Date: 20070606
Docket: T-973-06
Citation: 2007 FC 587
Ottawa, Ontario, June 6,
2007
PRESENT: The Honourable Mr. Justice Blais
BETWEEN:
DONG
BING MA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an appeal under subsection 14(5) of the Citizenship Act, R.S.C. 1995,
c. C-29 (the Act) from the decision of a citizenship judge dated May 9, 2007,
wherein she rejected the applicant’s application for Canadian citizenship.
RELEVANT FACTS
[2]
Mr.
Dong Bing Ma (the applicant) is a 39-year old Chinese citizen, who is married
to a fellow Chinese citizen, Ms. Xiao Qing Chen. They do not have any children or
close relatives in Canada.
[3]
Both
the applicant and his wife came to Canada as landed immigrants from
China in March
1999, under the Investor category, and thus are both permanent residents. The
applicant set up Anfu Enterprises (Canada) Ltd. in June 1999, to promote Canada’s resources
and to develop business ties between China and British Columbia, specifically
in the gas sector. As a result of the applicant’s professional occupation, he
is required to travel extensively to China.
[4]
The
applicant filed his application on October 21, 2003. In his revised table of
absences, the applicant indicated to the citizenship judge that he was absent
from Canada a total of
nine hundred and twenty-one (921) days during the four-year period preceding
his application. Consequently, the applicant was only present in Canada for five
hundred and thirty-nine (539) days during the relevant four-year period. This
is less than fifty per cent (50%) of the one thousand ninety-five (1095) days
required pursuant to paragraph 5(1)(c) of the Act, which states that an
applicant must have accumulated at least three years (1095 days) of residence
during the four years preceding his application, in order to be granted
citizenship. Consequently, the citizenship judge denied the application for
citizenship.
ISSUE
[5]
The
only issue to be considered in this case is whether the citizenship judge erred
in determining that the applicant did not meet the requirements of paragraph
5(1)(c) of the Citizenship Act.
RELEVANT STATUTORY
PROVISIONS
Citizenship Act, R.S.C. 1985, c. C-29
|
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;
|
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;
|
STANDARD OF REVIEW
[6]
In
my opinion,
the proper standard of review for this citizenship appeal is reasonableness simpliciter.
As Justice Richard Mosley held in Zeng v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1752, at paragraphs 9 and 10:
Applying a pragmatic and functional analysis to the review
of the decisions of citizenship judges respecting the residency requirement of
the Act, several judges of this court have recently concluded that a more
appropriate standard would be reasonableness simpliciter: Chen v. Canada
(Minister of Citizenship and Immigration) 2004 FC 1693, [2004] F.C.J. No.
2069; Rasaei v. Canada (Minister of Citizenship and Immigration) 2004 FC
1688, [2004] F.C.J. No. 2051; Gunnarson v. Canada (Minister of Citizenship
and Immigration) 2004 FC 1592, [2004] F.C.J. No. 1913; Canada (Minister
of Citizenship and Immigration) v. Chen 2004 FC 848, [2004] F.C.J. No.
1040; Canada (Minister of Citizenship and Immigration) v. Fu 2004 FC 60, [2004]
F.C.J. No. 88; Canada (Minister of Citizenship and Immigration) v. Chang 2003
FC 1472, [2003] F.C.J. No. 1871.
I agree that the question of whether a person
has met the residency requirement under the Act is a question of mixed law and
fact and that Citizenship Judges are owed some deference by virtue of their
special degree of knowledge and experience. Accordingly, I accept that the
appropriate standard of review is reasonableness simpliciter and that, as
stated by Snider J. in Chen, supra at paragraph 5, "as long as
there is a demonstrated understanding of the case law and appreciation of the
facts and their application to the statutory test, deference should be
shown."
[emphasis
added]
ANALYSIS
[7]
The
applicant suggests that the citizenship judge did not properly review his file
and misapprehended the facts. The applicant also argues that it is unclear from
the decision what factors or what test the citizenship judge considered in
refusing his application.
[8]
The
respondent for his part argues that, in reaching her decision, the citizenship
judge clearly applied the physical presence test for residency established in Re
Pourghasemi, [1993] F.C.J. No. 232 (QL). In accordance with the evidence before
her, she came to the conclusion that the applicant had not been physically present
in Canada for at least
three years out of the four years preceding his application for citizenship. As
such, the respondent maintains that the citizenship judge did adopt one of the
tests for residency endorsed by this Court, and that she did apply that test correctly.
[9]
In
her decision, the citizenship judge stated:
You
were scheduled for a hearing to assess whether you met the residency
requirement of the Citizenship Act. You were accompanied by an interpreter.
Section 5(1)c of the Act requires that within the four years immediately
preceding the date of application, the applicant is to have accumulated at
least three years of residence in Canada. That is, at least 1095 days. On
your original application you declared absences of 879 days with
a physical presence in Canada of 581 days, which does not
comply with the residency requirement.
[emphasis
added]
[10]
In
my view, this paragraph shows that the citizenship judge had a good
understanding of the statutory residency requirements, as per the decision of Justice
Francis Muldoon in Re Pourghasemi, above, and that she appreciated the
evidence before her in applying this test, which requires a strict interpretation
of the word “residence”, as found at paragraph 5(1)(c) of the Act. In
applying the residency test as set out in Re Pourghasemi, above, the citizenship
judge must determine whether the applicant has been physically present in Canada for the required number
of days. In other words, physical presence in Canada is the essential factor to satisfy the
residency requirement as set out in this test.
[11]
This
test is an objective one, requiring a strict accounting of the number of days
that the applicant has been absent from Canada. It is ‘objective’ in the sense that the
evidence will, by itself, demonstrate whether a person meets the residency
requirements. All that is required on the part of the citizenship judge is to
set out the appropriate four-year period, based on the date of the citizenship
application, and to subtract all of the days the applicant spent outside Canada
during this period, in order to determine if the total number of days that the
applicant was physically present in Canada equals the required 1095 days, as per
paragraph 5(1)(c) of the Act.
[12]
The
applicant refers in his submissions to the decision in Sio v. Canada,
[1999] F.C.J. No. 422 (QL), where Chief Justice Allan Lutfy said that it was
open to a citizenship judge to follow either the approach developed in Re
Papadogiorgakis, [1978] 2 F.C. 208 (centralized mode of living) or in Re
Pourghasemi, above (strict accounting of physical absences), but not a
mixture of the two.
[13]
Chief
Justice Lutfy stated at paragraph 10 of Sio, above:
This
statement reflects those decisions of this Court which follow Papadogiorgakis
and allow for temporary absences where the applicant has otherwise centralized
a mode of living in Canada. However, the Citizenship Judge also
refers extensively to Pourghasemi, Re (1993), 19 Imm. L.R. (2d) 259
(F.C.T.D.), a decision which applies the stricter interpretation of paragraph
5(1)(c) where the prescribed three years is “little enough time in which to
become Canadianized”. The simultaneous reference to the conflicting case law in
the letter of decision, without further explanation, may reflect a
misunderstanding of the legal issues against which she could apply this
applicant’s fact circumstances. In my opinion, this constitutes a valid ground
of appeal.
[14]
Having
reviewed the decision of the citizenship judge, I am satisfied that she did not
err by mixing up the two schools of thoughts as mentioned in Sio, above,
as she did not make simultaneous references to the conflicting case law in her
decision, as was the case in Sio, above, which could have indicated a misunderstanding
on her part of the legal criteria to be applied to the particular facts of the applicant’s
case. In my view, it is clear that the citizenship judge did not misunderstand
the law and that she did correctly apply the test of her choosing to the facts
of this case, such that this does not constitute a valid ground for appeal.
[15]
I do
not believe either that she attempted to apply the test set out in Re Koo,
[1993] 1 F.C. 286 (T.D.), as she did not seek to determine whether Canada was
the place where the applicant regularly, normally or customarily lived, or whether
Canada was the place where he had centralized his mode of existence.
[16]
It
is obvious that there are diverging judicial opinions on the proper approach to
the interpretation of the residency requirements pursuant to paragraph 5(1)(c)
of the Act, as is reflected in the jurisprudence of this Court. Nevertheless, it
is clear that both the strict and the liberal interpretations of this paragraph
are acceptable, and that a citizenship judge will not be found to have erred
simply for choosing to apply one over the other.
[17]
Overall,
I am satisfied that the citizenship judge did properly apply the residency test
she elected to follow, which was obviously the test set out in Re
Pourghasemi, above, and that, in reviewing the applicant’s file, she did
not misapprehend the facts, as was alleged by the applicant.
[18]
In
my view, her reasons demonstrate a good comprehension of the law, and her
conclusion that the applicant was not eligible for citizenship at this time was
correct, in light of the facts in this case. Based on a strict accounting of
the applicant’s physical presence in Canada, it is clear that the applicant did not meet
the requirements of the Act due to the number of days he spent outside of the
country. Consequently, he could not be granted Canadian citizenship.
[19]
For
the above reasons, I have no hesitation in concluding that the intervention of
this Court is not justified in this case and that, therefore, this appeal
should be dismissed.
JUDGMENT
1. The appeal is
dismissed.
“Pierre
Blais”
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