Date: 20040115
Docket: T-55-02
Citation: 2004 FC 60
Ottawa, Ontario, January 15, 2004
Present: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
CHIN WAN FU
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an appeal of a decision rendered by a citizenship judge approving the respondent's application for citizenship.
[2] On November 23, 2000, the respondent completed an application for Canadian citizenship.
[3] During the four years preceding his application, the respondent frequently travelled outside Canada. Despite the fact that the respondent was physically present in Canada for only 406 days in the four years preceding the date of his application for citizenship, the Citizenship Judge found that the respondent's life was centralized in Canada; he therefore approved the respondent's application. This decision gave rise to the present appeal by the Minister of Citizenship and Immigration (the "applicant").
[4] The applicant submits that the Citizenship Judge erred in fact and in law in allowing the application since the respondent did not fulfill the residency requirement set out at paragraph 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29 (the "Act").
[5] The respondent has not filed any submissions in this appeal and he did not appear before the Court on October 16, 2003, though he was clearly served at his specified address of service. The matter was adjourned to be heard by videoconference on January 14, 2004. Again, the respondent did not appear before the Court.
[6] While it was established in Lam v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 177 that the standard of review for decisions of Citizenship Judges "is close to the correctness end of the spectrum", I would emphasize that since the Supreme Court's decision in Dr. Q. v. College of Physicians and Surgeons of British Columbia (2003), 223 D.L.R. (4th) 599 at page 613, there are only three standards of review that courts can choose from:
[35] Having considered each of these factors, a reviewing court must settle upon one of three currently recognized standards of review: see Ryan v. Law Society of New Brunswick 2003 SCC 20, released concurrently. Where the balancing of the four factors above suggests considerable deference, the patent unreasonableness standard will be appropriate. Where little or no deference is called for, a correctness standard will suffice. If the balancing of factors suggests a standard of deference somewhere in the middle, the reasonableness simpliciter standard will apply.
[7] In the case at bar, where the court must verify that the Citizenship Judge has applied one of the accepted residency tests to the facts it raises, in my view, a question of mixed fact and law (Director of Investigation and Research v. Southam Inc., [1997] 1 S.C.R. 748). Taking into account that some degree of deference is owed to the specialized knowledge and experience of the Citizenship Judge, I would conclude that the applicable standard of review is that of reasonableness simpliciter.
[8] In the present case, it appears from the Citizenship Judge's decision that he applied the test in Re: Koo, [1993] 1 F.C. 286 to the facts.
[9] In Re Koo, ibid. Reed J. articulated six factors which can help in determining if an applicant has a centralized mode of existence in Canada at paragraph 10:
[...]
(1) was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship?
(2) where are the applicant's immediate family and dependents (and extended family)resident?
(3) does the pattern of physical presence in Canada indicate a returning home or merely visiting the country?
(4) what is the extent of the physical absences - if an applicant is only a few days short of the 1,095-day total it is easier to find deemed residence that if those absences are extensive?
(5) is the physical absence 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 employment abroad?
(6) what is the quality of the connection with Canada: is it more substantial than that which exists with any other country?
[10] The Citizenship Judge found that most of the respondent's trips were for business reasons and that his absences were temporary. However, based on the evidence before him, the Citizenship Judge could not properly conclude that the absences were temporary.
[11] The evidence demonstrates that although his family is in Canada, the respondent was never present in Canada for long periods of time. In four years, he spent a little over a year in Canada, his absence motivated not by temporary work, but by his full-time employment.
[12] The respondent's entries into and exists from the Hong Kong Administrative Region shows a travel pattern which demonstrates that the respondent continues to centralize his mode of living in Hong Kong.
[13] The respondent's situation is not analogous to that of a student who will return home after a temporary period abroad. Nothing, except for the passive indicia identified by the Citizenship Judge (income tax returns, property leases and a few bank statements), demonstrates that the respondent's life was centralized in Canada: in fact, in the last two years he has spent only 88 days here. The evidence establishes a travel pattern that can be characterized as returning to Canada occasionally to visit his family.
[14] I am of the opinion that the respondent does not meet the requirements set out in Koo, supra and as such the Citizenship Judge erred in fact and law in finding that Canada is where the respondent "regularly, normally, and customarily lives" and his decision cannot be said to be reasonable.
[15] For these reasons, the appeal is granted.
ORDER
THIS COURT ORDERS that the appeal is granted.
"Danièle Tremblay-Lamer"
J.C.F.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-55-02
STYLE OF CAUSE: The Minister of Citizenship and Immigration v.
Chin Wan Fu
PLACE OF HEARING: Ottawa, ON
Toronto, ON
DATE OF HEARING: January 14, 2004
REASONS FOR ORDER
AND ORDER OF: TREMBLAY-LAMER J.
APPEARANCES:
Mr. Lorne McClenaghan FOR APPLICANT
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada FOR APPLICANT