Date: 20000627
Docket: T-1284-99
Ottawa, Ontario, this 27th day of June, 2000
| PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O"KEEFE |
BETWEEN:
GUOHUA WANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O"KEEFE J.
[1] This is an appeal by Guohua Wang ("applicant"), pursuant to subsection 14(5) of the Citizenship Act , 1974-75-76, c.108 (the "Act") in respect of the decision of Citizenship Judge Doreen Wicks dated July 2, 1999, wherein she refused the applicant"s application for citizenship. She refused his application for citizenship on the basis that he did not satisfy the residency requirements of paragraph 5(1)(c) of the Act.
[2] The applicant became a permanent resident of Canada on December 26, 1994. After his arrival in Canada, he leased a home in Toronto and resided in Canada from the date of his landing until October 14, 1996.
[3] During most of the period from December, 1994 to October 14, 1996, the applicant managed a restaurant and bar on Dundas Street East in Toronto.
[4] In August, 1996 the applicant, who has a Ph.D. in systems engineering, obtained a position with a Canadian computer company, Platform Computing, located at North York, Ontario. The applicant"s new employer assigned him the task of setting up Platform Software (Beijing) Co. Ltd., a wholly owned subsidiary of Platform Computing Corporation, in China. As a result of this assignment, the applicant was required to be present in China and thus, was absent from Canada for the period October 14, 1996 to April 4, 1997 and May 4, 1997 to December 12, 1997. The absences were strictly for employment purposes and the applicant obtained a returning resident permit each time he left Canada. When the applicant was in China for his employer, his salary was paid directly to his bank account in Canada.
[5] When the applicant was absent from Canada, he maintained his residence and maintained constant contact with his wife and daughter who remained in Canada. The applicant"s wife and daughter landed in Canada with the applicant and became Canadian citizens on July 29, 1999.
[6] The applicant has bank accounts in Canada, filed Canadian income tax returns, maintained OHIP coverage, kept a social insurance card, maintained a valid driver"s license and purchased life insurance. All of these items were maintained when he was absent from Canada.
[7] The applicant has stated that the Citizenship Judge thought that he was from Hong Kong when in fact he was from the People"s Republic of China. The applicant has also noted the following items about the hearing:
| 1. Citizenship Judge Wicks, at first, could not find the residence questionnaire. |
| 2. Citizenship Judge Wicks left the hearing to deal with another matter and she also suggested that the lease of his residence was not standard. |
[8] Issues
| 1. What is the proper standard of review in a citizenship appeal under the Citizenship Act? |
| 2. Did the Citizenship Judge err in law in her interpretation of subsection 5(c) of the Citizenship Act? |
| 3. Did the Citizenship Judge deny the applicant procedural fairness or natural justice by failing to familiarize herself with the facts of the application and by misconstruing the evidence? |
Law
| [9] Subsection 5(1) of the Citizenship Act states: |
| 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. |
| 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) 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, 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 d'expulsion et n'est pas visée par une déclaration du gouverneur en conseil faite en application de l'article 20. |
| Analysis and Decision |
| [10] Issue 1 |
| What is the proper standard of review in a citizenship appeal under the Citizenship Act? |
| Lutfy J. (as he then was) in Lam v. Canada (1999) 164 F.T.R. 177 (F.C.T.D.) stated at pages 187-188: |
| In this instance, the objective factors relating to the role of the citizenship judge in determining the residency requirement call for greater curial deference than the standard of correctness. As a mixed question of law and fact, the standard, again in objective terms, may be as far down the spectrum as reasonableness "simpliciter". However, I hesitate to reach such a definitive conclusion in the current state of flux. |
| To repeat, this citizenship appeal is being heard during a unique period of likely transition. In the words of Justice Muldoon in Harry, Re, "[t]he judicial administration of [this statutory test] . . . has been vexed for two decades". [see footnote 40] The legal test is confused by the conflicting jurisprudence. The appeal now proceeds as an application. There is no evidence that citizenship judges have conducted their proceedings differently since the introduction of this court"s new Rules . The absence of a record disclosing the oral information shared with the citizenship judge is more problematic with the repeal of the trial de novo. The decisions under appeal do not always make clear which of this court"s conflicting case law is being followed. Parliament"s consideration of Bill C-63 may bring significant changes to the examination and determination of citizenship applications and the review of the resulting decisions. In short, even though the objective factors might dictate more deference to the decisions of citizenship judges, this is neither the time nor the environment in which to depart radically from the current 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. |
| [11] The decision in Lam, supra, puts the standard of review for decisions of |
| citizenship judges somewhere between correctness and reasonableness simplicter, but closer towards the correctness end of the spectrum. Even if the standard is one of reasonableness simpliciter for matters of mixed fact and law (see Canada (Director of Investigation and Research v. Southam Inc., (1997) 1 S.C.R. 748) it will not be important for the disposition of this application. I might add that it is generally accepted that tribunals must be correct in their interpretation of the law. |
| [12] Issue 2 |
| Did the Citizenship Judge err in law in her interpretation of subsection 5(c) of the Citizenship Act? |
| Paragraph 5(1)(c) of the Act requires the applicant to have accumulated at least three years (1,095 days) of residence in Canada within the four years immediately preceding the date of his application for citizenship. This applicant was present in Canada for 707 days during the relevant time period. |
| [13] The jurisprudence of this Court allows, in certain situations, time absent from |
| Canada to count towards the 1,095 days of residence required by paragraph 5(1)(c) of the Act. The applicant must have centralized his or her mode of living in Canada prior to the departures and must have maintained this connection with Canada (see Re Papadogiorgakis [1978] 2 F.C. 208 (F.C.A.)). Madame Justice Reed in Koo (Re) (1993) 1 F.C. 286 (F.C.T.D.) stated at pages 293-294: |
| The conclusion I draw from the jurisprudence is that the test is whether it can be said that Canada is the place where the applicant "regularly, normally or customarily lives". Another formulation of the same test is whether Canada is the country in which he or she has centralized his or her mode of existence. Questions that can be asked which assist in such a determination are: |
(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 dependants (and extended family) resident?
(3) does the pattern of physical presence in Canada indicate a returning home 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 than if those absences are extensive?
(5) is the physical absence caused by a clearly temporary situation such as employment as a missionary aborad, following a course of study abroad as a student, accepting temporary employment abroad, accompanying a spouse who has accepted temporary employment abroad?
(6) what is the quality of the connection with Canada: is it more substantial than that which exists with any other country?
| [14] I will now apply the evidence in this case to each of the factors listed by Madame |
Justice Reed in Koo (Re), ibid to assist me in determining the residency status of the applicant:
| 1. The applicant was in Canada approximately one year and ten months prior to his first absence. In that time, he managed a restaurant in Toronto. |
| 2. The applicant"s wife and immediate family are and were present in Canada since their arrival in Canada with the applicant. Both are Canadian citizens. The daughter attends public school in Toronto and his wife previously worked for Husky and now for Air Canada. |
| 3. The applicant"s activity indicates that he is returning home not just visiting. His home is in Canada, he has bank accounts in Canada, he works for a Canadian company, he pays Canadian income tax, he has a Canadian driver"s licence, a S.I.N. and OHIP coverage. He also had his pay cheque deposited to his Canadian bank account. |
| 4. The applicant was only absent for two periods of time totalling 394 days, thus the shortfall from the 1,095 days required is not that great. |
| 5. The applicant"s absences were clearly only of a temporary nature as he was required by his employer to set up the company"s operations in Beijing, China. |
| 6. The applicant"s only connection is with Canada. His wife and daughter are here. His employer is here in Canada. He ran a restaurant in Canada. He has no connection with any other country. |
| [15] The Citizenship Judge in her ruling simply said: |
. . . after having considered the evidence that I received both by way of testimony and documentation, I could not find that you have established a residence in Canada by virtue of a centralized mode of living in Canada in the four years preceding your application for Canadian citizenship.
| [16] I am of the view that the Citizenship Judge made a reviewable error in coming to |
this conclusion. My review in paragraph 14 of this decision of the evidence as it relates to the factors in Koo (Re), ibid, leads me to the conclusion that the applicant had established a centralized mode of living in Canada prior to his first departure and that he maintained that connection. I am of the further view that the Citizenship Judge"s decision is reviewable using either the "reasonableness simpliciter" standard or the "close to correctness" test stated by Lutfy J. (as he then was) in Lam v. Canada, supra.
| [17] Therefore, since the applicant had centralized his mode of living in Canada prior |
to his first absence from Canada and maintained that connection, periods of absence can be counted towards the required 1,095 days of residence. Thus, I find that the applicant has met the residency requirements of paragraph 5(1)(c) of the Act.
| [18] Issue 3 |
Did the Citizenship Judge deny the applicant procedural fairness or natural justice by failing to familiarize herself with the facts of the application and by misconstruing the evidence?
I am of the opinion that neither the temporary failure to locate the residency questionnaire, the absence from the hearing room to attend to another matter , the questioning about the lease nor the references to the applicant being from Hong Kong constitute a denial of procedural fairness or a denial of natural justice.
| [19] The appeal of the applicant is allowed and the Minister should exercise her |
discretion favourably and grant the applicant Canadian citizenship.
| [20] The applicant sought costs in this case, however, I am not prepared to grant costs |
in the circumstances of this case. There were not any reasons shown for an award of costs.
ORDER
| For the above reasons: |
| [21] IT IS ORDERED that the appeal be allowed. |
| [22] IT IS FURTHER ORDERED that there shall be no award of costs. |
"John A. O"Keefe"
J.F.C.C.
Ottawa, Ontario
June 27, 2000