Date: 20050729
Docket: T-2022-04
Citation: 2005 FC 1051
Ottawa, Ontario, this 29th day of July, 2005
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
and
YAO ZHOU HUANG
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Yao Zhou Huang arrived in Canada from China on August 19, 1998, accompanied by his wife and two sons. He applied for Canadian citizenship on March 28, 2003 and a citizenship judge granted it to him.
[2] The appellant argues that the citizenship judge erred by recognizing that Mr. Huang had satisfied the residence requirement in s. 5(1) of the Citizenship Act, R.S.C. 1985, c. C-29 (see attached annex). I agree that the citizenship judge erred and, therefore, will allow this appeal.
I. Issue
[3] Was the citizenship judge's conclusion that Mr. Huang had satisfied his residency requirement reasonable?
II. Analysis
[4] Mr. Huang's spouse has faced mental health issues for a number of years. Concerned about her well-being, he took her back to China for long periods of time to obtain both Western and traditional Chinese medical treatment there. She was diagnosed with schizophrenia.
[5] The Huangs spent most of 1999 in China. In 2000, after returning to Canada, Mrs. Huang sought treatment from a Chinese-speaking psychiatrist in Vancouver, but saw him only twice. The couple returned to China in 2001 for six months, and in 2002 for eight months. Regrettably, Mrs. Huang's condition worsened in 2003. The medication she had been prescribed in China was no longer working. She was hospitalized in Vancouver. Ultimately, however, she was referred to a Canadian psychiatrist who has been treating her successfully.
[6] The Citizenship Act requires that an applicant be a resident of Canada for three out of the four years preceding the application. Therefore, Mr. Huang had to show that he was a resident of Canada for three years (1095 days) between March 28, 1999 and March 28, 2003. In fact, due to his many absences, Mr. Huang was physically present in Canada for only 669 days.
[7] The law allows some flexibility in applying the residency requirement, recognizing that a person who has firmly established his or her connection with Canada may still be considered a resident during periods of absence. Citizenship judges must consider a variety of factors and criteria in deciding whether a candidate has maintained his or her residence in Canada notwithstanding frequent or lengthy absences: See, for example, Koo (Re), [1993] 1 F.C. 286 (T.D.); Woo v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1808 (T.D.) (QL).
[8] The citizenship judge concluded that Mr. Huang had established his Canadian residence in February 1999 when he returned to Canada after tying up loose ends in China. The appellant does not argue against that finding. The citizenship judge went on to find that Mr. Huang's long absences could be described as "temporary and involuntary" because he was trying his best to obtain proper medical treatment for his wife. He felt he would find that treatment in China, not Canada.
[9] However, as the appellant argues, Mr. Huang's conduct is simply not consistent with that of a person who wishes to become Canadian. The Huangs did not give the Canadian medical system much of a chance until 2003. They only consulted one Canadian psychiatrist, even though there were at least a dozen other Chinese-speaking psychiatrists in Vancouver at the time. Traditional Chinese medical treatment is also available in Vancouver. Further, there is a large Chinese-speaking community in Vancouver, to which Mr. Huang could have turned if he needed help finding medical services.
[10] In my view, as well-intentioned as it no doubt was, Mr. Huang's conduct cannot be characterized as involuntary. He simply made a choice to seek medical treatment for his wife outside of Canada. Nor could the situation he was dealing with be described as "temporary". It was clear, as early as 1999, that Mrs. Huang would require medical treatment over a long term.
[11] The citizenship judge considered several factors in her analysis of Mr. Huang's application, as she was required to do. However, her reasons clearly show that she felt that the "temporary and involuntary" nature of Mr. Huang's absences was of paramount significance. In my view, given that she erred in her characterization of those absences, the citizenship judge's decision is not supportable on the evidence.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The appeal is allowed.
"James W. O'Reilly"
Judge
| Citizenship Act, R.S.C. 1985, c. C-29
Grant of citizenship
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;
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Loi sur la citoyenneté, L.R.C. ch. C-29
Attribution de la citoyenneté
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;
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FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2022-04
STYLE OF CAUSE: MCI v. YAO ZHOU HUANG
PLACE OF HEARING: VANCOUVER, B.C.
DATE OF HEARING: July 20, 2005
REASONS FOR JUDGMENT
AND JUDGMENT BY: THE HONOURABLE MR. JUSTICE O'REILLY
DATED: July 29, 2005
APPEARANCES BY:
Mr. Jonathan Shapiro FOR THE APPELLANT
No appearances FOR THE RESPONDENT
SOLICITORS OF RECORD:
John H. Sims, Q.C. FOR THE APPELLANT
Deputy Attorney General of Canada
Toronto, ON
LOH & COMPANY FOR THE RESPONDENT
Toronto, Ontrio
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