Date: 20010517
Docket: T-1202-00
Neutral Citation: 2001 FCT 501
BETWEEN:
CAI ER, ZHANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
(Reasons Delivered orally from the Bench
in Toronto, Ontario on May 10, 2001, as edited)
McKEOWN J.
[1] The applicant appeals the decision of a Citizenship Judge dated May 29, 2000, wherein the judge refused the applicant's application for citizenship on the ground that the applicant failed to satisfy the residency requirements set out in paragraph 5(1)(c) of the Citizenship Act, R.S.C. 1985 c. C-29 (the "Act"), which requires the applicant to have accumulated three years of residency in Canada within the four years immediately preceding her application.
[2] The issues are:
1) Did the Citizenship Judge err by making an erroneous finding of fact without regard to the material before him?; and
2) Did the Citizenship Judge err in law in determining that the applicant did not meet the residency requirement in section 5(1)(c) of the Citizenship Act, R.S.C. 1985 c. C-29?
FACTS
[3] The applicant landed in Canada along with her husband and two sons on October 5, 1994. The applicant left Canada to return to China ten days after being landed. She returned to Canada for brief periods of 3 to 12 days in length over the years. The applicant was absent from Canada for a period of 1,094 days during the four years preceding her application. She was present in Canada for a total of 163 days, or less than 41 days per year.
[4] Indicia of the applicant's residence in Canada included: the applicant purchased a house in Canada; the applicant has maintained bank accounts with Toronto-Dominion Bank and Scotiabank; the applicant has bank investments and fixed term deposits with Toronto-Dominion Bank. The applicant also has certain visa cards, life insurance, OHIP and social insurance cards. Since landing in Canada the applicant has paid Canadian income tax, is a Canadian resident and has paid realty tax on a family residence. The applicant has also donated monies to certain charities.
[5] The applicant has also maintained her ties with Canada through her family's presence in Canada. The applicant's husband and two sons came with the applicant to settle in Canada and now are Canadian citizens. The applicant's husband and two sons stayed in Canada after landing and her two sons continued their studies in Canada with the applicant paying the tuition fees. During her absences from Canada, the applicant was always in telephone contact with her husband and two sons from China.
[6] The applicant was absent from Canada during the periods set out in the record and all of the applicant's absences from Canada were for employment reasons. The Citizenship Judge acknowledged that it was a job requirement that accounted for her absences.
[7] The standard of review applicable in such matters is correctness. The test is refined further by Justice Lutfy in Lam v. Canada (M.C.I.) (1999), 164 F.T.R. 177 where he stated at paragraph 33:
However, 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), the reviewing judges ought not to substitute arbitrarily their different opinion of the residency requirement.
It was further refined by Justice Pelletier in Canada (M.C.I.) v. Mindich (1999), 170 F.T.R. 178 (T.D.) where he stated at paragraph 9:
Given the divergence in the views of the members of the Federal Court, a Citizenship Judge could choose one approach or the other and not be wrong on that count alone. The function of the judge sitting in appeal is to verify that the Citizenship Judge has properly applied the test of his or her choosing.
[8] In the case before me, the Citizenship Judge relied on Re Koo, [1993] 1 F.C. 286 (T.D.) The applicant's counsel says that the Citizenship Judge has misapplied Re Koo and cites the following contradiction in the Judge's decision:
Although the applicant has established a connection to Canada through her employment and family, her absences from Canada are so significant and outweigh her presence that I cannot approve her request for citizenship.
The first part of the sentence, according to counsel, is the requirements in Re Koo, but the second part resembles the findings of Justice Muldoon in Re Harry (1998), 144 F.T.R. 141. I would agree with counsel if the judge had used the words "residence in" as opposed to "connection to". The Citizenship Judge's words must be taken in context. The preceding sentence reads as follows:
I have therefore carefully examined your case to determine whether you had established residence in Canada prior to your absences such that those absences could nevertheless be counted as periods of residence.
Then, after the sentence quoted earlier, above, the Citizenship Judge goes on to say:
After having considered the evidence I received both by way of testimony and documentation, I could not find that you have established a residence in Canada by virtue of a centralized mode of living in Canada in the four years preceding your application for Canadian Citizenship.
[9] While I would not have come to the same conclusion, I cannot say that the Citizenship Judge did not follow Re Koo, supra. The applicant was only in Canada for ten days before leaving on her first employment trip, so she could not have established residence in that short a period of time. The length of the absences of the applicant in the case before me exceed those of the party in Re Koo, supra where the Court held that the applicant had not met the test but Canada is the place where the applicant regularly, normally or continually lives. The test is also sometimes stated to be whether Canada is the country in which the applicant has centralized his or her mode of living.
[10] I cannot say that the Citizenship Judge erred in his finding of fact nor that he erred in determining that the applicant did not meet the residency requirement in section 5(1)(c) of the Act. The judge's reasons and notes, while not complete, are adequate. The Citizenship Judge also did not err in making the following finding:
Pursuant to subsection 15(1) of the Citizenship Act, I have considered whether or not to make a recommendation for an exercise of discretion under subsection 5(4) of the Act which empowers the Governor In Council to direct the Minister to grant Citizenship to any person in cases of special or unusual hardship or to reward services of an exceptional value to Canada.
Since you are unable to provide me with any evidence in that regard, I see no reason to make a recommendation under either of [sic] subsection 5(4).
The applicant's employment activities, while helpful to Canada, do not constitute "exceptional value to Canada". See Re Koo, supra at page 9. While I personally regret the situation in which the applicant finds herself, and while I think she would make a fine Canadian citizen, she did not meet the requirements of the Act as per Re Koo, supra.
[11] The appeal is dismissed.
"W.P. McKeown"
JUDGE
Ottawa, Ontario
May 17, 2001
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