Date: 20031216
Docket: T-1574-01
Citation: 2003 FC 1472
Ottawa, Ontario, December 16, 2003
Present: The Honourable Mr. Justice MacKay
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
and
YUN HO CHANG
Respondent
REASONS FOR ORDER AND ORDER
[1] The Minister of Citizenship and Immigration appeals a decision dated July 10, 2001 whereby the respondent, Mr. Yun Ho Chang, was found to have met the requirements for Canadian citizenship. The appeal, heard by way of judicial review, concerns the finding by a Citizenship Judge that the respondent had met the requirements for residence under paragraph 5(1)(c) of the Citizenship Act, R.C.S. 1985, c. C-29 (the Act). The provision requires that a permanent resident, within the four years immediately preceding the date of his application for citizenship, shall accumulate at least three years of residence in Canada.
[2] The respondent, a citizen of Taiwan, acquired permanent residence in Canada in July 1992 when he arrived in Canada with his wife and two children. Shortly thereafter he and his wife purchased a residence in Burnaby, where the respondent's wife and his two children have since lived and to which he returns when he is in Canada. The children have entered and continued school in Canada. He and his wife have acquired an investment property, and they have maintained a bank account, in Canada.
[3] The respondent owns and operates a business in Taiwan. He has not been employed in Canada. The record is not clear on his presence in or absence from Canada except for the four years preceding his application for citizenship in February 2001. In those four years he was away from Canada for 1176 days and present in Canada for 284 days. Thus, he was absent from Canada for approximately three and a half years in the four year period, and was more than 880 days short of the required three year residence in Canada.
[4] In assessing his application for citizenship, the Judge noted the number of days absent. In his reasons he applied the test for residence in Canada established by Madam Justice Reed in Re: Koo, [1993] 1 F.C. 286 (T.D.), (1992), 19 Imm. L.R. (2d) 1, 59 F.T.R. 27. He concluded that "the applicant has demonstrated that Canada is the country in which he has centralized his mode of existence."
[5] Counsel for both parties rely on the decision in Re: Koo, and that in Lam v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 410 (F.C.T.D.). In the latter case, Mr. Justice Lutfy, as he then was, concluded that deference should be paid to the decision of a Citizenship Judge where he or she appropriately applied an accepted test for considering residence. The respondent urges that was done here and deference ought to be given to the decision of the Citizenship Judge. The applicant Minister urges that in applying the test from Re: Koo, the Judge did not do so properly and ignored certain facts. Both Counsel refer to the standard of review discussed by Lutfy J. in Lam, i.e. on the basis of reasonableness but near the standard of correctness.
[6] On the basis of Lam the correctness standard of review was applied, in relation to a decision concerning the application of paragraph 5(1)(c) of the Act, in Lin v. Minister of Citizenship and Immigration, [2002] F.C.J. No. 492 (F.C.T.D.). That same standard, on different reasoning, was applied in Chen v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1693 (F.C.T.D.).
[7] In my view, in light of the decision of the Supreme Court of Canada in Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 S.C.C. 19, the appropriate standard of review in this case is reasonableness simpliciter, but without significant deference to the decision of the Citizenship Judge. That standard arises from the assessment of the circumstances including the provision in the Act for an appeal from the decision of a Citizenship Judge, the nature of the issue to be resolved in a question of mixed fact and law in which the application of the law is more important than the determination of facts, and the comparative expertise of this Court, when compared with that of the Citizenship Judge and in resolving issues where the emphasis is on the low.
[8] In this case the Citizenship Judge noted that the applicant's wife and two children live in Burnaby and the applicant returns there periodically after extensive trips to Taiwan for business purposes. He noted the days present and the days absent from Canada, noted that the respondent was the manager/owner of a ready mix concrete factory in Taiwan and had never worked in Canada, but since "he returns to Vancouver and his family regularly, his absence appears to be a temporary one". In his view, the quality of connection of the applicant's family with Canada is substantial. Bearing in mind the applicant's family lives in Burnaby and his absences are "entirely caused by business interests in Taiwan" the Judge, applying the test of Koo concludes the applicant "has demonstrated that Canada is the country in which he has centralized his mode of existence".
[9] In my view that conclusion is not supportable without determining when the applicant's mode of existence was centred in Canada, i.e. when he became resident in Canada. The decision in question does not consider the applicant's connection with Canada, as distinct from that of his family. It is as though because his family was resident in Canada, he too was resident. If it were determined that he had established residence in Canada before, or at some point within the four year period before his application for citizenship, then the absences from Canada after the date determined would not detract from his period of residence. Here no finding of that sort was made.
[10] In the circumstances, I conclude that the decision in question warrants little deference from this Court. It does not assess the respondent's own connection with Canada and it does not determine when he established residence in Canada. It does not meet the standard of reasonableness in light of all the circumstances.
[11] For these reasons, the appeal of the Minister is allowed. I decline to order that the respondent's application for citizenship be refused, as requested by the Minister. The matter is referred to the Citizenship Court for consideration by another Judge if the applicant seeks reconsideration of his application for citizenship. Of course, it is open to the respondent to file a further application for citizenship.
ORDER
THIS COURT ORDERS that
[1] The appeal of the Minister is allowed.
[2] The decision of the Citizenship Court dated July 10, 2001, with reference to the respondent, is set aside.
[3] The respondent's application for Canadian citizenship is referred to the Citizenship Court for reconsideration, if the applicant seeks that.
"W. Andrew MacKay"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1574-01
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION
and
YUN HO CHANG
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: November 6, 2003
REASONS FOR ORDER
AND ORDER OF THE HONOURABLE MR. JUSTICE W. ANDREW MacKAY
APPEARANCES:
Mr. Peter Bell FOR APPLICANT
Mr. Peter Cheung FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Morris Rosenberg
Deputy Attorney General of Canada
Department of Justice
840 Howe Street, Suite 900
Vancouver, British Columbia
V6Z 2S9 FOR APPLICANT
Mr. Peter W.K. Cheung
Jang Cheung Lee Chu Law Corp.
Barristers and Solicitors
700 - 5951 No. 3 Road
Richmond, British Columbia
V6X 2E3 FOR RESPONDENT