Date: 20061220
Docket: T-516-06
Citation: 2006 FC 1536
Ottawa,
Ontario, this 20th day of December, 2006
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
MING
ZHAO
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
This
is an appeal of the decision of a Citizenship Judge dated January 24, 2006 (Decision)
in which the Judge refused to grant the Applicant Canadian citizenship on the
ground that he had not met the residency requirement under section 5(1)(c)
of the Citizenship Act, R.S.C. 1985 c. C-29 (Act).
BACKGROUND
[2]
The
Applicant arrived in Canada from China on October 23, 2000 as
a permanent resident. When he first arrived, he lived in Toronto. His wife
at that time travelled to the United States to complete her
graduate studies. In May 2001, the Applicant was accepted by the University of Windsor for his
baccalaureate studies.
[3]
In
August 2001, the Applicant’s wife finished her graduate studies and moved back
to Toronto.
[4]
In
September 2001, the Applicant and his wife moved to Windsor, Ontario so that the
Applicant could attend the University of Windsor. The
Applicant’s wife began working for Deloitte Consulting Detroit Office. She commuted
between Windsor and Detroit every day. She
worked there until February 2002. For about one month, the Applicant drove her
to work. He claims that sometimes he would receive stamps on his passport for
this trip, even though it lasted less than one hour. In November 2001, the
couple relocated to an apartment in Windsor where the wife was able to take the
bus to Detroit.
[5]
In
June 2002 the Applicant’s wife returned to China to care for
her father while he was ill and to remain with her mother after her father’s
death.
[6]
The
Applicant received his baccalaureate from the University of Windsor
in June 2002, and in July 2002 moved to Toronto, where he
resided until August 2003.
[7]
In
September 2002 the wife found a job with Accenture Consulting Beijing Office
and began working in Beijing, China.
[8]
In
January 2003 the Applicant visited his family in China for
approximately one month.
[9]
In
March 2003 the Applicant took a job in a Honda motor factory in Windsor.
[10]
In
May 2003, the Applicant’s wife made a visit to Canada for 10 days.
[11]
In
August 2003, the Applicant began his graduate studies in Pittsburgh,
Pennsylvania in the United States at the Carnegie Mellon University. He says
that he returned at each break to Windsor or Toronto. The
Applicant’s wife visited again in December 2003, for Christmas.
[12]
After
being awarded his Master’s Degree, the Applicant returned to Toronto in August
2004.
[13]
In
September 2004, the Applicant travelled again to Pittsburgh for software
engineering training and returned after 10 days.
[14]
The
Applicant filed for Canadian Citizenship on October 23, 2004, stating in his
application that he had only been absent from the country for 360 days within
the relevant four-year period. He returned to Pittsburgh for additional
software engineering training and sought optional training provided by Carnegie Mellon University.
[15]
In
June 2005, the Applicant and his wife divorced.
[16]
In
July 2005, the Applicant returned to Toronto to work and has
remained there since that time.
[17]
The
Citizenship Hearing was held in September 2005, and the Applicant was denied
citizenship on January 24, 2006.
THE DECISION
[18]
The
Citizenship Judge found that physical presence of the Applicant was not
necessary for the entire 1,095 days mandated by the Act when there are special
or exceptional circumstances. However, he found that too long an absence from
Canada, albeit temporary, during the minimum period of time under the Act is
contrary to the purpose of the residency requirements. He concluded that there
was not enough evidence to support the Applicant’s assertion that he had been
residing in Canada for the
requisite period under paragraph 5(1)(c) for the following three
reasons:
a)
The
Applicant only provided evidence of three months of employment throughout the
requisite period;
b)
The
records from the Ministry of Health and Long-Term Care (Health Records)
provided by the Applicant revealed little activity (including several large
gaps in time from one period of activity to the next);
c)
There
was a great deal of activity in the Applicant’s United States Dollar Account.
The Citizenship Judge also made a general
statement that “[u]nfortunately you did not provide sufficient evidence to
prove you have been physically residing in Canada within the relevant 4-year
period.”
[19]
The
Citizenship Judge further considered whether to utilise subsections 5(3) and
5(4) of the Act, but noted the Applicant did not file any material in support
of such a recommendation and declined to make one.
[20]
The
Citizenship Judge also noted in his reasons that the Applicant has no family
ties in Canada.
ISSUES
[21]
There
are three issues raised in this appeal:
1.
What
is the scope of the record available for consideration on review?
2.
What
is the standard of review for the Decision by the Citizenship Judge that there was
insufficient evidence to conclude the Applicant had resided in Canada during
the requisite period?
3.
Did
the Citizenship Judge err in concluding that there was not sufficient evidence
to show the Applicant had resided in Canada during the
requisite period?
ARGUMENTS
The
Applicant
[22]
The
Applicant submits that there is sufficient evidence to support his assertion
that he has resided in Canada for the requisite amount of time and that the
Citizenship Judge’s three principle reasons for denying his application for
citizenship are not reasonable given the circumstances.
[23]
First,
the Applicant submits that it was difficult for him to find a job as a new
immigrant, particularly when he had to spend almost two years in university
during his first four years in Canada. Other time was spent looking for work
and preparing for his study periods.
[24]
As
for the lack of activity in his Health Records, he maintains that he was
healthy and rarely needed to see a doctor.
[25]
Finally,
he says that the activity of his United States bank account is
reasonable given the following circumstances:
a.
He
initially brought only US currency to Canada and so had to exchange
it frequently;
b.
His
wife worked for a US company and was paid in US dollars that were
deposited in their US account;
c.
Deposits
in May 2003, and January 2004, represented sums of money that his wife brought
with her when she visited. These sums were used in August 2003, and January
2004, as US dollar drafts to fund his graduate studies;
d.
Finally,
as compared with his Canadian dollar account, his US dollar account shows
little usage.
The
Respondent
Preliminary Objection –
The Record before the Court
[26]
The
Respondent maintains that several exhibits in the Application Record contain
documents that were not before the Citizenship Judge. These include Exhibits B
through F, parts of G and H, all of I and J, and parts of K, M and O. The Respondent
submits that the relevant jurisprudence establishes that an appeal pursuant to
subsection 14(5) is not a de novo hearing and that only the Certified
Record can be considered by the Court in this appeal. As a result, the new
evidence and any submissions with respect to the new evidence are inadmissible.
Standard of
Review
[27]
The
Respondent submits the applicable standard of review is reasonableness.
Merits of the
Application
[28]
The
Respondent notes that the onus is on the Applicant to satisfy the Citizenship
Judge that he meets the requirements of the Act, including the residency
requirement. The word “residence” is not defined under section 2(1) of the Act
but the jurisprudence suggests that the allowance for one year’s absence over
the four year period requires a substantial physical presence in Canada. There are
different formulations of the residency test, but the jurisprudence indicates that
an applicant must demonstrate by objective facts that he or she has initially
established a residence in Canada, and has maintained it throughout the
relevant period of time.
[29]
With
respect to the Applicant’s submissions on why he had gaps in his Health Record,
the Respondent points out that the Applicant did use the health care system for
various ailments on 10 separate occasions; but there were large gaps where
there was no usage, including 1 gap of 9 months, 2 gaps of 8 months, 2 gaps of
4 months and 1 gap of 2 months.
[30]
The
Respondent also submits that minimal or non-existent employment is a relevant
factor in determining whether the residency requirement is met, particularly when
the lack of employment is not the sole factor.
[31]
The
Respondent finally submits that the Certified Record highlights that the
Applicant provided the Citizenship Judge with very little evidence of activity
in his Canadian dollar account and only now explains the activity in his US
dollar account. As there was a lack of evidence before the Citizenship Judge on
this point, the Applicant cannot refute the conclusions of the Citizenship
Judge.
RELEVANT LEGISLATION
[32]
The
decision whether or not to grant citizenship is made by a Citizenship Judge
appointed by the Governor in Council pursuant to section 26 of the Act.
Section 5 of the Act sets out the requirements for citizenship. The residency
period is one of the requirements and is governed by paragraph 5(1)(c):
|
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;
[...]
|
[33]
Section
14 of the Act outlines the assessment process. An appeal from the Decision of
the Citizenship Judge is provided for in subsection 14(5):
|
14. (1) An application for
(a) a grant of
citizenship under subsection 5(1),
(b) a retention of
citizenship under section 8,
(c) a renunciation of citizenship under subsection 9(1),
or
(d) a resumption of
citizenship under subsection 11(1)
shall
be considered by a citizenship judge who shall, within sixty days of the day
the application was referred to the judge, determine whether or not the
person who made the application meets the requirements of this Act and the
regulations with respect to the application.
(2)
Forthwith after making a determination under subsection (1) in respect of an
application referred to therein but subject to section 15, the citizenship
judge shall approve or not approve the application in accordance with his
determination, notify the Minister accordingly and provide the Minister with
the reasons therefore.
[…]
(5) The Minister or the
applicant may appeal to the Court from the decision of the citizenship judge
under subsection (2) by filing a notice of appeal in the Registry of the
Court within sixty days after the day on which
(a) the citizenship
judge approved the application under subsection (2); or
(b)
notice was mailed or otherwise given under subsection (3) with respect to the
application.
|
14. (1) Dans les soixante jours de sa saisine, le juge de la
citoyenneté statue sur la conformité — avec les dispositions applicables en
l’espèce de la présente loi et de ses règlements — des demandes déposées en
vue de :
a) l’attribution
de la citoyenneté, au titre du paragraphe 5(1);
b) la
conservation de la citoyenneté, au titre de l’article 8;
c) la répudiation
de la citoyenneté, au titre du paragraphe 9(1);
d) la
réintégration dans la citoyenneté, au titre du paragraphe 11(1).
(2) Aussitôt
après avoir statué sur la demande visée au paragraphe (1), le juge de la
citoyenneté, sous réserve de l’article 15, approuve ou rejette la demande selon
qu’il conclut ou non à la conformité de celle-ci et transmet sa décision
motivée au ministre.
[…]
(5) Le ministre
et le demandeur peuvent interjeter appel de la décision du juge de la
citoyenneté en déposant un avis d’appel au greffe de la Cour dans les
soixante jours suivant la date, selon le cas :
a) de
l’approbation de la demande;
b) de la communication, par courrier ou tout autre moyen, de la
décision de rejet.
|
[34]
Pursuant
to
section 21 of the Federal Courts Act, R.S.C. 1985, c. F-7, the Federal
Court has exclusive jurisdiction to hear appeals under subsection 14(5) of the
Act. Rule 300(c) of the Federal Courts Rules, SOR/98-106 provides that
appeals under subsection 14(5) of the Act shall proceed as applications.
ANALYSIS
What is the scope of the
record available for consideration on review?
[35]
Under
Rule 300(c), an appeal from a decision of a Citizenship Judge under subsection
14(5) proceeds as an application. The old system operated as a trial de
novo and an applicant was entitled to present fresh evidence. However,
several decisions have concluded that an appeal such as the one before me in
this application should proceed solely on the basis of the record before the
Citizenship Judge. See, for instance, the decisions of Justice Rothstein in Canada (Minister of
Citizenship & Immigration) v. Chan (1998), 150 F.T.R. 68,
44 Imm. L.R. (2d) 23 at para.3 (F.C.T.D.) and Justice Rouleau in Tsang v. Canada (Minister of
Citizenship and Immigration), [1999] F.C.J. No. 1210 at para.2 (F.C.T.D.)(QL).
See also Canada (Minister of
Citizenship and Immigration) v. Hung (1998), 47 Imm. L.R.
(2d) 182, [1998] F.C.J. No. 1927 at para.8 (F.C.T.D.)(QL) where Justice
Rouleau held explicitly that no new evidence is to be submitted before this
Court. Finally, Justice de Montigny has referenced all of these cases in the
recent decision of Lama v. Canada (Minister of Citizenship and Immigration),
2005 FC 461 at paragraph 21 and has concluded that the only evidence
that may be considered on appeal is the evidence that was before the
Citizenship Judge.
[36]
Thus,
it would appear that the Applicant is only entitled to rely on the evidence as
provided in the Certified Record, and that any additional information submitted
in his Application Record to this Court must be struck. This means that no
consideration can be given to the Applicant’s cell phone records, local phone
and long distance service records, Internet records, and utility payment
records. Furthermore, the Court should not consider the documents relating to
the Applicant’s Canadian dollar account, United States dollar
account, Visa account, and academic and employment pursuits that are additional
to those submitted to the Citizenship Judge. My review of the submissions made
in this case by both the Applicant and counsel for the Respondent suggest to me
that the Applicant’s principal difficulty in proving residency to the
satisfaction of the Citizenship Judge was caused by an incomplete record. The
Applicant is a fairly recent immigrant, his English is not perfect, and he
appears not to have understood the need to assume the onus of presenting the
whole picture to the Citizenship Judge; he thought he could rely upon the Judge
to ask for what was needed. This is unfortunate because I believe the full
record would have presented a very different picture for the Citizenship Judge.
What is the appropriate standard
of review?
[37]
The
general view in the jurisprudence is that the decision of a Citizenship Judge
is administrative in nature. Thus, as a result of the decision in Canada
(Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, 209 N.R. 20 the statutory
appeal under subsection 14(5) of the Act is subject to a pragmatic and
functional analysis and its corresponding standards of review.
[38]
Most
of the jurisprudence is also clear that subsection 14(5) provides for a
statutory appeal and not judicial review, even though the proceedings are commenced
by way of an application under Rule 300. According to Justice Pinard in Canada (Minister of
Citizenship and Immigration) v. Sun (2000), 191 F.T.R. 62,
[2000] F.C.J. No. 812, at para.2 (F.C.T.D.) the only significance to be
attributed to the fact that the appeal proceeds by way of application is that
appeals under the Act are dealt with procedurally in the same way as an
application for judicial review. This was also the view expressed by Justice
Lutfy (as he then was) in Lam v. Canada (Minister of Citizenship and
Immigration) (1999), 164 F.T.R. 177, [1999] F.C.J. No.410 (F.C.T.D.) at
paragraph 9. There are decisions that have considered the mandate of the court
under subsection 14(5) of the Act to be judicial review (see, for instance, Canada (Minister of
Citizenship and Immigration) v. Tobvin (2000), 190
F.T.R. 102, 10 Imm. L.R. (3d) 302 at paragraph 43) but it would appear that the
more consistent view is that I am dealing with a statutory appeal.
[39]
Much
of the caselaw in this area revolves around the proper interpretation of the
term “residence” in paragraph 5(1)(c), which has led to a divergence of
views in the jurisprudence. In both Chen v. Canada (Minister of Citizenship
and Immigration), 2006 FC 85 at paragraph 6 and Morales v. Canada (Minister of
Citizenship and Immigration) (2005), Imm. L.R.(3d) 284, 2005 FC
778 at paragraph 6 the Court held that the appropriate standard of review of a
decision based on the residency requirements is reasonableness. Justice Phelan
in Chen references several recent cases that have reached this
conclusion. Justice
Shore
in Morales explained that the question of whether a person has met the
residency requirement under the Act is a question of mixed fact and law, and
Citizenship Judges are owed some deference by virtue of their special degree of
knowledge and experience.
[40]
In
fact, in Canada (Minister of
Citizenship and Immigration) v. Chang, 2003 FC 1472 at paragraph
7, Justice MacKay outlines the factors of the pragmatic and functional approach
in concluding that the appropriate standard is reasonableness:
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 the 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 whether the emphasis is on the low (sic).
[41]
Similarly,
in Huang v. Canada (Minister of Citizenship and Immigration) (2005) 40
Imm. L.R. (3d) 259, 2005 FC 861 at paragraphs 10-13, Justice Mosley referred to
his decision in Zeng v. Canada (Minister of Citizenship and Immigration), 2004
FC 1752, where he found that the question of whether a person has met the
residency requirement under the Act is a question of mixed fact and law and
that citizenship judges are owed some deference because of their knowledge and
experience. Thus, he held the standard to be reasonableness. This is also supported
by the decision of Justice Snider in Chen v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1693.
[42]
On
the other hand, a number of decisions have held that the appropriate standard of
review is correctness. These decisions follow the reasoning in Lam, above
at paragraph 33 where Justice Lutfy (as he was then) stated that the proper
interpretation of paragraph 5(1)(c) is to be reviewed on a standard of
correctness, but that 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)(c), a
reviewing judge ought not to substitute arbitrarily his or her different
opinion of the residency requirement. Some deference is owed to the special knowledge
and experience of the Citizenship Judge.
[43]
Justice
Lutfy in Lam at paragraphs 18-31 also reviewed the factors applicable to
a pragmatic and functional analysis thoroughly. He noted with respect to the
first factor that the appeal provided for in the Act is comprehensive and not
subject to leave, and the decision by the Federal Court judge is not
appealable. This suggests little deference. Second, any citizen may be a citizenship
judge pursuant to subsection 26(1) of the Act. There is no evidence
concerning a screening process. This factor also suggests little deference. Justice
Lutfy expressed his opinion that a citizenship judge has the same “relative
expertise” to determine whether the residency requirement has been met. Third,
the purpose of the Act is set out in the requirements and application
procedures for citizenship. The fact that Parliament delegated the initial
assessment to an administrative tribunal may indicate that a standard other
than correctness is called for. Finally, Justice Lutfy also held that the
question of whether an Applicant meets the citizenship residency requirements
is a question of mixed fact and law. He concluded at paragraph 31 as follows:
The objective factors relating to the
role of the citizenship judge in determining the residency requirement call for
greater curial deference than the standard of correctness. As a mixed question
of law and fact, the standard, again in objective terms, may be as far down the
spectrum as reasonableness simpliciter. However, I hesitate to reach such a
definitive conclusion in the current state of flux.
(emphasis added)
Thus, even though he applied a standard of
correctness in Lam, Justice Lutfy anticipated that in some cases the
standard of review may more appropriately be one of reasonableness. See also Lin
v. Canada (Minister of
Citizenship and Immigration) (2002) 20 Imm. L.R. (3d) 104, 2002 FCT 346.
[44]
More
recently, in Canada (Minister of Citizenship and Immigration) v. Xiong, (2004)
38 Imm. L.R. (3d) 316, 2004 FC 1129 at paragraph12, Justice Phelan applied a
standard of correctness. However, according to Justice Phelan in Chen, this
decision was not on whether the residency requirement had been met but was
based on the principle that a citizenship judge must address, first, whether an
applicant has established residence and, second, whether the applicant has
maintained that residence (this two-stage test is discussed below). A failure
to do either is an error of law reviewable on correctness.
[45]
In
summary, it would appear that the Court tends to favour review on a standard of
reasonableness. Applying the factors in the pragmatic and functional analysis
under the particular circumstances of this case, in my view, results in the
same standard. While the Citizenship Judge states that the evidence is
insufficient to support the application for citizenship, he also notes that he
considered the more flexible approach to interpreting residency and was unable
to find that the Applicant met this standard, implying that he considered the
legal interpretation of residency and applied it to the facts of the case.
This would appear to constitute a question of mixed fact and law, suggesting
some deference, but not complete deference. The other factors remain largely
unchanged from the review above. Since some factors point to deference and
others to little deference I conclude that the appropriate standard is
reasonableness.
Did the Citizenship
Judge err in concluding that there was not sufficient evidence to conclude the
Applicant had resided in Canada during the requisite
period?
[46]
According
to Maharatnam v. Canada (Minister of Citizenship and Immigration), [2000]
F.C.J. No. 405 at para.5 (T.D.)(QL), the onus was on the Applicant to satisfy
the Citizenship Judge that he was present in Canada during the requisite time
period required by the Act. There has been some divergence in the jurisprudence
as to the applicable test to be applied when determining whether the residency
requirement has been met.
[47]
The
Citizenship Judge states that, “after carefully reviewing all of the
documentation you provided, I found that you do not meet the requirement under
section 5(1)(c) of the Citizenship Act.” He points to the three areas of
deficiency outlined above. He then states that “unfortunately you did not
provide sufficient evidence to prove you have been physically residing in Canada within the
relevant 4 year period.” The Citizenship Judge also notes as follows:
There is Federal Court jurisprudence
which does not require physical presence of the applicant for citizenship for
the entire 1,095 days, when there are special or exceptional circumstances.
However, in my view, too long an absence from Canada, albeit temporary, during
the minimum period of time set out in the Act, as in the present case, in (sic)
contrary to the purpose of the residency requirements of the Act.
[48]
It
appears from the letter provided by the Citizenship Judge outlining his
reasoning that he considered the divergent jurisprudence of the Court as to the
legal test for residency, adopted the more flexible approach, and applied it to
find the circumstances of the Applicant, in light of the lack of evidence
adduced, suggested he did not meet this test. For that reason it is necessary
to address the divergent jurisprudence of the court briefly and then consider
the application of the facts of this case to that jurisprudence.
[49]
Residence
is not a defined term in the Act. Federal Court jurisprudence has held that
establishing residence is essentially a two-part process: Goudimenko v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 447 at paragraph 13. The first
stage is a threshold determination of whether or not, and when, residence has
been established. If the threshold is met, the second stage of inquiry involves
a determination of whether or not an applicant’s residency satisfies the total
number of days required under the Act. It is with respect to this second stage
that the divergence of opinion in the Federal Court exists with respect to what
constitutes residency. The first step does not seem to have been considered a
problem by the Citizenship Judge in this case. The Applicant landed in Canada
on October 23, 2000. Although he adduced no evidence to prove his residency in
Canada between his
date of landing and early 2001, there also does not appear to be any evidence
in his passport that he left the country during this time period. The
contentious element of the Applicant’s claim appears to be whether he met the
second component of the test, i.e. the duration of residence.
[50]
There
are three general tests that have been developed by the Federal Court, and a citizenship
judge may adopt and apply whichever one he or she chooses as long as it is
applied properly: So v. Canada (Minister of Citizenship and Immigration), 2001
FCT 733 at paragraph 29. Under the first test, a person cannot reside in a
place where the person is not physically present. Thus, it is necessary for a
potential citizen to establish that he or she has been physically present in Canada for the
requisite period of time. This flows from the decision in Pourghasemi (Re)
(F.C.T.D.) (1993), 60 F.T.R.122, 19 Imm. L.R. (2d) 259 at paragraph 3
(F.C.T.D.), where Justice Muldoon emphasized how important it is for a
potential new citizen to be immersed in Canadian society. Two other contrary tests
represent a more flexible approach to residency. First, Thurlow A.C.J. in Papadogiorgakis,
[1978] 2 F.C. 208, 88 D.L.R. (3d) 243 (F.C.T.D.) held that residency
entails more than a mere counting of days. He held that residency is a matter
of the degree to which a person, in mind or fact, settles into or maintains or
centralizes his or her ordinary mode of living, including social relations,
interests and conveniences. The question becomes whether an applicant’s
linkages suggest that Canada is his or her home, regardless of any absences
from the country.
[51]
Justice
Reed has outlined the third approach, which is really just an extension of Justice
Thurlow’s test. In Re: Koo, [1993] 1 F.C. 286 59 F.T.R. 27 (F.C.T.D.), Justice
Reed held that the question before the Court is whether Canada is the
country in which an applicant has centralized his or her mode of existence.
This involves consideration of several factors:
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 1095 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 temporary employment abroad?
6.
What is the quality of the connection with Canada: is it
more substantial than that which exists with any other country?
The general principle is that the quality
of residence in Canada must be more substantial than elsewhere. See
also Lin v. Canada (Minister of
Citizenship and Immigration) (2002), 21 Imm. L.R. (3d) 104, 2002 FCT
346.
[52]
The
Citizenship Judge in the present case assessed the evidence submitted by the
Applicant and held that it was insufficient to support his claim to have been
resident in the country for the requisite period for three reasons: a) very
little evidence of employment; b) gaps in his Health Record; and c) significant
activity in his United States dollar account. He held that physical presence
was not necessary, but that on the facts of this case there were no special
circumstances that would warrant finding residency.
No evidence of
employment
[53]
In
the Certified Record, there is evidence to support the Applicant’s submission
that he was in university for approximately two years. See, for instance,
pages 57, 70, 71, 86, 88 of the Certified Tribunal Record. The Applicant does
not deny that he only worked for three months, but provides evidence that supports
his claim that he was studying. There is nothing in paragraph 5(1)(c)
that says that, in order to be resident, an applicant must be employed. In
fact, the Applicant’s evidence shows that he was attending the University of Windsor from fall
2001 through summer 2002, and this supports his claim to have been resident in
Canada for that period of time. Similarly, the documents he provides to support
his education in Pittsburgh corroborate his account of why he was absent
from the country.
Little activity from the
Ministry of Health and Long-Term Care
[54]
In
my view, the Applicant’s explanation in this regard is entirely reasonable. It
was unreasonable for the Citizenship Judge to conclude in part that the
Applicant was not resident in Canada because there are gaps in his medical
record. It was unreasonable to conclude that gaps in a person’s medical claims
indicate he or she was not present. As the Respondent recognizes, the
Applicant only used the health care system on ten separate occasions. Thus, in
my view, there is not enough of a pattern of high grouped usage to make the
inference that gaps in care equate to absence from the country.
A great deal of activity
in the US Dollar Account
[55]
The
Applicant has provided a credible explanation for this activity. Unfortunately,
much of the evidence that would support his claim, including his wife’s job
offer, and his Canadian bank statements, cannot be considered as evidence in
this application because they were not provided to the Citizenship Judge.
However, the fact that he was in school in Pittsburgh (evidence
that was before the Citizenship Judge) supports the Applicant’s explanation
behind the large bank drafts.
Overall examination of
the evidence
[56]
With
regard to the sufficiency of the evidence taken in its totality, it is true
that there are gaps in the record. The Applicant has some rental verifications.
His passport does not show a great deal of unexplained use. He can prove he was
in attendance at the University of Windsor, and he
consistently filed income tax returns. He provided his passport in full, as
well as his health records, copies of his drivers licence in both Canada and
the United
States
and his Social Insurance Number. His submissions on behalf of his application
for citizenship are consistent and forthright. However, even if the evidence provided
does not support a finding that the Applicant has been present in Canada for all
but 360 days, the Citizenship Judge appears to have erred in my view in not
finding he still meets the residency requirement upon due consideration of the
evidence that was before him in conjunction with the flexible approach to
residency the Citizenship Judge appears to have adopted in his reasoning. As
regards the six factors outlined in Koo, it is my view that the
Applicant has demonstrated that he has centralised his mode of living in Canada.
[57]
Looking
briefly at the factors in Koo, it is true that the Applicant has no
family in Canada. However, he has only returned to Taiwan once since
he left that country. He is divorced with no children, so his closest family
are his parents and brother. His patterns of travel suggest he is outside of Canada only
temporarily, and he returns to Canada as his home. The evidence also supports
his assertion that he has been in Canada for substantial
portions of time, even if he falls below the requisite number of days, and his
largest period of absence was for study. Finally, his connection with Canada appears to
be more substantial than his connection with any other country. Nothing
establishes that he has been working in either the United States or Taiwan, or trying
to establish a life outside of Canada.
[58]
The
Applicant has compiled an extensive record of documentation that, although not
admissible for purposes of this application for the reasons given, will be of
considerable assistance when this matter is reconsidered.
[59]
The
Court recognizes that the onus is upon the Applicant to establish that he meets
the requirements of the Act. However, I believe that reviewable error did occur
in this case because the factors that became the focus of the Decision were unreasonably
decontextualized.
[60]
For
example, in deciding to look at bank account activity, the Citizenship Judge
only requested US records. As regards employment, the judge emphasized that
there was only three months of employment in Canada without
placing that fact in the full context of what was on the record: i.e. the
Applicant was a recent immigrant with fairly poor language skills who was in no
position to secure employment and who diligently went about the business of
educating himself in the most efficient way he could so that he could become a
full member of the Canadian community. The Applicant’s focus was always on
Canada.
[61]
An
injustice will occur in this case if the matter is not reconsidered and the
Applicant is not given a chance to present the full record to show that he does
qualify under the Act. I realize that there have been occasions when the Court
has granted citizenship from the bench. See, for example, Taylor v. Canada
(Minister of Citizenship and Immigration), 2006 FC 1053. I do not
believe that such a remedy would be appropriate in this case. This is because
my conclusion is that, in making the Decision, the Citizenship Judge neglected
to take into account all of the evidence before him and, in particular, did not
look at the broad context of the Applicant’s claim. There are evidentiary
matters that need to be reassessed against a full record that is not before me
in this application.
JUDGMENT
THIS COURT ORDERS THAT:
1.
The
Application is allowed. The matter is returned for reconsideration by a
different citizenship judge.
“James Russell”
Judge
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