Lin v. Canada (Minister of Citizenship and Immigration), 2002 FCT 346

Date: 20020327

Docket: T-996-01

Neutral citation: 2002 FCT 346

Ottawa, Ontario, Wednesday the 27^th day of March 2002

PRESENT:      The Honourable Madam Justice Dawson

BETWEEN:

                                                            CHIH SHENG LIN

                                                                                                                                             Appellant

                                                                         - and -

                       THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                          Respondent

                                          REASONS FOR ORDER AND ORDER

DAWSON J.

[1]                 The appellant, Mr. Lin, appeals from a decision of a Citizenship Court Judge dated March 28, 2001 wherein the Judge did not approve Mr. Lin's application for a grant of Canadian citizenship.

[2]                 The issue raised on this appeal is whether the Judge erred in determining that Mr. Lin failed to comply with the requirements of paragraph 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29 ("Act"). Paragraph 5(1)(c) of the Act provides:

[3]                 The relevant facts, briefly stated, are that Mr. Lin landed in Canada as a permanent resident, accompanied by his wife and three children, on August 22, 1996. His mother, sister and two brothers remained resident in Taiwan. Mr. Lin completed a citizenship application on August 22, 2000, which was received by the responsible Minister on or about September 11, 2000.

[4]                 The period of time that can be counted towards Mr. Lin's residence in Canada is therefore from August 22, 1996 to August 22, 2000, a period of 1,460 days. From the information which Mr. Lin provided, his physical time in Canada totalled 685 days. The time absent totalled 775 days. Therefore, there was a shortfall of 410 days from the 1,095 days required by the Act.

[5]                 The reasons provided for the periods of absence were that Mr. Lin needed time to dispose of property after moving to Canada, he had promised to train his sister and brother to manage the business which he had sold to them, his mother demanded his presence in Taiwan, and he was developing sources of supply for a new trading company he had established in Canada, but which was not progressing as well as he had hoped.

[6]                 Mr. Lin was interviewed by the Citizenship Court Judge on March 5, 2001. On March 28, 2001, the Judge rendered his negative decision.

[7]                 In a document entitled "Reasons for Decision Regarding Residence", the Judge wrote that in determining whether Mr. Lin had demonstrated that Canada is the country in which he has centralized his mode of existence, the Judge considered the questions posed by Justice Reed in Re: Koo, [1993] 1 F.C. 286 [T.D.]. The Judge then went on to address the following questions:

1.          Was the individual physically present in Canada for a long period prior to his first absence?

2.          Where are the applicant's immediate family and dependents (and extended family) resident?

3.          Does the pattern of physical presence in Canada indicate a returning home or merely visiting the country?

4.          What is the extent of the physical absence?

5.          Is the physical absence caused by clearly temporary situation?

6.          What is the quality of the connection with Canada? Is it more substantial than that which exists with any other country?

[8]                 Mr. Lin's counsel asserted in oral argument two errors on the part of the Judge. First, that the Judge did not properly apply the principles articulated in Koo, supra. Rather, it was said, the Judge dismissed in a glib fashion "passive" indicators of residence such as tax records, health records, and bank statements, and did not list all of the indicators relied upon by Mr. Lin, omitting such things as charitable contributions and disability insurance.

Second, the Judge's handwritten notes of the interview, written on a questionnaire which set forth the Koo criteria, did not appear responsive to the criteria or were blank.

[9]                 A decision of a Judge of the Citizenship Court on the proper interpretation of paragraph 5(1)(c) of the Act is to be reviewed on the standard of correctness. This test was refined by Justice Lutfy, as he then was, in Lam v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 177 (F.C.T.D.) at paragraph 33 as follows:

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 are not to substitute arbitrarily their different opinion of the residency requirement.

[10]            In my view there is no indication in the present case that the Judge did not properly apply the test set out in Koo.

[11]            The Citizenship Judge correctly identified the principles articulated in Koo. I am not prepared to draw any conclusion from the rough handwritten interview notes of the Judge, but rather have analysed his completed document entitled "Reasons for Decision Regarding Residence". The facts there recited by the Citizenship Judge were capable of supporting the Judge's conclusion that Mr. Lin had not centralized his life in Canada.

[12]            The Judge was not obliged to cite every piece of evidence proffered by Mr. Lin, and I do not find that the Judge improperly characterized or weighed passive indicators of residence.

[13]            For these reasons, the appeal will be dismissed.

[14]            Having so decided, I make the following additional comment.

[15]            The preponderance of the current jurisprudence of this Court with respect to citizenship appeals applies the decision of Justice Lutfy in Lam, supra, and more particularly his comment at paragraph 14 that:

[...] it is open to the citizenship judge to adopt either one of the conflicting schools [of jurisprudence concerning residence] in this court 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.

[16]            It is important to recognize that in so writing Justice Lutfy premised his views on the fact that what was then Bill C-63 proposed enactment of a new Citizenship of Canada Act intended to clarify the residency requirement. His reasons referred, therefore, to a "period of uncertainty", "a unique period of likely transition" and to a standard of review applicable "while the current Act is still in force and despite the end of the de novo trials."

[17]            However, the newly enacted but not yet proclaimed Immigration and Refugee Protection Act, S.C. 2001, c. 27 in subsection 228(1) simply amends paragraph 5(1)(c) of the Act as follows:

[18]            Therefore, the state of transition relied upon and referred to by Justice Lutfy no longer exists.

[19]            There can be no more than one correct interpretation of paragraph 5(1)(c) of the Act. I respectfully echo the comments of Justice Nadon, as he then was, in Chen v. Canada (Minister of Citizenship and Immigration) 2001 FCT 1229; [2001] F.C.J. No. 1693 that justice and fairness will no longer be achieved by the approach suggested in Lam, supra.

[20]            It is fundamentally unfair that two persons may apply for citizenship on identical facts and yet obtain opposite results depending upon whether the principles in Re: Pourghasemi (1993), 19 Imm. L.R. (2d) 259 (F.C.T.D.) or in Re: Papadogiorgakis, [1978] 2 F.C. 208 (F.C.T.D.) are applied.

[21]            This situation can only be remedied by Parliament clearly expressing its will with respect to the residence requirement.

ORDER

[22]            IT IS HEREBY ORDERED THAT:

1.          The appeal is dismissed.

"Eleanor R. Dawson"

                                                                                                                                                    Judge