PRESENT: The Honourable Mr. Justice Blais
BETWEEN:
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an appeal under subsection 14(5) of the Citizenship Act, R.S.C. 1995, c. C-29 (the Act) from the decision of a citizenship judge dated May 9, 2007, wherein she rejected the applicant’s application for Canadian citizenship.
RELEVANT FACTS
[2] Mr. Dong Bing Ma (the applicant) is a 39-year old Chinese citizen, who is married to a fellow Chinese citizen, Ms. Xiao Qing Chen. They do not have any children or close relatives in Canada.
[3] Both the applicant and his wife came to Canada as landed immigrants from China in March 1999, under the Investor category, and thus are both permanent residents. The applicant set up Anfu Enterprises (Canada) Ltd. in June 1999, to promote Canada’s resources and to develop business ties between China and British Columbia, specifically in the gas sector. As a result of the applicant’s professional occupation, he is required to travel extensively to China.
[4] The applicant filed his application on October 21, 2003. In his revised table of absences, the applicant indicated to the citizenship judge that he was absent from Canada a total of nine hundred and twenty-one (921) days during the four-year period preceding his application. Consequently, the applicant was only present in Canada for five hundred and thirty-nine (539) days during the relevant four-year period. This is less than fifty per cent (50%) of the one thousand ninety-five (1095) days required pursuant to paragraph 5(1)(c) of the Act, which states that an applicant must have accumulated at least three years (1095 days) of residence during the four years preceding his application, in order to be granted citizenship. Consequently, the citizenship judge denied the application for citizenship.
ISSUE
[5] The only issue to be considered in this case is whether the citizenship judge erred in determining that the applicant did not meet the requirements of paragraph 5(1)(c) of the Citizenship Act.
RELEVANT STATUTORY PROVISIONS
Citizenship Act, R.S.C. 1985, c. C-29
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5. (1) The Minister shall grant citizenship to any person who
[…]
(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; |
5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois :
[…]
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;
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STANDARD OF REVIEW
[6] In my opinion, the proper standard of review for this citizenship appeal is reasonableness simpliciter. As Justice Richard Mosley held in Zeng v. Canada (Minister of Citizenship and Immigration), 2004 FC 1752, at paragraphs 9 and 10:
Applying a pragmatic and functional analysis to the review of the decisions of citizenship judges respecting the residency requirement of the Act, several judges of this court have recently concluded that a more appropriate standard would be reasonableness simpliciter: Chen v. Canada (Minister of Citizenship and Immigration) 2004 FC 1693, [2004] F.C.J. No. 2069; Rasaei v. Canada (Minister of Citizenship and Immigration) 2004 FC 1688, [2004] F.C.J. No. 2051; Gunnarson v. Canada (Minister of Citizenship and Immigration) 2004 FC 1592, [2004] F.C.J. No. 1913; Canada (Minister of Citizenship and Immigration) v. Chen 2004 FC 848, [2004] F.C.J. No. 1040; Canada (Minister of Citizenship and Immigration) v. Fu 2004 FC 60, [2004] F.C.J. No. 88; Canada (Minister of Citizenship and Immigration) v. Chang 2003 FC 1472, [2003] F.C.J. No. 1871.
I agree that the question of whether a person has met the residency requirement under the Act is a question of mixed law and fact and that Citizenship Judges are owed some deference by virtue of their special degree of knowledge and experience. Accordingly, I accept that the appropriate standard of review is reasonableness simpliciter and that, as stated by Snider J. in Chen, supra at paragraph 5, "as long as there is a demonstrated understanding of the case law and appreciation of the facts and their application to the statutory test, deference should be shown."
[emphasis added]
ANALYSIS
[7] The applicant suggests that the citizenship judge did not properly review his file and misapprehended the facts. The applicant also argues that it is unclear from the decision what factors or what test the citizenship judge considered in refusing his application.
[8] The respondent for his part argues that, in reaching her decision, the citizenship judge clearly applied the physical presence test for residency established in Re Pourghasemi, [1993] F.C.J. No. 232 (QL). In accordance with the evidence before her, she came to the conclusion that the applicant had not been physically present in Canada for at least three years out of the four years preceding his application for citizenship. As such, the respondent maintains that the citizenship judge did adopt one of the tests for residency endorsed by this Court, and that she did apply that test correctly.
[9] In her decision, the citizenship judge stated:
You were scheduled for a hearing to assess whether you met the residency requirement of the Citizenship Act. You were accompanied by an interpreter. Section 5(1)c of the Act requires that within the four years immediately preceding the date of application, the applicant is to have accumulated at least three years of residence in Canada. That is, at least 1095 days. On your original application you declared absences of 879 days with a physical presence in Canada of 581 days, which does not comply with the residency requirement.
[emphasis added]
[10] In my view, this paragraph shows that the citizenship judge had a good understanding of the statutory residency requirements, as per the decision of Justice Francis Muldoon in Re Pourghasemi, above, and that she appreciated the evidence before her in applying this test, which requires a strict interpretation of the word “residence”, as found at paragraph 5(1)(c) of the Act. In applying the residency test as set out in Re Pourghasemi, above, the citizenship judge must determine whether the applicant has been physically present in Canada for the required number of days. In other words, physical presence in Canada is the essential factor to satisfy the residency requirement as set out in this test.
[11] This test is an objective one, requiring a strict accounting of the number of days that the applicant has been absent from Canada. It is ‘objective’ in the sense that the evidence will, by itself, demonstrate whether a person meets the residency requirements. All that is required on the part of the citizenship judge is to set out the appropriate four-year period, based on the date of the citizenship application, and to subtract all of the days the applicant spent outside Canada during this period, in order to determine if the total number of days that the applicant was physically present in Canada equals the required 1095 days, as per paragraph 5(1)(c) of the Act.
[12] The applicant refers in his submissions to the decision in Sio v. Canada, [1999] F.C.J. No. 422 (QL), where Chief Justice Allan Lutfy said that it was open to a citizenship judge to follow either the approach developed in Re Papadogiorgakis, [1978] 2 F.C. 208 (centralized mode of living) or in Re Pourghasemi, above (strict accounting of physical absences), but not a mixture of the two.
[13] Chief Justice Lutfy stated at paragraph 10 of Sio, above:
This statement reflects those decisions of this Court which follow Papadogiorgakis and allow for temporary absences where the applicant has otherwise centralized a mode of living in Canada. However, the Citizenship Judge also refers extensively to Pourghasemi, Re (1993), 19 Imm. L.R. (2d) 259 (F.C.T.D.), a decision which applies the stricter interpretation of paragraph 5(1)(c) where the prescribed three years is “little enough time in which to become Canadianized”. The simultaneous reference to the conflicting case law in the letter of decision, without further explanation, may reflect a misunderstanding of the legal issues against which she could apply this applicant’s fact circumstances. In my opinion, this constitutes a valid ground of appeal.
[14] Having reviewed the decision of the citizenship judge, I am satisfied that she did not err by mixing up the two schools of thoughts as mentioned in Sio, above, as she did not make simultaneous references to the conflicting case law in her decision, as was the case in Sio, above, which could have indicated a misunderstanding on her part of the legal criteria to be applied to the particular facts of the applicant’s case. In my view, it is clear that the citizenship judge did not misunderstand the law and that she did correctly apply the test of her choosing to the facts of this case, such that this does not constitute a valid ground for appeal.
[15] I do not believe either that she attempted to apply the test set out in Re Koo, [1993] 1 F.C. 286 (T.D.), as she did not seek to determine whether Canada was the place where the applicant regularly, normally or customarily lived, or whether Canada was the place where he had centralized his mode of existence.
[16] It is obvious that there are diverging judicial opinions on the proper approach to the interpretation of the residency requirements pursuant to paragraph 5(1)(c) of the Act, as is reflected in the jurisprudence of this Court. Nevertheless, it is clear that both the strict and the liberal interpretations of this paragraph are acceptable, and that a citizenship judge will not be found to have erred simply for choosing to apply one over the other.
[17] Overall, I am satisfied that the citizenship judge did properly apply the residency test she elected to follow, which was obviously the test set out in Re Pourghasemi, above, and that, in reviewing the applicant’s file, she did not misapprehend the facts, as was alleged by the applicant.
[18] In my view, her reasons demonstrate a good comprehension of the law, and her conclusion that the applicant was not eligible for citizenship at this time was correct, in light of the facts in this case. Based on a strict accounting of the applicant’s physical presence in Canada, it is clear that the applicant did not meet the requirements of the Act due to the number of days he spent outside of the country. Consequently, he could not be granted Canadian citizenship.
[19] For the above reasons, I have no hesitation in concluding that the intervention of this Court is not justified in this case and that, therefore, this appeal should be dismissed.
JUDGMENT
1. The appeal is dismissed.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-973-06
STYLE OF CAUSE: DONG BING MA v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Vancouver, B.C.
APPEARANCES:
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Mr. Lawrence Wong
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Ms. Hilla Aharon
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SOLICITORS OF RECORD:
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Wong Pederson Law Offices Vancouver, BC
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John H. Sims, Q.C. Deputy Attorney General of Canada
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