Canada (Minister of Citizenship and Immigration) v. Sze, docket T-542-99

Date: 20000309

Docket: T-542-99

BETWEEN:

    

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION

     Appellant

     - and -

     YAN YAN SZE

     Respondent

     REASONS FOR ORDER

BLAIS, J.

INTRODUCTION

[1]      This is an appeal by the Minister of a decision of a Citizenship Judge dated 25 January 1999 granting the respondent"s application for citizenship. It is alleged by the appellant that the Citizenship Judge failed to have regard for the residency requirements under paragraph 5(1)(c) of the Citizenship Act .

FACTUAL BACKGROUND

[2]      The respondent, Mr. Sze, came to Canada from Hong Kong with his family. They were landed in Canada on 5 February 1994. Almost immediately upon his arrival, he went to a boarding school in the United States. After graduating from high school, he continued his studies at Tufts University in the United States.

[3]      During the four years in question, the respondent was absent from Canada for 585 days fewer than the required 1095 days of residence. Of his days absent from Canada, 48 days were spent in Hong Kong, visiting his parents. The remaining days were spent in the United States, in full-time attendance at school. Prior to leaving for school, the respondent obtained a returning resident permit from the Department of Citizenship and Immigration. He was in the United States on a student permit.

[4]      The respondent"s parents apparently returned to Hong Kong in 1996. His sister remains in Canada and lives in the home owned by the respondent.

[5]      The respondent has a number of external indicia of residency, such as British Columbia car registration, a home owned in Canada, bank accounts, numerous credit cards and memberships in video clubs.

[6]      The respondent made an application for citizenship dated 22 December 1997. The decision of the Citizenship Judge was made 25 January 1999, granting the respondent"s application for citizenship.

ISSUES

[7]      The issue in this appeal by the Minister is whether the Citizenship Judge erred in finding that the respondent had satisfied the residence requirements of the Citizenship Act notwithstanding the fact that the respondent was physically present in Canada for only 510 days in the four years preceding the application for citizenship.

ANALYSIS

     Standard of review

[8]      The appellant Minister argues that the Citizenship Judge erred in finding that the respondent satisfied the residency requirements of the Act. There is no alleged error of facts, as no party disputes the factual findings of the Citizenship Judge. The Minister contends that the issue of the respondent"s residence was a question of law, and the standard to be applied is correctness. To support this proposition, the Minister cites Lam v. MCI (1999),164 F.T.R. 177, [1999] F.C.J. No. 410 (T.D. per Lutfy J). The respondent, on the other hand, asserts that it is a question of mixed law and fact and thus should be reviewed on the standard of "reasonableness simpliciter". The respondent also relies on Lam . Neither party did a full Pushpanathan analysis, but in Lam, Lutfy J. (as he then was) considers the Pushpanathan factors and concludes that, in a case where the question is whether a person who has been physically absent for more than one year in the preceding four has satisfied the requirements of the Act is a question of mixed law and fact. Because the decision came at a time of "flux".¹ Lutfy J. declined to depart significantly from the previous standard, which was approaching the correctness end of the deference spectrum. He wrote:

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.

[9]      Based on Lam, it is my respectful opinion that a measure of deference should be accorded to the decision of the citizenship judge, but the standard should not be raised to reasonableness.

THE DECISION UNDER REVIEW

[10]      In the hand-written decision, the citizenship judge wrote:

... Since landing he has been back to Hong Kong only 5 times for a total of 48 days. It appears as though Hong Kong is not his home anymore. The question now is, where is his home? At Tufts University or with his sister here in Richmond B.C.

...

Although the applicant is 585 days short of the required 1095, on the basis of the information in the file & that gained at the hearing I conclude that the applicant"s primary residence is in Canada & that he meets residence requirements per Thurlow. (Emphasis added)

[11]      The "per Thurlow" is presumably a reference to the decision of Thurlow A.C.J. in Re Papadogiorgakis , [1978] 2 F.C. 208. This is one of the leading cases on the determination of residence, and represents one of the three competing lines of jurisprudence. The first line of cases are those which express residence as a simple matter of physical presence in Canada. A long line of decisions by Muldoon J. epitomize this position, including Re Pourghasemia (1993) 19 Imm. L.R. (2d) 259 (T.D.), relied upon by the appellant in this appeal. The respondent cites Re Harry, [1998] F.C.J. No. 189, another decision of Muldoon J. as representative of this genre of cases. The second line of cases follow Papadogiorgakis, a decision of Thurlow A.C.J. which distinguishes residence from strict physical presence in Canada. The third line of cases define residence as a place where the person customarily lives and has "centralized" his or her existence, notwitstanding a temporary presence at another locale. The residence is the permanent place with which one has the closest connection and to which one intends to return. Re Koo , [1993] 1 F.C. 286 (T.D.) is an example of this interpretation of residence.

[12]      The "Thurlow" cases (presumably so-called because it is easier to remember and pronounce than Papadogiorgakis ) define residence, for the purposes of the Act, as the locale where one has centralized their mode of living. In Papadogiorgakis, as was the case here, the applicant for citizenship was found by the citizenship judge to have met all the criteria except for residence. Most of the applicant"s absences from Canada were when he was attending university in the United States. Thurlow A.C.J. wrote:

" 16 A person with an established home of his own in which he lives does not cease to be resident there when he leaves it for a temporary purpose whether on business or vacation or even to pursue a course of study. The fact of his family remaining there while he is away may lend support for the conclusion that he has not ceased to reside there. The conclusion may be reached, as well, even though the absence may be more or less lengthy. It is also enhanced if he returns there frequently when the opportunity to do so arises. It is, as Rand J. appears to me to be saying in the passage I have read, "chiefly a matter of the degree to which a person in mind and fact settles into or maintains or centralizes his ordinary mode of living with its accessories in social relations, interests and conveniences at or in the place in question".

" 17 Applying this somewhat broader interpretation to the facts of the present case, I am of the opinion that the appellant was, throughout the material time, that is to say, from May 1974 to December 1976 resident at the home of his friends at Tusket Nova Scotia. He did not own the property but it was there that he centralized his mode of living in May of 1974. It was there that he lived throughout the remainder of 1974 and the year 1975. In no ordinary sense could his presence there in that period be called a "stay" or a visit. And when, in 1976, he left to go to university, he did so only for the temporary purpose of pursuing his studies. He did so without closing out or breaking the continuity of his maintaining or centralizing his ordinary mode of living there. He took with him what he needed for the purpose of his stay in Massachusetts, but left the remainder of his belongings at the home where he had been living. And he returned there at frequent intervals for weekends and for the Christmas and summer breaks. He returned there as well when his courses were concluded. As it appears to me his mode of living was centralized there and had been centralized there for more than a year and a half before he began his courses at the university and it did not cease to be centralized there while he was at the university. In my view, it continued in all respects as before, subject only to the necessity of his absence therefrom for the temporary purpose of pursuing his studies.

" 18 My conclusion is, therefore, that the appellant meets the residence requirement of paragraph 5(1)(b) of the Act and that his appeal succeeds.

[13]      Counsel for the Minister contends that the case of Mr. Sze can be distinguished from Papadogiorgakis. It is argued that Thurlow A.C.J. meant that temporary absences such as attendance at school should only be counted as residence when the applicant has become fully established in Canada before leaving the country. In this case, it is pointed out that the respondent only had a few weeks in Canada before going to boarding school in the United States. To reinforce this position, the Minister cites MCI v. Fai Sophia Lam, [1999] F.C.J. No. 651, 166 F.T.R. 308 (T.D.), a decision of Mr. Justice Simpson. In this case, the applicant for citizenship had not "centralized her mode of living" in Canada prior to leaving the country to attend school. Simpson J. wrote:

" 8 The Citizenship Judge relied on the case of Papadogiorgakis , [1978] 2 F.C. 208 (T.D.). However, in my view, it is a case which presented an exceptional situation and therefore should be confined to its facts. In that case, a student who had almost no physical presence in Canada during the relevant four-year assessment period, had lived here for four prior years and had established a centralized mode of living in Canada prior to departing for study abroad. Further, during his absence he maintained a Canadian residence, returned regularly, and took most of his holidays in Canada.

" 9 The Papadogiorgakis decision indicates that the Court may treat a student as a resident, despite substantial physical absence, if that student established and maintained residence in Canada by centralizing his or her mode of living in Canada, and was abroad only for temporary studies and returned frequently.

" 10 However, Papadogiorgakis is not authority for the proposition that a student can come to Canada for a short time, not establish initial residence, then spend long periods of study and vacation abroad and, on that basis, expect to meet the residence requirement for Canadian citizenship. I should observe that establishing residence is not only a matter of assembling the usual paperwork associated with residence (health card, social insurance card, bank card, tax returns, library card, driver's license, etc.), In my view, some effort to integrate into and participate in Canadian society is also necessary. This could occur in a workplace, in a volunteer group, or in a social or religious activity, to name just a few possibilities.

[14]      The respondent argues that there are other factors, which were before the citizenship judge, which show a "genuine attachment to Canada" as expressed in Chan v. MCI , [1998] F.C.J. No. 1796 by Wetston J. The respondent quotes the following passage from Chan and asserts that the respondent satisfied all the criteria for demonstrating attachment to Canada:

" 9 In my opinion, where physical presence is minimal, the most important consideration is the quality of the applicant's attachment to Canada. There must be evidence to show a genuine attachment to Canada. This attachment must go beyond having only connections to family located in Canada, a Canadian driver's license or a social insurance number.

" 10 There are a number of considerations which may serve to highlight this attachment. Did she make substantial efforts to return to Canada during breaks? If not, why not? For example, did she return to Canada during summer breaks and obtain summer employment or do community work in Canada? In the course of those visits, did she engage in activities which would further her integration into Canadian society? For example, did she join a social club, athletic club, church group or take a course or program? Did she make a reasonable effort to determine if alternate programs existed in Canada which could satisfy her educational goals and to enrol in those programs?

" 11 In summary, the appellant must establish residence in Canada in mind and in fact. She must have centralized her mode of living in Canada.

[15]      The Minister argues that it was Parliament"s intent that physical presence in Canada be an important factor in the consideration of an application for citizenship. She also points to a trend in the jurisprudence toward placing greater emphasis on physical presence as a determinant of residence.

ANALYSIS AND OPINION

[16]      In my respectful opinion, the outcome of this case depends upon the standard of review to be applied to the decision of the Citizenship Judge and the degree to which the decision accords with the jurisprudence of this Court.

[17]      The Citizenship Judge only refers to one case, "per Thurlow". In my opinion, this does not satisfy the "clear reasons"² called for by Lutfy J. in Lam. This lack of clarity in reasoning is a factor that, in my opinion, reduces the deference to be accorded to the decision.

[18]      Mr. Justice MacKay, in Singh v. MCI, [1999] F.C.J. No. 786 at para. 11 (T.D.) has explained Lam to mean that under the correctness standard of review, a reviewing court must examine a citizenship judge"s decision, determine which of the three branches of jurisprudence it purports to follow and then determine if it correctly applied the law as expressed in the particular portion of the jurisprudence. In my opinion, it is clear that the Citizenship Judge chose the Papadogiorgakis branch and applied it.

[19]      A list of factors were considered by the Citizenship Judge, many of which would be favourable to the respondent, based upon the "genuine attachment" analysis from Chan argued for by the respondent. The Citizenship Judge, however, did not cite any jurisprudence for this analysis.

[20]      The respondent was physically present for a very short period of time in Canada. He has a house in Canada, but it cannot be said that he has lived in it as his home for any significant amount of time. His only family in Canada is his sister. He did not have any time in Canada before going to the United States to establish a centralized mode of living here, nor a genuine attachment. His involvement in the community in Canada has been limited and his external indicia of residence (health card, driver"s license, credit cards) are not sufficient to show particularly strong ties.

[21]      Based on the record before the Citizenship Judge, I am not convinced that the respondent intends to permanently return to Canada after completing his studies. In my view, his application for citizenship is premature.

[22]      The respondent has not demonstrated that he has centralized his mode of living here in Canada before going to United States where he lives most of the time.

[23]      In my view, the Citizenship Judge has made a reviewable error, and this Court should intervene.

[24]      For those reasons, the Appeal is allowed. The decision of the citizenship judge dated January 25^th, 1999 is quashed. The respondent may make a new application for citizenship at the appropriate time.

                             (Sgd.) "Pierre Blais"

                                 Judge

March 9, 2000

Vancouver, British Columbia

     FEDERAL COURT OF CANADA

     TRIAL DIVISION

     NAMES OF COUNSEL AND SOLICITORS ON THE RECORD

COURT FILE NO.:      T-542-99

STYLE OF CAUSE:      MCI

     v.

     Yan Yan Sze

PLACE OF HEARING:      Vancouver, British Columbia

DATE OF HEARING:      March 9, 2000

REASONS FOR ORDER OF      Blais, J.

DATED:      March 9, 2000

APPEARANCES:

Mandana Namazi      For the Applicant

Paul Albi

Luciana Brasil      For the Respondent

SOLICITORS OF RECORD:

Morris Rosenberg

Deputy of Attorney

General of Canada      For the Applicant

Davis & Company

Barristers & Solicitors

Vancouver, BC      For the Respondent

__________________

¹      The period of "flux" referred to is the transition period where both the Citizenship Act and the rules of review are being changed. At the time of Lutfy J."s decision, the 1998 Rules had recently come into force and citizenship appeals were no longer trials de novo . In addition, significant changes to the Citizenship Act had been introduced in Parliament. These changes died on the order paper in Parliament and have been reintroduced this sitting. For all itents and purposes, we are in the same state of "flux" as was Lutfy J.

²      "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."