BETWEEN:
and
AND IMMIGRATION
REASONS FOR ORDER
[1] The Applicant appeals a Citizenship Judge's decision denying her citizenship application because Canada was not where Ms. Chen regularly and customarily lives and because she was considerably short of the minimum 1,095 days of residence stipulated by subsection 5(1) of the Citizenship Act (the "Act").
BACKGROUND
[2] The Applicant and her husband arrived in Canada as landed immigrants from China in March 1999 under the Investor Class. Shortly thereafter they purchased a house in which they continue to live. The Applicant does not have a residence in China. She and her husband began a business, Anfu Enterprises, which is engaged in the exporting of Canadian products to China.
[3] In the Citizenship Judge's decision, the Applicant was found to be absent for 727 days and present in Canada for 733 days. The result is that the Applicant had a shortfall of 362 days of the required 1,095 days under the Act.
[4] The Applicant takes issue with two findings:
1. that her passport shows an entry of November 22, 1999 and this meant that she was in Canada just one month before her first absence from Canada.
2. that the quality of her connections to Canada reflects a person who is still in the process of integrating into Canada.
[5] The Applicant claims that the comment about her absence in November 1999 is factually wrong and that it coloured the judge's overall assessment of the quality of her connection with Canada.
ANALYSIS
Standard of Review
[6] It is now well established that the standard of review regarding residency requirements in citizenship cases is reasonableness simpliciter. See Zeng v. Canada(Minister of Citizenship and Immigration), 2004 FC 1752, [2004] F.C.J. No. 2134 (QL); Rasaei v. Canada (Minister of Citizenship and Immigration), 2004 FC 1688, [2004] F.C.J. No. 2051 (QL); Canada(Minister of Citizenship and Immigration) v. Fu, 2004 FC 60, [2004] F.C.J. No. 88 (QL).
[7] Many of the cases relied upon by the Applicant arose under the previous legislative scheme where an appeal to this Court was a de novo review and before the Supreme Court clarified that there was no "spectrum" of judicial review.
[8] The Applicant also tried to rely on this Court's decision in Canada(Minister of Citizenship and Immigration) v. Xiong, 2004 FC 1129, [2004] F.C.J. No. 1356 (QL) to argue that the standard of review is correctness in respect of the assessment of residency. The decision does not stand for that principle. Xiong merely states that the standard of review is correctness in that a citizenship judge must address (a) whether an applicant has established residence and (b) whether an applicant has maintained that residence. A failure to address either issue is an error of law for which the standard of review is correctness.
Error as to Dates
[9] It is conceded that the judge made an error in describing the first absence. The question is its materiality to the decision.
[10] The Applicant landed in Canada on March 19, 1999 and she left on April 17, 1999 (Citizenship and Immigration Canada Record, p. 44). That was in fact her first absence from Canada.
[11] For purposes of the calculation of the 1,095 days in Canada, time is calculated back four (4) years from the date of the application for citizenship. The relevant date to compute the start of the four years is October 22, 1999. The Applicant did leave Canada on November 22, 1999 - one month after the beginning of the relevant period.
[12] The judge was correct in saying that the Applicant left one month after landing but it is an irrelevant factor.
[13] The judge appears to have misdescribed the first absence in the relevant period, the leaving on November 22, 1999, with the first absence after landing.
[14] However, the judge was correct that she did leave in November 1999 and that absence is relevant to the issue of establishment and maintenance of residence.
[15] I can find no basis for concluding that this minor misdescription had any bearing on the reasonableness of the decision or that it somehow "poisoned" the judge's mind.
Lack of Sufficient Connection
[16] As to this assessment, again I can find nothing unreasonable in the judge's conclusion. The judge considered that the Applicant had purchased a house and other indicia of connection to Canada (credit cards, insurance, ESL certificates, support of neighbour). These were described as passive indicia of residence.
[17] However, the judge also took account of the fact that, inter alia, she was returning to her native country, that her absences were a personal choice, that the absences were regular, substantial and likely to be ongoing. A critical factor was that the Applicant was absent almost a whole year out of the 1,095 days of required residence.
[18] It is evident that the judge took account of all the relevant evidence and made a qualitative assessment. That assessment was reasonable.
[19] Therefore, this appeal will be dismissed with costs.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1047-05
STYLE OF CAUSE: XIAO QING CHEN
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: January 24, 2006
REASONS FOR ORDER: The Honourable Mr. Justice Phelan
APPEARANCES:
| Mr. Lawrence Wong
|
|
| Mr. Scott Nesbitt
|
SOLICITORS OF RECORD:
| WONG PEDERSON LAW OFFICES Barristers & Solicitors Vancouver, British Columbia
|
|
| MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Vancouver, British Columbia
|