Date: 20010703
Court File No.: T-470-00
Neutral Citation: 2001 FCT 738
Ottawa, Ontario, this 3rd day of July, 2001
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
WAI CHUNG KWAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Nature of the Proceeding
[1] This is an appeal by Wai Chung Kwan to have the decision of the Citizenship Judge Doreen Wicks, dated January 11, 2000, set aside. The Citizenship Judge refused the applicant's application for citizenship on the ground she did not satisfy the residency requirements set out in paragraph 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29.
Facts
[2] The applicant, accompanied by her son and husband, immigrated to Canada from Singapore on May 24, 1994. At that time the applicant acquired landed immigrant status.
[3] The applicant contends that some years prior to her landing she had spent considerable time in Canada as a student.
[4] In June of 1994, shortly after her arrival in Canada, the applicant purchased a home in Willowdale, Ontario. During the same month, the applicant found employment with a Canadian company, Tissa Systems Limited, as a financial consultant to their clients in Canada, USA and Asia. This job required her to go on business trips outside of Canada.
[5] On July 14, 1994, the applicant resigned from her employment in Hong Kong, effective August 15, 1994 since she had moved to Toronto with her family.
[6] On August 14, 1994, the applicant was issued a Returning Resident Permit from Employment and Immigration Canada, which was valid until June 14, 1996.
[7] In January of 1997, the applicant and her only brother, who is a Canadian citizen arranged for the remains of their parents to be transferred from Hong Kong to Toronto so they could tend to them in the Chinese traditional manner.
[8] In the fall of 1997, the applicant resigned from her position with Tissa Systems Limited because she did not wish to travel abroad any longer.
[9] On November 1, 1997, the applicant signed an employment contract with Citibank Canada commencing on that day and terminating on April 30, 1998 [Tribunal Record 177-178]. However, the applicant stated in her sworn affidavit that she was employed with Citibank Canada from November, 1997 until July, 1998. The applicant also stated that for the duration of this employment contract, she did not make any trips outside of Canada. However, she did go to the USA on a one day business trip on November 4, 1997 [Tribunal Record p. 4].
[10] After her employment contract with Citibank Canada expired, the applicant was unable to find work in Canada. She had to return to Tissa Systems Limited where she was dispatched to work on a research project on the Asian Financial Crisis for the Hong Kong Centre for Economic Research at Hong Kong University.
[11] Here is a summary of the applicant's absences from Canada during the relevant period. [Tribunal Record p. 4]
Dates Destination Reasons Duration
94/08/26 - 94/11/04 Hong Kong, US, Vietnam, Taiwan Work 70 days
94/11/06 - 94/12/19 US, Hong Kong, UK, France Work 43 days
94/12/26 - 95/02/10 US, Hong Kong Work 46 days
95/02/11 - 95/04/23 US, Hong Kong, UK Work 71 days
95/04/24 - 95/08/05 UK, Hong Kong, China Work 103 days
95/08/22 - 96/02/10 US, Hong Kong, Malaysia, Taiwan, Work 172 days
China
96/02/12 - 96/03/31 Hong Kong, US, Japan, Korea Work 47 days
96/04/11 - 96/07/14 US, Hong Kong, Taiwan Work 94 days
96/08/15 - 97/02/08 US, Hong Kong, Japan Work 177 days
97/07/14 - 97/07/17 US Work 3 days
97/07/27 - 97/08/14 US Vacation 18 days
97/09/27 - 97/10/13 US, Hong Kong Vacation 16 days
97/11/04 - 97/11/05 US Work 1 day
98/03/15 - 98/03/29 Australia, Hong Kong Vacation 14 days
98/07/17 - 98/07/26 US Vacation 9 days
During the four years prior to her application, the applicant was absent from Canada for a total of 884 days and only physically present for a total 576 days. The applicant was therefore 519 days short of the 1,095 day requirement pursuant to paragraph 5(1)(c) of the Act.
[12] The applicant's 10 year old son, and her husband accompanied her on all her trips abroad.
[13] The applicant transferred her capital from Hong Kong to Canada, purchased a home, furniture and a car in Canada. The applicant prepared her Last Will and Testament in Canada and appointed her only brother, a Canadian citizen, her attorney and executor of her Will. The applicant also paid income taxes on her world wide income in Canada.
[14] The applicant and her son claim to have been involved in the community. The applicant has taken courses at the Seneca College and at the University of Toronto. She enrolled her son in a local Canadian school and various YMCA summer camps. She did some volunteer work with her son's school and with Harmony Movement.
[15] The applicant has the following indicia of residence in Canada:
- Canadian credit cards
- Driver's license
- Social insurance number
- Health cards
- Various membership cards to Canadian cultural societies such as the Art Gallery of Ontario and the library
- Contributes to Canadian investments
- Canadian bank accounts
- Canadian insurance policies
[16] On August 18, 1998, the applicant applied for Canadian citizenship.
[17] On October 26, 1999, the applicant had her interview before Citizenship Judge Wicks.
[18] On January 11, 2000, the Citizenship Judge refused the applicant's application for Canadian citizenship.
Citizenship Judge's decision
[19] In refusing the applicant's application for Canadian citizenship, the Citizenship Judge found that the applicant met all the requirements of the Act with the exception of paragraph 5(1)(c). The Citizenship Judge stated:
Federal Court precedents require that, to establish residence, an individual must show, in mind and in fact, a centralization of his or her mode of living in Canada. If such evidence is established, absences from Canada do not affect this residence as long as it is demonstrated that the individual left for a temporary purpose only and maintained in Canada some real and tangible form of residence. 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. [Emphasis added]
After having considered the evidence that 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.
Issue
[20] Did the Citizenship Judge err in finding that the applicant did not satisfy the residence requirement pursuant to paragraph 5(1)(c) of the Act?
Analysis
[21] This Court has established that the standard of review to be applied in reviewing a Citizenship Judge's decision under subsection 14(5) of the Citizenship Act is one nearing correctness with some deference owed to the special knowledge and experience of the Citizenship Judge. Mr. Justice Lutfy, as he then was, describes the applicable standard in Lam v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 177 (T.D.) as follows:
[33] Justice and fairness, both for the citizenship applicants and the Minister, require some continuity with respect to the standard of review while the current Act is still in force and despite the end of the de novo trials. The appropriate standard, in these circumstances, is one close to the correctness end of the spectrum. 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 is to this extent that some deference is owed to the special knowledge and experience of the citizenship judge during this period of transition.
[22] The history of the jurisprudence of this Court in dealing with citizenship appeals with regards to residence requirements, may be perceived as falling into two or more classifications. Mr. Justice MacKay in Singh v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 786 at paragraph 10 describes these classifications, succinctly, as follows:
...One of those treats residence under the Act, which is not defined by the statute, as virtually meaning physical presence, so that counting of days of physical presence in Canada has considerable significance. Another, based upon the decision of Mr. Justice Thurlow in Re Papadogiorgakis [1978] 2 F.C. 208 (T.D.) recognizes "residence" as the equivalent of having centred one's life in a place, to which one habitually returns, and once that is established in Canada the days of absence from the country, while not unimportant, do not, in themselves, have significance for determining residence, unless absence indicates the intent to abandon a residence earlier established in Canada.
[23] Madam Justice Reed in Re Koo, [1993] 1 F.C. 286 (T.D.) listed those factors which she felt would point to sufficient attachment to Canada to justify the granting of citizenship, even if the periods of absence exceed the statutory maximum. The Re Koo reasons is at times referred to as the third classification of jurisprudence by members of this Court.
[24] In Lam, supra, at paragraph 14, Lutfy J., as he then was, suggests that it is open to the Citizenship Judge to adopt either one of the conflicting classifications of jurisprudence, and if the facts of the case were properly applied to the principles of the chosen approach, the decision of the Citizenship Judge would not be wrong. His Lordship stated in part at paragraph 33.
... 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.
[25] In the present case, the applicant contends that the Citizenship Judge erred by failing to outline which approach or line of jurisprudence she followed in refusing the application. I have concluded that it is clear from her reasons that the Citizenship Judge applied the test or approach set out by Mr. Justice Thurlow in Re Papadogiorgakis, supra. In her reasons, the Citizenship Judge made it quite clear that to meet the residence requirement in paragraph 5(1)(c) of the Act, an individual had to show a centralized mode of living in Canada.
[26] There is no evidence to support the applicant's contention that all of the evidence submitted was not considered by the Citizenship Judge. I agree with my colleague Mr. Justice Blais in Cheng v. Canada (Minister of Citizenship and Immigration) at paragraph 17 where it is stated:
...The Citizenship judge is presumed to have taken into consideration all the evidence submitted. It would be too onerous a task to mention every piece of evidence submitted either written or during the interview.
The Citizenship Judge in her reasons explicitly states that she "...considered the evidence that I received both by way of testimony and documentation." I therefore apply the presumption that all of the evidence was taken into consideration.
[27] I am also of the view that the Citizenship Judge did not err by failing to take into account, if indeed she did not, the fact that the applicant spent all of her time in Canada since her application for citizenship was made. The wording of paragraph 5(1)(c) of the Act requires that the calculation of time for residency be for the period that immediately precedes the start of the application. As Mr. Justice Rothstein stated in Canada (Secretary of State) v. Yu, [1995] F.C.J. No. 919, the relevant period is prescribed by law and is not something that may be ignored.
[28] The applicant cites the following passage from Reed J., in Ref. Jing Yang Justin WANG v. MCI (1999) (T-1881-98), at paragraph 10:
If the events subsequent to a person's application for citizenship cast light on the quality of the person's connection with Canada at the earlier time, then, those events are relevant to the citizenship judge's evaluation, and the citizenship judge cannot be faulted for taking them into account.
This passage states that a citizenship judge can take this evidence into account if it is relevant, i.e. if it casts light on the quality of the person's connection with Canada at the earlier time. However, it does not say that a citizenship judge errs if he or she does not take into account events that occurred after the application for citizenship has been made. Furthermore, in the case at bar, it is my opinion that the fact that the applicant has spent more time in Canada since her application does not change the fact that she had not "centralized her mode of living in Canada prior to her application". Hence, it does not cast light on the applicant's connection with Canada prior to her application.
[29] I can see no error in the way the Citizenship Judge applied the facts in the case at bar to the chosen test. The applicant was only physically present in Canada for a total of 576 days. Her husband and son travelled with her during these extended periods of time despite the fact that her son was enrolled in school in Canada. From August 26, 1994 to February 8, 1997, the applicant and her immediate family spent only 72 days in Canada and were absent for a total of 823 days. The pattern of physical presence in Canada seems to indicate that the applicant was merely visiting the country. Between most of her business trips, she would touch base in Canada for only a few days at a time. In my opinion, the Citizenship Judge did not err in finding that the applicant did not establish a centralized mode of living in Canada.
[30] Having found that the Citizenship Judge implicitly identified the test set out in Re Papadogiorgakis by Mr. Justice Thurlow, I am satisfied that the Citizenship Judge's reasons demonstrate an understanding of the case law, and that she appropriately applied the facts to the test she chose. I am mindful of the "relative expertise" of the Citizenship Judge and I adopt the analysis of Mr. Justice Lutfy in Lam, supra, and his conclusion at paragraph 31, that 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.
Conclusion
[31] In my opinion, the Citizenship Judge did not err in determining that the applicant did not meet the residence requirements prescribed under paragraph 5(1)(c) of the Citizenship Act.
[32] For the above reasons the appeal will be dismissed.
ORDER
THIS COURT ORDERS that:
1. The appeal is dismissed.
"Edmond P. Blanchard"
Judge
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