Date: 20000113
Docket: T-1211-98
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
CHEN HSIU MEI WU
Respondent
REASONS FOR ORDER AND ORDER
PELLETIER J.:
[1] This is an appeal by the Minister from the decision of a Citizenship Judge finding that the applicant was eligible for Canadian citizenship. The issue is the residency requirement.
[2] The facts are relatively straightforward. The respondent, her husband and her children arrived in Canada as permanent residents on September 10, 1991. They acquired all of the formal indicia of residence such as bank accounts, social insurance numbers, driver"s licenses, etc. They rented accommodation for a period of time but purchased their own home in June 1993. In 1996, the home was sold and they have lived in rented accommodation since then. They moved their household goods from Taiwan to Canada and have, in addition, acquired a quantity of household goods. Mrs. Wu was physically present in Canada, without interruption, from the date of landing to July 16, 1993, a period which is just short of two years.
[3] Beginning in 1993, Mrs. Wu began to absent herself from Canada for increasingly lengthy periods of time. The list of her absences is set out below:
| Y/M/D Y/M/D Destination Reasons Absent |
| 93/07/16 93/08/27 Taiwan Visit relatives and 42 |
| 94/03/26 94/05/03 Taiwan Visit relatives and 38 |
| 94/09/23 95/01/13 Taiwan Visit relatives and 112 |
| 95/04/10 95/09/22 Taiwan Visit relatives and 165 |
| 95/10/27 96/01/23 Taiwan Visit relatives and 88 |
| 96/04/25 96/10/08 Taiwan Visit relatives and 166 |
| U.S.A. Visit sister-in-law and |
| 96/10/25 97/02/10 Taiwan Visit husband, relatives 108 |
| 97/02/26 97/07/15 Taiwan Visit husband, relatives 139 |
| Singapore _______________ |
[4] The application record contains a copy of her husband"s application for citizenship which discloses that he was absent for even greater periods of time than she was; a comparison of their respective periods of absence shows that they were frequently absent together. In the meantime, the applicant"s children were in Canada attending school.
[5] According to a letter from Mrs. Wu"s former lawyer, Mrs. Wu and her husband made two applications for citizenship prior to the present application. One was apparently declined on the basis of residence and another seems to have gone astray. This application was made July 18, 1997 which means that the period for the calculation of residence commenced July 18, 1993. In that period of time, Mrs. Wu was absent from Canada for 858 days and present for 602 days. She was 493 days short of the statutory requirement of 1095 days in the four years preceding the date of application.
[6] The reasons given for the absences are that Mrs. Wu was away to visit family and friends in Taiwan and to look after her father who suffered a head injury. Her former lawyer wrote that her father was physically weak and sick since his head injury in 1990. It is apparent that some of the absence was related to accompanying her husband on his business trips.
[7] I am satisfied that in the 2 years following her arrival in Canada, Mrs. Wu established her residence in Canada. The issue is whether she maintained that residence during the 4 year period preceding her application so that her periods of absence do not count against her.
[8] Mr. Waldman, Mrs. Wu"s current counsel, characterized the issue as one of standard of review. He referred to the decision of my brother Lutfy J. in Lam v. M.C.I [1999] F.C.J. 410 where the standard of review was characterized as being nearer to the correctness end of the scale than not. This is not judicial review of the Citizenship Judge"s decision but a statutory appeal. The Rules require it to be brought by Notice of Application but the nature of the exercise is defined by the statute and not by the Rules. Even on an appeal however, a court ought not simply to substitute its opinion for that of the original tribunal where that tribunal has relative expertise and is acting within the scope of its expertise. Canada v. Southam Inc. [1997] 1 S.C.R. 748. On appeal, the Court is able to intervene apart from cases of jurisdictional error (which is often expressed in terms of a decision being patently unreasonable) but ought not to interfere simply because it would have come to a different conclusion (which is often expressed as the correctness test). In Southam, Iaccobucci J. identified this middle ground as reasonableness. In other words, where a specialized tribunal is acting within its area of relative expertise, a court to whom a statutory appeal lies ought not to interfere with the tribunal"s decision if the decision is a reasonable one.
[9] In Lam, Lutfy J. found that the relative expertise of the Citizenship Judge in assessing whether the residence requirement had been met was not so great as to merit that degree of deference to which a truly specialized tribunal would be entitled. He therefore found that the standard of review was closer to the correctness end of the scale, though he still allowed for some measure of deference.
[10] One factor which significantly undermines the assertion of particular expertise on the part of Citizenship Court is the use of a rote formula to describe the results of a judge"s inquiry into the question of residence. In this file, as in many others, the Judge"s decision on the residence issue is a "fill-in-the-blanks" form the operative portions of which are as follows:
| After considering the residence questionnaire and other items and documentation submitted and through credible declaration of intent and the facts presented by the applicant at the hearing, I have concluded that the applicant has established a residential base at ______________________ and a centralised mode of living in Canada on _______________ and the applicant has continued to maintain a residential base and a centralised mode of living in Canada and that during such temporary absences the applicant had no intention of residing in any country other than Canada. |
| [space for handwritten comments] |
| I have decided that the applicant ___________________ fully meets the residence requirements of section 5 (1) c) of the Act and within the framework outlined by Associate Chief Justice Thurlow (as he then was) in Re: Papadogiorgakis No. T-872-78 |
| I have therefore approved the application. |
[11] Where no reasons are given, or where reasons are very brief, this form is the only indication of the judge"s reasoning. In this case, the Judge filled in the blanks by inserting the appellant"s name, her date of landing, an address at which she has not resided since 1993, and a handwritten notation in the empty portion of the form:
| - to visit relatives and friends in Taiwan |
| - to attend family weddings |
[12] The Court is given no indication as to how an absence from Canada for 58% of the 4 years preceding the application is justified by visiting relatives and friends and attending family weddings. There is no reference to the appellant"s aged father, nor to her husband"s business travel.
[13] In Lam, Lutfy J. identified the field within which deference operates:
| 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 section 5 (1) c), the reviewing judges ought not to substitute arbitrarily their different opinion of the residency requirement. |
There are no clear reasons demonstrating an understanding of the case law with respect to Mrs. Wu"s application. There are draft reasons in the record which deal with Mr. Wu"s application which are more expansive but which do not assist in understanding the decision in this appellant"s case.
[14] In the end result, it is my view that the appeal should be allowed. While it is clear that the applicant established residence, it is not obvious that she maintained it. The factors which suggest a weakening of ties with Canada are the increasing length of the periods of absence, a diminishing of the physical connection with Canada by the sale of the family residence, the fact of leaving teenage children behind to attend school on their own. All of these suggest that Mrs. Wu"s mode of living was centralized elsewhere, not in Canada, and that her return to Canada was more in the nature of a visit to her children than it was a resumption of her life in Canada. Had the Citizenship Judge addressed these issues, I would have been reluctant to interfere with his decision but in the absence of meaningful reasons, I believe the appeal should be allowed.
ORDER
[15] For the foregoing reasons the appeal is allowed.
"J.D. Denis Pelletier"
J.F.C.C.
TORONTO, ONTARIO
January 13, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
- and -
CHEN HSIU MEI WU
| DATE OF HEARING: THURSDAY, JANUARY 13, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
REASONS FOR ORDER
| AND ORDER BY: PELLETIER J. |
DATED: THURSDAY, JANUARY 13, 2000
| APPEARANCES: Ms. Marissa Bielski |
| SOLICITORS OF RECORD: Morris Rosenberg |
| Deputy Attorney General of Canada |
| Jackman, Waldman & Associates |
Barristers & Solicitors
281 Eglinton Ave. East
Toronto, Ontario
M4P 1L3
FEDERAL COURT OF CANADA
Date: 20000113
Docket: T-1211-98
Between:
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
Applicant
- and -
CHEN HSIU MEI WU
Respondent
REASONS FOR ORDER
AND ORDER
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