Date: 20100426
Docket: T-1140-09
Citation: 2010 FC 449
Ottawa, Ontario, April 26,
2010
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
HUILING
NIE
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Minister of Citizenship and Immigration (the Minister) appeals, pursuant to
subsection 14(5) of the Citizenship Act, R.S.C. 1985 c. C-29 (the Act),
the Citizenship Judge's decision to approve Ms. Huiling Nie’s October 1, 2008
application for citizenship.
[2]
Ms.
Huiling Nie came to Canada from China in 2000 on a student
visa. She obtained permanent residence status in 2005 and left Canada for a
post-doctoral studies position at Harvard University in the United States
of America
that same year. Her husband and children remained in Canada for a couple
of years while the Respondent studied and worked in the U.S.A.
[3]
The
Respondent applied for citizenship in Canada in 2008 maintaining she intended
to return to work in Canada. She had been physically present in Canada for 346 days
during the four years prior to her citizenship application. The Citizenship
Judge determined the Respondent met the residency requirement based on the test
in Re Koo [1992] F.C.J. 1107 (Koo).
[4]
The
Minister submits the Citizenship Judge erred by considering irrelevant factors
and unreasonably concluded the Respondent met the residency requirements for
citizenship.
[5]
For
the following reasons I allow the appeal and dismiss the Respondent’s
application for citizenship.
DECISION UNDER APPEAL
[6]
The
Judge wrote: “I approve. See KOO [sic] report which I am relying upon but the
Thurlow decision re Papdugiorgakis would however apply as well.”
[7]
In
his reasons for decision regarding residence, the Citizenship Judge considered
her absence from Canada to be temporary because she has been in Canada
since 2000 and is applying for jobs in Canada. The
Respondent impressed the Citizenship Judge. He found her to be devoted to Canada and a likely
credit to Canada’s scientific
and academic communities. He found her indeterminate contract at Harvard,
renewed annually, was to fill the time until “a position equal to her education
and talents is found in Canada.” He added:
“She is as devoted to our country as
anyone I have met. Her whole focus has been in being in Canada whenever possible and in
living and working here in the future. I approve strongly. She has been away
because of educational opportunities only. She is very advanced in her field
(post-doctoral studies at Harvard) and (illegible) and would be a great credit
to Canada and our scientific and
academic communities.”
[8]
In
his consideration of the Koo questions, the Judge wrote:
Was the individual physically present in Canada for a long period prior to recent
absences which occurred immediately before the application for citizenship? -
“Definitely - more than five years with the exception only of brief departures
for conferences and only one month back to China to see family- just before
going to Harvard University”.
Where are the applicant’s immediate
family and dependants (and extended family) resident? - “Her husband and two
children now live in U.S. where applicant studies (post
doctoral studies at Harvard – but were previously here and will be in the
future.”
Does the pattern of physical presence in Canada indicate a returning home or
merely visiting the country? - “It [sic] is always returning home without exception.
Her friends are here and she loves Canada
and much prefers the culture and values of our country to any other.”
What is the extent of the physical
absence? (number of days away from Canada VS number of days present in Canada) - “346 here 869 away”.
LEGISLATION AND
JURISPRUDENCE
[9]
The
Act provides as follows:
|
5.
(1) The Minister shall grant citizenship to any person who
(a)
makes application for citizenship;
(b)
is eighteen years of age or over;
(c)
is a permanent resident within the meaning of subsection 2(1) of the
Immigration and Refugee Protection Act, and has, within the four years immediately
preceding the date of his or her application, accumulated at least three
years of residence in Canada calculated in the following manner:
(i)
for every day during which the person was resident in Canada before his
lawful admission to Canada for permanent residence the person shall be deemed
to have accumulated one-half of a day of residence, and
(ii)
for every day during which the person was resident in Canada after his lawful
admission to Canada for permanent residence the person shall be deemed to
have accumulated one day of residence;
(d)
has an adequate knowledge of one of the official languages of Canada;
(e)
has an adequate knowledge of Canada and of the responsibilities
and privileges of citizenship; and
(f)
is not under a removal order and is not the subject of a declaration by the
Governor in Council made pursuant to section 20.
14 (5)
The Minister or the applicant may appeal to the Court from the decision of
the citizenship judge under subsection (2) by filing a notice of appeal in the
Registry of the Court within sixty days after the day on which
(a)
the citizenship judge approved the application under subsection (2); or
(b)
notice was mailed or otherwise given under subsection (3) with respect to the
application.
(emphasis
added)
|
5.
(1) Le ministre attribue la citoyenneté à toute personne qui, à la fois :
a)
en fait la demande;
b)
est âgée d’au moins dix-huit ans;
c)
est un résident permanent au sens du paragraphe 2(1) de la Loi sur
l’immigration et la protection des réfugiés et a, dans les quatre ans qui ont
précédé la date de sa demande, résidé au Canada pendant au moins trois ans en
tout, la durée de sa résidence étant calculée de la manière suivante :
(i)
un demi-jour pour chaque jour de résidence au Canada avant son admission à
titre de résident permanent,
(ii)
un jour pour chaque jour de résidence au Canada après son admission à titre
de résident permanent;
d)
a une connaissance suffisante de l’une des langues officielles du Canada;
e)
a une connaissance suffisante du Canada et des responsabilités et avantages
conférés par la citoyenneté;
f)
n’est pas sous le coup d’une mesure de renvoi et n’est pas visée par une
déclaration du gouverneur en conseil faite en application de l’article 20.
14(5)
Le ministre et le demandeur peuvent interjeter appel de la décision du juge
de la citoyenneté en déposant un avis d’appel au greffe de la Cour dans les
soixante jours suivant la date, selon le cas :
a)
de l’approbation de la demande;
b)
de la communication, par courrier ou tout autre moyen, de la décision de
rejet.
|
[10]
Section
5(1)(c) requires an Applicant for citizenship to establish residence in Canada
for three of the four years preceding their application; that is at least 1095
days out of 1461 days.
ISSUES
[11]
The
Minister submits the Citizenship Judge committed a number of errors which are:
1. the Citizenship
Judge erred in law by granting the Respondent citizenship based on factors that
are irrelevant to the test in Koo;
2. the Citizenship Judge erred in
law by providing inadequate reasons;
3. the Citizenship Judge erred in
law by ignoring evidence;
4. it was unreasonable
for the Citizenship Judge to conclude that the Applicant met the residency
requirements as the evidence is clear she failed to met this criteria.
[12]
In
my view, the issue is whether the Citizenship Judge erred in his application of
the Koo test.
ANALYSIS
[13]
In
Re Paopadogiorgakis, [1978] 2 F.C.J. 208 (Paopadogiorgakis)
Justice Thurlow had interpreted residence as including situations in which an
applicant for citizenship has a place in Canada which is used to a sufficient
extent to demonstrate the reality of his residing there during the material
period even though he is away. The facts in Paopadogiorgakis involved a
student who had centralized his mode of living in Canada before leaving for
university studies in the U.S.A. The student left the remainder of his
belongings in Canada, came back
at frequent intervals, and, significantly, returned when his studies were
concluded. Judge Thurlow found the student’s absence was for the temporary
purpose of pursuing his studies.
[14]
In
Koo Madam Justice Barbara Reed expanded the view of residency beyond a
strict day count. She found in some cases, applicants establish residency
through their degree of attachment to Canada even when they may not
have been present the minimum number of days. She concluded the residency test
should ask if an applicant for citizenship has centralized their existence in Canada. Justice
Reed provided a set of questions to help determine if an applicant who falls
short of the day count may still satisfy the residency requirement. She stated:
…the test is whether it can be said that Canada is the place where the
applicant "regularly, normally or customarily lives". Another
formulation of the same test is whether Canada is the country in which he or she has
centralized his or her mode of existence. Questions that can be asked which
assist in such a de-termination are:
(1) was the individual physically present
in Canada for a long period prior to
recent absences which occurred immediately before the application for
citizen-ship;
(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
absences - if an applicant is only a few days short of the 1095 day total it is
easier to find deemed residence than if those absences are extensive;
(5) is the physical absence caused by a
clearly temporary situation such as employment as a missionary abroad,
following a course of study abroad as a student, accepting temporary employment
abroad, accompanying a spouse who has accepted temporary employment abroad;
(6) what is the quality of the connection
with Canada: is it more substantial than
that which exists with any other country.
[15]
These
questions have been adapted into a questionnaire used by citizenship judges
when applying the Koo test as was done in this case.
[16]
Justice
Reed cautioned against using this flexible approach to residence to favour
applicants a judge might feel sympathy towards. She insisted the Act be
interpreted consistently so that all applicants are assessed on the same
objective criteria.
[17]
In
the case at hand, the Citizenship Judge concluded the Respondent meets the
requirements of the Koo test relying on subjective and irrelevant
criteria and speculation that reflect his sympathetic impression of her.
However, relevant and objective factors emerging from the evidence undermines
the Respondent’s application.
[18]
The
Citizenship Judge fails to address two vital questions. First, did the
Respondent centralize her mode of existence before leaving for the U.S.A.? Second, was
the quality of her connection with Canada more substantial than
with any other country?
[18]
[19]
The
Respondent attended university in Canada on a student visa; she
lived with her family, rented property and paid taxes from 2000 to 2004 before
leaving for the U.S.A. in 2005. By themselves, these are not strong
indicators of a permanent and centralized mode of existence in Canada. Many
students temporarily establish themselves in the place where they pursue their
studies. The Respondent spent the majority of the relevant four year period,
2004 to 2008, in the U.S.A. pursuing post-doctoral work on a contract
basis at Harvard. The Respondent was offered a position at a Canadian
university, but she turned it down. I find her attendance at Harvard to be a
matter of personal choice rather than necessity. Furthermore, her family has
moved from Canada to join the
Respondent south of the border. Notwithstanding the Respondent’s stated
preference for Canada and Canadian culture, it cannot be said the quality of
her connection to this country is more substantial than it is to the U.S.A.
[20]
I
appreciate the Respondent’s academic aspirations and her admiration of Canada but those
are not the criteria by which citizenship is awarded. Citizenship is awarded
when permanent residents satisfy the requirements of the Act. As a result,
I grant the Minister’s appeal of the Citizenship Judge’s decision.
[21]
The
Minister submits the Respondent’s citizenship application lacks sufficient
evidence to satisfy the residency requirement for citizenship and urges this
Court to dismiss the Respondent’s application instead of referring it back to
be re-heard. I agree. This does not prevent the Respondent from reapplying for
citizenship in the future.
CONCLUSION
[22]
The
appeal is allowed. The Citizenship Judge's decision is set aside and the
Respondent’s application for citizenship is dismissed.
[23]
I
make no order of costs.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1.
The
decision of the Citizenship Judge granting citizenship is set aside.
2.
The
Respondent’s application for Citizenship is dismissed.
3.
I
do not make any award of costs.
“Leonard
S. Mandamin”
Email this Content