Date: 20080327
Docket: T-865-07
Citation: 2008 FC 390
Ottawa, Ontario, this 27th day of March, 2008
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
NING
WANG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
[1]
This
is an appeal of a decision of a Citizenship Judge dated April 29, 2007,
(Decision) in which the Judge refused to grant the Applicant Canadian
citizenship on the ground that he had not met the residency requirement under
section 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29 [Act].
BACKGROUND
[2]
The
Applicant, Mr. Ning Wang, was born in China on December 7, 1969, and was landed
as a permanent resident of Canada on October 10, 2000. Mr. Wang, the sole
owner of a Canadian company, is a dealer in Chinese art and antiques. Because
of the nature of his work, he frequently travels to China, Hong Kong, London and New York to see
collections and attend auctions. His parents and sister live in Beijing. He is a
member of numerous Canadian associations and clubs and is a volunteer and
fundraiser for the Royal Ontario Museum and the Chinese
Cultural Centre of Greater Ontario.
[3]
Mr.
Wang applied for citizenship on March 1, 2006. His citizenship hearing took
place on February 20, 2007. His application for citizenship was denied on April
29, 2007.
Decision
Under Review
[4]
The
Citizenship Judge found that the Applicant was physically present in Canada for
507 days during the relevant period, leaving him 588 days short of the minimum
requirement of 1,095 days.
[5]
The
Judge rejected the Applicant’s submission that his absences from Canada fell within
the exceptions that allow an applicant to maintain residence and, in effect,
earn days of residence while absent. She had two reasons for concluding that
the exceptions did not apply to the Applicant: first, the Act does not allow an
applicant to earn days of residence while employed outside of Canada on
business, and this is so even if the company that an applicant works for is
incorporated in Canada (the only exception to this rule being that found in
section 5(1.1) which applies to spouses of Canadian citizens employed with the
Canadian armed forces, or the federal public administration or the public
service of a province); second, the Citizenship Judge found that there was
insufficient evidence to verify that the Applicant’s absences fell within the
allowable exceptions, and she stressed that this was particularly so given that
he had spent more time out of Canada than he had spent in Canada during the
relevant four-year period.
[6]
In
support of this finding, the Citizenship Judge cited this Court’s decision in Re
Leung:
Many Canadian citizens, whether Canadian
born or naturalized, must spend a large part of their time abroad in connection
with their businesses, and this is their choice. An applicant for citizenship,
however, does not have such freedom because of the provisions of section 5(1)
of the Act. [(1991), 42 F.T.R. 149 at para. 32, [1991] F.C.J. No. 160.]
[7]
The
Citizenship Judge then concluded that, despite some favourable indicia of
residence (the Applicant’s having returned to Canada after each of his absences;
his involvement in several social and cultural organizations; the fact that he
does not appear to own any property outside of Canada and that he resides in
hotels or with family members while travelling on business), on a balance of
probabilities, she was not persuaded that the Applicant had remained in Canada
for a sufficient period to establish residence here. She then refused his
application on the basis that the Applicant did not meet the residence
requirement under paragraph 5(1)(c) of the Act.
ISSUES
[8]
The
Applicant challenges the Decision on two grounds:
1. Did the Judge
err in finding that the Applicant did not satisfy the residence requirement
provided in section 5(1)(c) of the Act?
2. Did the
Citizenship Judge err by failing to articulate clearly which test she applied
to determine residency?
REASONS
[9]
There
has been general consensus in this Court that the standard of review applicable
to citizenship judges’ determinations of whether an applicant has met the
residence requirement of the Act is reasonableness simpliciter (Canada (Minister of
Citizenship and Immigration) v. Chang, 2003 FC 1472; Rizvi v. Canada (Minister
of Citizenship and Immigration), 2005 FC 1641; Morales v. Canada (Minister of Citizenship and
Immigration) (2005), 45 Imm. L.R. (3d) 284, 2005 FC 778; Chen v. Canada
(Minister of Citizenship and Immigration), 2006 FC 85; Zhao v. Canada
(Minister of Citizenship and Immigration), 2006 FC 1536 [Zhao];
Tulupnikov v. Canada (Minister of Citizenship and
Immigration), 2006 FC 1439; Farrokhyar v. Canada (Minister of Citizenship
and Immigration), 2007 FC 697; Farshchi v. Canada (Minister of
Citizenship and Immigration), 2007 FC 487).
Following this jurisprudence and in light of the Supreme Court of Canada’s
recent decision in Dunsmuir v. New Brunswick, 2008 SCC 9, I regard the applicable standard of review as
reasonableness. Section 5(1) of the Act sets out the necessary criteria for
obtaining citizenship. Section 5(1)(c) requires that a person should accumulate
at least three years, or 1,095 days, of residence within the four years
immediately preceding the date of his or her application for citizenship. Each applicant
bears the onus of establishing the residence requirement on a balance of
probabilities.
[10]
As
the Respondent and the Applicant agree, in order to meet the standards of the Citizenship
Act, residence must be established and maintained (see Ahmed v. Canada (Minister of
Citizenship and Immigration) (2002), 225 F.T.R. 215, 2002 FCT 1067 at
para. 6). The jurisprudence suggests that this involves a two-stage inquiry: a
threshold determination as to whether or not residence in Canada has been
established and then, if that threshold is met, a further determination of
whether or not the particular applicant’s residence satisfies the required
total number of days. As the Applicant and the Respondent also agree, since
there is no definition of residency in the Act, the Citizenship Judge may apply
one of three tests to determine whether an applicant has met the residence
requirement. One of those tests is the physical presence test (see Ping v.
Canada (Minister of Citizenship and Immigration), 2007 FC 777 at para. 4).
[11]
The
Respondent says that the Citizenship Judge in this case decided that the
Applicant had not satisfied the threshold requirement. In the alternative, the
Respondent argues that the Judge applied the physical presence test for
maintenance of residence and concluded that section 5(1)(c) of the Act
was not satisfied.
[12]
When
the Decision is reviewed as a whole, it seems to me that the Citizenship Judge
is saying quite simply that the Applicant has not established residency under
section 5(1)(c) because the Applicant has not satisfied the physical
presence test.
[13]
The
Applicant says it is not clear which test the Citizenship Judge applied in this
case and, in particular, her references to the decision in Re Leung and
her citing of qualitative criteria show that the Judge did not obviously apply
the physical presence test in the way suggested by the Respondent.
[14]
My
review of the Decision suggests that, irrespective of what Re Leung may
stand for, the Citizenship Judge felt it supported her reasoning that physical
presence in Canada should be
required in this case to support residency.
[15]
The
Judge certainly does acknowledge the qualitative criteria put forward by the
Applicant, but I think she makes it clear that the basis of her Decision is
that “I am not persuaded that you have remained in Canada for a sufficient
period to establish residence in this country.” This basic position is
supported by the hand-written reasons found in the Notice to the Minister: “The
applicant has failed to meet the basic residency requirement of 1,095 days. He
has spent more time out of the country than in it.” The Judge remains focused
on the number of days.
[16]
In
the Decision itself, the Citizenship Judge says that “for the reasons provided
above, I am unable to approve your application because you have not met the
residence requirement under paragraph 5(1)(c) of the Act.” The “reasons provided
above” come down to the final conclusion that “on the balance of probabilities,
I am not persuaded that you have remained in Canada for a
sufficient period to establish residence in this country.”
[17]
Even
though the Judge acknowledges various positive, qualitative factors put forward
by the Applicant, there is no blending of the tests and I think she makes it
clear that, for her, the deciding factor is quantitative and this is the basis of
her decision under section 5(1)(c).
[18]
Because
the physical presence test set out in Re Pourghasemi (1993), 62 F.T.R.
122, appears to be an allowable approach to determining section 5(1)(c)
of the Act, I cannot say that the Judge’s Decision in this case was either
incorrect for applying the wrong test or unreasonable for the conclusions
reached on whether the Applicant met the residency requirement. Even if the
Applicant did meet the threshold residency requirement, he did not satisfy this
judge on the physical presence test that he qualified under section 5(1)(c).
[19]
Counsel
are requested to serve and file any submissions with respect to certification
of a question of general importance within seven days of receipt of these
Reasons for Judgment. Each
party will have a further period of three days to serve and
file any reply to the submission of the opposite party Following that, a
Judgment will be issued.
“James
Russell”
Judge
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