Date: 20030904
Docket: T-1099-02
Citation: 2003 FC 1026
Vancouver, British Columbia, Thursday, the 4th day of September, 2003
Present: THE HONOURABLE JUSTICE GAUTHIER
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Appellant
- and -
TON TEH HUANG
Respondent
REASONS FOR ORDER AND ORDER
[1] The Minister appeals the decision of Citizenship Judge Gallagher, who approved Mr. Huang's application for citizenship on May 30, 2002.
FACTS
[2] Mr. Huang was landed in Canada on July 14, 1994; he was accompanied by his family. He applied for citizenship on September 20, 2001. By then, his wife and three children had already obtained their Canadian citizenship. In the four years preceding Mr. Huang's application, he was present in Canada for 423 days and absent for 1037 days.
[3] In coming to his decision, Citizenship Judge Gallagher used a printed form which states that he applied the "centralized mode of existence test" and considered the six questions in Re Koo, [1993] 1 F.C. 286 (T.D.). This form also reproduces those six questions and from the notes under each of them, it appears that Mr. Huang had been "regularly" absent from Canada since his landing in 1994 due to the following factors: i) having ill and elderly parents; ii) assisting with his wife's real estate business; and iii) dealing with his international architecture business. There is no specific mention of whether factors ii) and iii) were of a temporary nature. There are no notes describing the connection of this applicant with any other country such as Taiwan where his parents live and where he carries on a large portion of his commercial activities. However, from the notes in the section entitled "Decision", it appears that Citizenship Judge Gallagher considered that Mr. Huang had no connection to any other country.
[4] In any event, in the Decision section, Citizenship Judge Gallagher states:
The applicant has resided in Canada since 1994, but has been out of Canada a considerable amount of time for business and family reasons, in and prior to the 4 year period prior to application for citizenship. However, taking the time prior to the 4 year period at ½ value, and considering the time since application, the applicant has been in Canada more than the required 1095 days according to my calculations, confirmed by the appellant.
[My emphasis]
[5] He also notes that:
On all other grounds, the applicant is very strongly connected to Canada (and to no other country) through family and secondary indicators. Becoming a citizen will also enable the applicant to work (as an architect) in Canada, and not be restricted to work as an architect in Taiwan and mainland China. Every indication is that the applicant will be an exemplary citizen.
ISSUES
[6] The appellant raises two issues in this appeal: a) did the Citizenship Judge err in applying the test in Re Koo and; b) did he err by considering irrelevant factors, such as that Mr. Huang could work as an architect in Canada after becoming a Canadian citizen?
ANALYSIS
[7] In Canada (Minister of Citizenship and Immigration) v. Wu, 2002 FCT 579, [2002] F.C.J. No. 765 (Q.L.), (see para. 21), Teitelbaum J. stated that the Federal Court Trial Division must verify that the citizenship judge has correctly applied one of the accepted residency tests. Findings of fact should not be disturbed unless they are clearly wrong or made in a perverse or capricious manner (see para. 21). I shall apply this standard of review.
[8] The appellant submits that the citizenship judge erred in applying the test in Re Koo, supra, by misapplying the residency formula specified in subsection 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29 (the "Act"). That subsection provides:
| 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) 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_:
a) en fait la demande;
b) est âgée d'au moins dix-huit ans;
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;
[My emphasis]
|
[9] The wording of subsection 5(1)(c) indicates that the days of residence should be calculated in the manner stated in (ii), based on the four-years preceding the application. However, as noted above, the judge included in his calculation time prior to the four-year period awarding him half-days for that time, as well as time for the period after the filing of his application[1]. This clearly constitutes a misapplication of section 5(1)(c) of the Act as well as a misunderstanding of the test set out in Re Koo, supra.
[10] In effect, as it appears from Citizenship Judge Gallagher's notes under question 4 ["What is the extent of the physical presence? (Number of days away from Canada VS number of days present in Canada)], Citizenship Judge Gallagher failed to appreciate that the physical presence referred to in Re Koo, supra, is the period set out in section 5(1)(c) of the Act.
[11] Moreover, it is not clear to me whether Citizenship Judge Gallagher did not blend the "centralized mode of existence test" with the "physical presence test" favoured by some judges of this Court (see, for example, Re Pourghasemi, [1993] F.C.J. No. 232).
[12] Citizenship Judge Gallagher certainly appears to justify his approval, at least in part, on the basis that Mr. Huang's was physically present in Canada for the required 1095 days. I agree with Mr. Huang that Citizenship Judge Gallagher also relied on his strong connection with Canada. But, despite the able argument of Mr. Huang's counsel, I cannot agree that therefore the error with respect to the required physical presence, becomes immaterial to the decision.
[13] If the existence of a strong connection evidenced by the ownership of a house where one's wife and children live, and by the other standard "secondary indicators" (payment of taxes, driver's licence, charitable contributions and knowledge of Canada), was in itself sufficient to fulfill the requirement of subsection 5(1)(c) of the Act, without having due regard to the actual presence in Canada and the nature, cause and extent of the absences during the period set out in the Act, there would be no need for the other questions set out in Re Koo and in the form used by Citizenship Judge Gallagher.
[14] In Re Koo, the applicant had a house in Vancouver where his wife lived. He had several members of his family in Canada including an aunt, a cousin, a mother-in-law and a younger brother. He paid taxes and had all the other standard indicia of residence such as club memberships, driver's licence etc. Still, his application failed. This shows the importance of the other questions set out by Justice Reed and the need for citizenship judges to make a full and complete inquiry and analysis of the time spent in Canada and abroad during the period set out in the Act[2]. To conclude otherwise would be to stray not only from the "centralized mode of existence test" but also from the clear wording of the Act itself. This is simply unacceptable.
[15] Here, Mr. Huang falls very very short of the required 1095 days. There is no indication that his absences were getting shorter with time and that they were caused by a temporary situation.
[16] The error is therefore at the heart of Citizenship Judge Gallagher's decision and the appeal must be allowed.
ORDER
THIS COURT ORDERS:
The appeal is allowed.
(Sgd.) "Johanne Gauthier"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1099-02
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION v. TON TEH HUANG
PLACE OF HEARING: Vancouver, BC.
DATE OF HEARING: September 3, 2003
REASONS FOR ORDER AND ORDER:GAUTHIER J.
DATED: September 4, 2003
APPEARANCES:
Mr. Peter Bell FOR APPELLANT
Mr. James Hu FOR RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada FOR APPELLANT
Mr. James Hu FOR RESPONDENT
Remedios & Co.
Vancouver, BC