Docket: T-1586-10
Citation: 2011 FC 844
Vancouver, British Columbia, July 7, 2011
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Applicant
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and
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ZHAO ZHANG
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
appeal by the Minister of Citizenship and Immigration (the Minister) pursuant
to subsection 14(5) of the Citizenship Act, RSC 1985, c C-29 [Citizenship
Act], from the decision of a citizenship judge, dated August 4, 2010,
granting the respondent citizenship, on the basis that the citizenship judge
erred in finding that the respondent had met the residency requirement under
paragraph 5(1)(c) of the Citizenship Act.
I. Background
[2]
The
respondent is a citizen of China. On March 1, 1999, she entered Canada and was
landed as a permanent resident. She submitted her application for Canadian
citizenship on May 6, 2008. On July 7, 2010, the respondent appeared
before the citizenship judge and on August 4, 2010, he approved her
application.
II. Decision
under Appeal
[3]
Without
explicitly referring to it, the citizenship judge applied the qualitative test for
residence set out by Justice Barbara Reed in Re Koo (1992),
[1993] 1 FC 286, 59 FTR 27 [Koo], asking himself whether Canada was the
country in which the respondent had centralized her life and answering that
question in the affirmative. He found that the respondent spent substantial
time in Canada before the relevant four-year period, that her absences were
exclusively caused by her husband’s employment in Japan, noting that she is
Chinese and has no other ties to Japan. He also noted that her husband and her
two daughters are Canadian, and that she had a third daughter who was deceased
who had lived in Canada.
[4]
The
citizenship judge also based his conclusion on the fact that the respondent had
investments, a car, and insurance in Canada, and on the fact that
the respondent had a British Columbia driver’s licence, a local bank account, a
Nanaimo park and
recreation membership, etc. He also took into account her efforts to qualify in
Canada as a
chartered accountant, the fact that her husband’s company was Canadian, and her
involvement with different organizations in Nanaimo.
III.
Issue
Did the citizenship judge err in finding
that the respondent met the residence requirement set out in paragraph 5(1)(c)
of the Citizenship Act?
IV. Analysis
[5]
The
residence requirement set out in paragraph 5(1)(c) of the Citizenship
Act requires an applicant to have accumulated at least three years of
residence in Canada during the four years immediately preceding the date of his
or her application:
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Grant of citizenship
5. (1) The Minister shall grant citizenship to any person
who
…
(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;
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Attribution de la citoyenneté
5. (1) Le ministre attribue la
citoyenneté à toute personne qui, à la fois :
…
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;
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[6]
The
meaning of the word “residence” has been interpreted by this Court in a number
of ways. Associate Chief Justice Arthur Thurlow in Re Papadogiorgakis,
[1978] 2 FC 208, 88 DLR (3d) 243 (TD) [Papadogiorgakis] held that a
person who had “centralized his mode of living in Canada” could leave for
periods of time and still be regarded as having been resident in Canada for the
purposes of the Citizenship Act. On the other hand, in Re Pourghasemi
(1993), 62 FTR 122, 19 Imm LR (2d) 259 (TD) [Pourghasemi], Justice
Francis Muldoon interpreted the residence requirement more narrowly as
requiring the applicant to have been physically present in Canada for at least
three of the four years prior to the application. In Koo, above, Justice
Reed described the appropriate test as being, “whether it can be said that Canada is the place
where the applicant ‘regularly, normally or customarily lives’”. She set out
six non-exhaustive questions to assist in answering this question.
[7]
Although
it is sometimes said that there are three tests for residence, the Papadogiorgakis
test, the Pourghasemi test and the Koo test, as Justice
Richard Mosley recently pointed out in Hao v Canada (Minister of Citizenship
and Immigration), 2011 FC 46 at para 19, “there are effectively only two: strict
physical presence or residency as determined by the Koo qualitative
factors.”
[8]
In
the current case, the Minister did not argue that the citizenship judge erred
in applying the wrong test to determine residence – i.e. he did not argue that
the quantitative physical presence test should have been applied, as opposed to
the qualitative test from Koo. Indeed, in Lam v Canada (Minister of
Citizenship & Immigration) (1999), 164 FTR 177, 87 A.C.W.S. (3d) 432
(TD) [Lam], Justice Lutfy held that it was open to the citizenship judge
to apply either of the tests, so long as the chosen test was applied properly.
While there has been some recent disagreement on the question of whether or not
more than one test is permissible (Justice Robert Barnes in El Ocla v Canada
(Minister of Citizenship and Immigration), 2011 FC 533 [El Ocla] and
Justice James O’Reilly in Dedaj v Canada, 2010 FC 777, 90 Imm LR (3d)
138 found that the qualitative Koo test was the correct test to
apply, while Justice Donald Rennie in Martinez-Caro v Canada (Minister of
Citizenship and Immigration), 2011 FC 640 found that the
quantitative Pourghasemi test was the correct test to apply), it
is not necessary for me to address this issue on the current appeal.
[9]
The
Minister’s argument in the current case was simply that the citizenship judge
erred in the way that he applied the qualitative Koo test. This is a
question of mixed fact and law to which the reasonableness standard of review
ought to be applied (El Ocla, above at para 11). As discussed below, I
find that the Koo test was not reasonably applied in this case and, as
such, it is unnecessary for me to consider the threshold question of whether or
not a different test ought to have been applied.
[10]
As
discussed, the Koo test asks whether it can be said that Canada is the place
where the applicant "regularly, normally or customarily lives". The
six questions that can be asked to assist in this determination were set out by
Justice Reed as follows:
(1)
was the individual physically present in Canada for a long period prior to recent
absences which occurred immediately before the application for citizenship;
(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.
[11]
On
the first question, the Minister points out that the respondent was not, in
fact, physically present in Canada for a long period prior to the relevant four
years and, as such, he argues that the citizenship judged erred by describing
the time she spent in Canada prior to the relevant period as being
“substantial”. He points out that the respondent was, in fact, physically
present in Canada for only
1568 days (or slightly less than 4.5 years) over a period of 11 years.
[12]
I
agree with the Minister that the citizen judge’s treatment of this question is
of particular concern. I note that in the residence questionnaire, the
respondent stated at question 9 that she worked from November 2001 to March
2006 in Tokyo, Japan; this
is almost 3.5 years spent outside of Canada for employment
purposes. Moreover, the table labelled “Zhao Zhang Record of Days stayed inside
Canada,” which was also before the citizenship judge, indicates that the
respondent had spent only 821 days in Canada between her arrival on March 1,
1999 and May 2004, or approximately two years and three months over a five-year
period. I have difficulty understanding how this could be deemed as a
“substantial time in Canada before the four year period.”
[13]
On
the second question, the Minister argues that the citizenship judge failed to
consider the fact that the respondent had no family actually living in Canada:
her daughters were attending school in Japan, her husband was working in Japan,
her parents and brother were resident in China, while her sister was resident
in Seattle.
[14]
I
also agree with the Minister on this point. The citizenship judge mentioned the
fact that the respondent’s daughters were born in Canada, but failed to
consider that they attended school in Japan and that the respondent, at the
time, had no close family in Canada as her parents and brother resided in China
and her sister in Seattle.
[15]
On
the third question, the Minister takes issue with the citizen judge’s
conclusion that the respondent’s pattern of physical presence in Canada indicated a
returning home as opposed to merely visiting the country. The Minister notes
that the respondent worked in Japan from November 2001 until March 2006 and
that most of her trips to Canada coincided with her children’s summer and
Christmas holidays. I agree that this is a concern as well.
[16]
On
the fifth question, I agree with the Minister that the citizenship judge failed
to consider that the respondent’s absences from Canada during the
relevant period were structural in nature and not merely temporary.
[17]
On
the sixth question, the Minister submits that the passive indicia mentioned by
the citizenship judge – such as her driver’s licence, her Canadian investments,
etc. – are insufficient to demonstrate a substantial connection to Canada. According
to the Minister, the citizenship judge should have compared the respondent’s
connection to Canada with her connection to Japan.
[18]
I
agree with the Minister that the mere existence of “passive” indicia such as
income tax returns, medical insurance, bank accounts, are not on their own
sufficient to demonstrate a substantial connection (Hernando Paez v Canada
(MCI), 2008 FC 204 at para. 18).
[19]
Thus, it is clear from the decision that
relevant facts and evidence were not properly assessed by the citizenship
judge.
The conclusion of the citizenship judge that the respondent had centralized her
life in Canada was
unreasonable.
[20]
For these reasons, the appeal must be allowed. The decision of the
citizenship judge is set aside and the respondent’s application for Canadian
citizenship is refused.
JUDGMENT
THIS COURT
ADJUDGES that the appeal is allowed. The decision of the citizenship
judge is set aside and Ms. Zhang’s application for Canadian citizenship is
refused.
“Danièle Tremblay-Lamer”
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