Federal Court Decisions

Date: 20030415

Docket: T-815-02

Neutral citation: 2003 FCT 435

BETWEEN:

                                                                       CHIN-NA WU

                                                                                                                                                     Applicant

                                                                             - and -

                                                   THE MINISTER OF CITIZENSHIP

                                                                AND IMMIGRATION

                                                                                                                                               Respondent

                                                        REASONS FOR JUDGMENT

LEMIEUX J.

A.        BACKGROUND AND THE CITIZENSHIP JUDGE'S DECISION

[1]                 Chin-Na Wu, born in Taiwan, appeals, pursuant to subsection 14 of the Citizenship Act (the "Act"), the May 3, 2002 decision of Citizenship Judge Paul Gallagher (the "Citizenship Judge") who did not approve her citizenship application because she had not accumulated at least three years of residence in Canada within the four years immediately preceding her application as required by paragraph 5(1)©) of the Act.

[2]                 This appeal raises a familiar issue in citizenship appeals, namely, in what circumstances will absences from Canada still count towards the residence requirements stipulated in the Act.

[3]                 The relevant portions of the Citizenship Judge's decision are:

On 18 April 2002 you appeared before me for a hearing of your application for Canadian Citizenship.

I found that you met all of the requirements for citizenship set out in the Citizenship Act, except the requirement of residence. Under subsection 5(1)©) of the Act, an applicant is required to have accumulated at least three years of residence in Canada within the four years immediately preceding his or her application.

At the hearing, you expressed your hope that your residency days could be explained to the Court's satisfaction. No doubt you are aware that under special circumstances, persons have been deemed to satisfy the intent of the residency requirement despite lengthy physical absences from Canada.

In determining whether you have demonstrated that Canada is the country in which you have centralized your mode of existence, I have considered those questions posed by Justice Reed in rendering the decision Re: Koo (1992), 19 Imm. L.R. (2d) 1, 59 F.T.R. 27, [1993] 1 F.C. 286 (T.D.).

According to our records, and information supplied by you in your application and at your hearing, you arrived in Canada as a landed immigrant on 30 March 1998. You applied for Canadian citizenship on 18 September 2001. Therefore, the period of time that can be counted toward your days of residence is from 30 March 1998 to 18 September 2001, a period of 1267 days.

At this time, you live in Canada with your two children. Your parents are in Canada as visitors, caring for your children and waiting for landed status. I note as well that you first arrived in Canada in 1996 and in fact purchased a home in Canada in 1997, in advance of landed status.

You have provided various indications of residence in Canada. You own a home in Canada, you operated a BC incorporated company, you bank in Canada, you support volunteer organizations in Canada, and you are a Canadian taxpayer. This is helpful information, as it has assisted me in understanding your pattern of life. However. These are passive indicators of residence, that can be established without actually living in Canada over an extended period of time, as is intended by the Citizenship Act.

During the period under consideration you have a possible total of 1267 days of residence. It appears that your actual residence totals 564 and 703 days absence during the relevant period prior to your application for citizenship. This is a shortfall of 531 from the number specified in the Citizenship Act, but, in the three years prior to application for citizenship, you have spent more time in Canada than out of Canada.

These absences were the result of your need to conduct business (selling of Canadian manufactured products) in Taiwan.

Your connections with Canada, aside from your relationships within your family, include you own your home in Canada, you own a Canadian business, your parents are living with you and your children in Canada with the intention of becoming landed immigrants.

Your pattern of life since your arrival in 1998 is one that is split between Taiwan and Canada, with the majority of your time being spent in Taiwan, your place of birth and upbringing..

The primary questions to be dealt with are the degree to which you have centralized your life in Canada and the degree to which the time you have spent in Canada will have allowed you to become Canadian by living and working with Canadians, and becoming part of Canadian society.

Your time in Canada does not demonstrate that you have actually spent enough time in this country to fulfil the intent of the Citizenship Act. At best, your life is split between Canada and Taiwan. Your absences appear to be structural. That is, they appear to be a pattern of life rather than a temporary phenomenon. They are not related to a humanitarian emergency, the temporary assignment of overseas duties to an employee of a Canadian company, a unique educational program, or assignment by the Canadian government to overseas duties.

                                                                            ...

The intent of the Citizenship Act is clear. You have not yet sufficiently centralized your life in Canada, living among Canadians, and becoming part of Canadian society. Accordingly, your application for citizenship is not approved.

I look forward to the time when you will be able meet [sic] the reasonable requirements for citizenship as detailed in the Citizenship Act. At that time, your application will be welcome.

The Parliament of Canada allowed a four year period within which an applicant could establish the three years of residency. This was done in order to allow for some absences during that four year period. In Re: Koo (Bearing File no. T-20-92) Justice B. Reed comments upon the intention of Parliament in setting this period:

The requirement of three year residence within a four year period seems to have been designed to allow for one year's physical absence during the four year period. Certainly the debates of the period suggest that physical presence in Canada for 1095 days was contemplated as a minimum. [emphasis mine]

[4]                 The material facts in this appeal, which does not proceed as a trial de novo but as an application governed by Part V of the Federal Court Rules, 1998 (the "Rules"), are not in dispute.

(1)         The applicant came to Canada in 1996 for the first time as a visitor. She decided she wanted to live in Canada and made an application for permanent residence in the self-employed category.

(2)         Before she was landed on March 30, 1998, she purchased a home in Vancouver and visited Canada several times. On landing she, a single mother, came with her two young twin daughters.

(3)         Upon landing, she did the usual things: obtained a SIN number, credit cards, established bank accounts etc.

(4)         She became a member of the Taiwanese Entrepreneurs and Investors Association. She also incorporated a BC company in May of 1998.

(5)        Her first absence from Canada after landing was May 26, 1998, approximately two months after landing with her children. On that first trip, she obtained contracts from three Taiwanese companies to be their consultant.

(6)        All her absences have been for business purposes - selling Canadian products in Taiwan.

[5]                 Her absences from Canada were as follows:

[6]                 The respondent pointed out slight corrections to the Citizenship Judge's calculation of presences and absences. The correct figures are: 707 days absent; 558 days present and 537 days shortfall.

B.        ANALYSIS

(I)        Standard of review

[7]                 The standard of review by this Court of decisions made by Citizenship Judges has been settled by Justice Lutfy (now Associate Chief Justice) in Lam v. The Minister of Citizenship and Immigration, [1999] F.C.J. No. 410, where he stated at paragraph 33:

The appropriate standard, in these circumstances, is one close to the correctness end of the spectrum.

[8]                 He added:

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)©), 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... .

[9]                 In Lam, supra, Justice Lutfy found two errors in the decision of the Citizenship Judge. First, he found the Citizenship Judge did not appear to have focussed on the circumstances of the applicant's presence in Canada, prior to joining her husband in China in February 1996. In other words, he made no finding whether the applicant established herself in Canada.

[10]            Secondly, he found the Citizenship Judge failed to apply the criteria in Koo, supra, in his assessment of the facts since the information before the Citizenship Judge clearly established the temporary nature of her husband's assignment outside of Canada.

(ii)        The test in Koo, supra

[11]            The Citizenship Judge purported to apply the test formulated by Justice Reed in Re Koo, supra, [1993] 1 F.C. 286. Her decision is summarized at paragraph 10 of her reasons as follows:

¶ 10 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 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 than 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? [emphasis mine]

(iii)       Conclusions

[12]            In my view, there are several reasons why the decision of the Citizenship Judge must be set aside.

[13]            First, the Citizenship Judge failed to consider a necessary step in the residency analysis. As Justice Layden-Stevenson noted in Ahmed v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1415, "there exists a long line of authority from this Court wherein it has been determined that to meet the requirements of the Citizenship Act, residence must first be established and then it must be maintained". I ruled in a similar manner in Re Kong, [1999] F.C.J. No. 665, where I stated at paragraph 39:

¶ 39 To be successful in this appeal, Mr. Ng had to satisfy me:

(a) first, he had established a centralized mode of living in Canada before he went back to Hong Kong to study and to work for his father's firm;

(b) secondly, he maintained that centralized mode of living in Canada during those absences.

[14]            As I see it, the Citizenship Judge had an obligation to consider whether the applicant, before her first absence after landing, when she went to Taiwan on business for fourteen days on May 26, 1998, had established a centralized mode of living in Canada and, in this perspective, had to consider the fact she had purchased a house in 1997, before landing and had visited Canada several times since her first visit in 1995. Immediately upon landing, she moved into her residence with her two young children and enrolled them in daycare. The Citizenship Judge also had to consider that she landed as a self-employed person and immediately upon landing incorporated a company and began taking steps to grow the business so to speak. The Citizenship Judge had to consider what caused her absences.

[15]            Second, as Justice Dubé put it in Re Banerjee, [1994] F.C.J. No. 1360 at paragraph 10:

¶ 10 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. [emphasis mine]

I find fault in the Citizenship Judge's decision that he did not make any assessment of the quality of the applicant's connection to Canada and, in effect, did not come to grips with factor 6 underlying the Koo test, i.e., whether the quality of the applicant's connection with Canada is more substantial than that which exists with any other country.

[16]            Third, the Citizenship Judge ignored evidence showing the applicant's maintenance of a centralized mode of living in Canada after her business start-up and her absences. The applicant adduced evidence consisting of pictures and letters of friends, business acquaintances and neighbours, with respect to her social life in Canada. She also produced evidence she is taking courses, is an active participant in a health club and belongs to the Taiwanese Entrepreneurs and Investors Association where she is an active member.

[17]            Proof he ignored these facts is revealed at page 23 of the certified record. The Citizenship Judge crossed out in the letter form that is apparently used by Citizenship Judges to draft their reasons, the space to describe the activities and relationships of the applicant in Canada.

[18]            Lastly, the Koo test does not simply reside in the answers to the five questions which Justice Reed posed. The Koo test, in my view, calls for a single determination, taking into account all relevant facts. That determination is whether Canada is the place where the applicant regularly, normally or customarily lives or, as Justice Reed put it another way, whether Canada is the country in which he or she has centralized his or her mode of existence.

[19]            The Citizenship Judge erred when he failed to weigh the evidence before him in order to answer that question.

[20]            It is true the Citizenship Judge did recite some facts but an enumeration of facts is not enough. He had to weigh those facts and come to a determination. Having said this, I agree with the respondent the Citizenship Judge could give greater weight to the applicant's physical absences than any other factor but he could not conclude that physical presence in Canada is the only relevant criteria.

[21]            As a remedy, the applicant asks that I make the decision which the Citizenship Judge should have made - approve her application. I decline to do this on the reasoning of Justice Reed's decision in Ma v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 288, where she wrote at paragraph 10:

¶ 10 I am not persuaded that this is my only recourse, nor that I am without authority in a case such as the present to quash the decision below and refer the application back for rehearing. Inherent in an appeal process is the authority to refer the matter back for rehearing. Indeed, even under the old de novo hearing procedure, referral back for rehearing was ordered where a citizenship judge failed to consider some matter that should have been considered: see In the Matter of Moa-Song Chang, (T-1183-97, February 5, 1998).

[22]            For the foregoing reasons, this appeal is allowed and the matter is remitted back for rehearing by a different Citizenship Judge.

"François Lemieux"

                                                                                                                                                                                                                    

                                                                                                                             J U D G E                   

OTTAWA, ONTARIO

APRIL 15, 2003

                                                   FEDERAL COURT OF CANADA

                                                                    TRIAL DIVISION

                             NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                            T-815-02

STYLE OF CAUSE:                        Chin-Na Wu v. Minister of Citizenship & Immigration

PLACE OF HEARING:                   Vancouver, British Columbia

DATE OF HEARING:                      February 19, 2003

REASONS FOR JUDGMENT:    Lemieux, J.

DATED:                                               April 15, 2003

APPEARANCES:

Mr. Andrew Wlodyka                                                                 FOR APPELLANT

Mr. Peter Bell                                                                               FOR RESPONDENT

SOLICITORS OF RECORD:

Lowe & Company                                                                       FOR APPELLANT

Vancouver, British Columbia

Mr. Morris Rosenberg                                                               FOR RESPONDENT

Deputy Attorney General of Canada