizenship Judge to choose what approach she wishes to take in assessing the residency requirement. She chose to apply the test elaborated in Re Koo. The only question for the Federal Court is whether that test was properly applied; in the present case, the Applicant has failed to demonstrate that the Citizenship Judge failed in her application of that approach.
[13] I have no doubt that the Applicant spent a considerable amount of time in China essentially to build his business, and that such extensive traveling is increasingly becoming a pattern of life for many business people in a global economy. But an Applicant for Canadian citizenship does not have this freedom that Canadian citizens enjoy, because of the provisions of s. 5(1) of the Citizenship Act (Re Leung, (1991) 42 F.T.R. 149, at p. 154).
[14] As for the Citizenship Judge's finding that this was not a case involving circumstances of exceptional value to Canada that would warrant a favourable recommendation for a grant of citizenship, it was a perfectly legitimate conclusion and I would be loath to interfere with the exercise of her discretion in this respect.
[15] Be that as it may, the Applicant's appeal must fail because the Citizenship Judge's language requirement findings were reasonable and have not been challenged. Counsel for the Applicant conceded at the hearing of this application that she had no further evidence to submit in order to demonstrate the Applicant's proficiency in one of the two official languages of this country.
[16] Since the requirements set out in s. 5(1) of the Citizenship Act are conjunctive and must all be met, this would be a sufficient reason to dismiss the Applicant's citizenship appeal.
[17] In conclusion, I have not been convinced that the Citizenship Judge erred in her application of the Re Koo test, nor can I find that her decision in this case was unreasonable.
[18] I therefore conclude that the intervention of this Court would not be warranted. Having said this, I have no doubt that Mr. Wang and his wife, Mrs. Xu, will in time become valuable citizens of our country, and I sincerely hope that they will reapply for citizenship once they have satisfied the requirements of the Citizenship Act.
(s) "Yves de Montigny"
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: Wei Wang
v.
The Minister of Citizenship and Immigration
REASONS FOR ORDER: de Montigny J.
APPEARANCES:
Charlotte Janssen For the Applicant
John Provert For the Respondent
SOLICITORS OF RECORD:
Charlotte Janssen
Toronto, Ontario For the Applicant
Mr.John H. Sims, Q.C.
Deputy Attorney General of Canada For the Respondent