Date: 20041006
Docket: T-2112-03
Citation: 2004 FC 1376
Ottawa, Ontario, October 6, 2004
Present: The Honourable Mr. Justice W. Andrew MacKay
BETWEEN:
FANG DONG HONG
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant, Fang Dong Hong, appeals the decision of a Citizenship Court Judge dated September 18, 2003, who declined to approve her application for citizenship. The basis for the Judge's decision was the finding that the applicant had not met residence requirements under s. 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29 (the "Act").
[2] That provision of the Act requires that an applicant for citizenship meet residence requirements of an accumulated three years of residence within the four years immediately preceding the date of application.
[3] Ms. Fang entered Canada as a permanent resident on November 20th, 1998, having been sponsored by her husband. After her arrival, she discovered that her husband had been unfaithful and she left Canada on March 19, 1999, that is after 118 days, returning to China. She remained there until June 2nd, 1999 when she returned to Canada where she remained until July 19, 1999. Thereafter she was absent from Canada on further occasions, for 80 days from July to October 1999, for 20 days from April to May 2000, for 145 days from May to October 2000, for 177 days from November 2000 to May 2001, and for 266 days from June 2001 to March 2002. Her trips abroad were always to Hong Kong or China and they were for a combination of family visits and business. In the four years prior to her application for citizenship she was present in Canada for 536 days and absent for 559 days.
[4] In part her absences from Canada resulted from her personal and family circumstances. After her initial return to China in 1999 she met and developed a relationship with a man who later became her husband. She was married in China after she had given birth to her daughter in February 2000. She and her husband, having been married, both intended to come to Canada, but she was not permitted to sponsor him as a permanent resident, at least in part because of absences from Canada during her time as a permanent resident. Her parents and her husband's parents all lived in China, and her husband with support of his family was able to take care of their daughter while Ms. Fang travelled back and forth to Canada, sometimes accompanied by her daughter.
[5] She had established a business in Richmond Hill, Ontario, providing beauty care products and appliances from China. Her business grew and developed and required substantial personal involvement including, as she saw necessary, obtaining an inspection of product purchased in China for shipment to Canada.
[6] The Citizenship Court Judge reviewed the applicant's circumstances in light of the factors suggested by Madam Justice Reed in Re Koo, [1992] F.C.J. No. 1107. The Judge concluded that "Canada is not the place where you 'regularly, normally or customarily live'. You were out of Canada more than you were in Canada.... you have not maintained your presence in Canada nor centralized your mode of existence in Canada. In short all the facts of your case indicate that you have a closer connection to China than to Canada."
[7] The applicant urges that the Citizenship Judge did not fairly and fully assess the evidence before her, that she downplayed the significance of the applicant's business as an element of her residence in Canada and her involvement in Canadian society through her business. Further, she rented a house in Markham, and owned and maintained an automobile and paid taxes in Canada. The fact that she had given birth to her daughter in Canada and was expecting another child at the time of her interview was said to be given no significance by the Judge. The continuing residence of her parents and husband in China were given greater weight than the fact that the applicant lived with her sister, who was in Canada. Finally it is urged that the Judge did not consider sufficiently her evidence, given at her hearing when she explained that her returns to China were because of the "forcible separation" from her husband whenever she remained in Canada. She had sought to sponsor him as a permanent resident but had been refused, a refusal which was under appeal at the time of her interview. That, it is urged precluded their living as a family in Canada, so that in the interests of her family she was required to travel and to spend time in China.
[8] Finally it is urged for the respondent that she had in fact established her residence in Canada so that her absences ought not to be counted as days when she was not resident.
ANALYSIS
[9] The parties do not agree on the appropriate standard of review. For the applicant it is urged that the proper standard is in essence correctness, while for the respondent it is urged that the appropriate standard is reasonableness. Both parties rely on the decision of Mr. Justice Lutfy (as he then was) in Lam v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 410 (T.D.). As I read that decision, after noting two lines of decision in this Court about residence requirements under the Act, Mr. Justice Lutfy stressed that considerable deference was owed to the decision of a Citizenship Judge in assessing the question of residence in light of the statutory requirement, a mixed question of fact and law. If the Citizenship Judge applies a recognized test for assessing residence, as was done here with reference to Re Koo, the decision should not be overturned unless the Judge clearly ignored important evidence or failed to provide procedural fairness.
[10] I'm not persuaded in this case that the Citizenship Judge did ignore relevant evidence. It may have been weighed differently than this Court might have done if that were my task. But my task is not to decide whether I would have come to a different conclusion. My task is to decide whether the decision of the Judge was reasonable based on the evidence before her. In my view, the appropriate standard of review is reasonableness.
[11] I'm not persuaded that the Judge erred in this case in determining that the applicant had not met residence requirements under the Act. In so deciding her determination was reasonable in light of the evidence before her. For this reason, the application for judicial review is dismissed.
ORDER
THIS COURT ORDERS that the appeal from the decision of the Citizenship Court Judge dated September 18, 2003, is dismissed.
"W. Andrew MacKay"
D.J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2112-03
STYLE OF CAUSE: Fang Dong Hong v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 30, 2004
REASONS FOR ORDER AND ORDER: MACKAY D.J.
DATED: October 6, 2004
APPEARANCES:
Ms. Nancy Myles Elliott FOR APPLICANT
Ms. Matina Karvellas FOR RESPONDENT
SOLICITORS OF RECORD:
Ms. Nancy Myles Elliott
Barrister and Solicitor
Markham, Ontario FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT
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