Date: 20080415
Docket: T-1515-07
Citation: 2008 FC 483
Ottawa, Ontario, April
15, 2008
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
LI
ZHANG
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The Applicant, Li Zhang, appeals the June 20, 2007 decision of
Citizenship Judge William Day refusing his application for Canadian
Citizenship. The Citizenship Judge found that the Applicant failed to meet the
residency requirement under section 5(1) of the Citizenship Act, R.S.C. 1985, c. C-29, (the Act). The
pertinent provisions of the Act are annexed to these reasons.
[2]
The Citizenship Judge found that the Applicant had established
residence in Canada on October 2, 2002, and deemed him to have completed 922
days of recognized establishment in Canada at the time of his application. The
Judge found this to be 173 days short of the statutory minimum 1095 days of
residence that must pass before an applicant can be considered for citizenship.
Further, the Judge found that a favourable recommendation under subsections
5(3) and 5(4) of the Act was not warranted since there was no evidence of any
health disability, any special or unusual hardship or services of an
exceptional value to Canada.
[3]
The term “residence” has been given different interpretations by
this Court. There are essentially two categories. The first involves actual
physical presence in Canada for a total of three years, calculated on the basis
of a strict counting of days (Pourghasemi (Re), [1993] F.C.J. No. 232
(QL) (T.D.)). The second category involves a less stringent reading of physical
presence so long as the applicant’s connection to Canada remains strong. (Antonio
E. Papadogioriorgahis (Re), [1978] 2 F.C. 208 (T.D.) and Koo (Re),
[1993] 1 F.C. 286 (T.D.)).
[4]
It is open to a Citizenship Judge to choose one of the recognized
residency tests. The Court’s role on judicial review is to determine whether
the chosen test was properly applied by the Citizenship Judge. (Lam v.
Canada (Minister of Citizenship and Immigration), [1999] F.C.J. 410
(QL) (T.D.)).
[5]
In reaching his decision, the Citizenship judge adopted
the residency test as outlined in Canada (Minister of Citizenship and
Immigration) v. Nandre, 2003 FCT 650. In that case Mr. Justice O’Reilly
recognized that the Act is capable of more than one interpretation. One
requiring physical presence in Canada for three years out of four and another
requiring less than that so long as the applicant’s connection to Canada is strong. The first is a physical test
and the second is a qualitative test. The test articulated by Mr. Justice
O’Reilly in Nandre is essentially a qualitative residency test. He
explains the underlying rationale for the test, to which I subscribe, and its
application at paragraphs 12 and 24 of his reasons.
[12] With great respect to
those with other views, it seems to me that the qualitative test should be
applied by citizenship judges. This does not mean that the physical test is
irrelevant. If an applicant meets the physical test, then the residency
requirement of s. 5(1)(c) of the Act will be satisfied. If the physical
test is not met, however, citizenship judges should, in my view, go on to
consider the qualitative test. …
[24] … the Citizenship
Act requires that an applicant for citizenship show a period of residence
in Canada amounting to a total of at
least three years over the course of the previous four. In order for applicants
to satisfy the residence requirement, they must first show that they have
established a residence in Canada and
then demonstrate that they maintained residency for the required duration….
[6]
The Applicant contends that the Citizenship Judge erred in his
application of the Nandre residency test. It is argued that the Judge
embarked on an analysis informed by the Nandre decision, a qualitative
test, and then improperly blended that test with the Pourghasemi test, (Re
Pourghasemi [1993] F.C.J. No. 232 (T.D.)) which involves a strict
interpretation of actual physical presence in Canada. In essence, the Applicant
maintains that the Citizenship Judge improperly discounted the period between
April 12, 2001 and October 2, 2002 a period during which he was sometimes
physically present in Canada. In the Applicant’s submission, this period was
discounted without the benefit of a qualitative assessment required under the Nandre
test.
[7]
The question of whether an appellant meets the residency
requirement involves an issue of mixed fact and law on which Citizenship Judges
are owed a degree of deference by reason of their special knowledge and
expertise in these matters. The ample jurisprudence of this Court has
established the applicable standard of review for such a question to be
reasonableness simpliciter. (Chen v. Canada (Minister
of Citizenship and Immigration) 2006 FC 85 at paras, 6; Rizvi v. Canada
(Minister of Citizenship and Immigration) 2005 FC 1641 at para. 5; Xu v.
Canada (Minister of Citizenship and Immigration) 2005 FC 700
at para. 13 and Canada (Minister of Citizenship and Immigration) v. Fu,
2004 FC 60 at para. 7).
[8]
The Supreme Court of Canada in David Dunsmuir v.
Her Majesty the Queen in Right of the Province of New Brunswick, 2008 SCC 9, recently decided that there are now only two
standards of review; reasonableness and correctness. I am satisfied upon consideration
of the principles and factors discussed in Dunsmuir that the applicable
standard of review for the question before me is reasonableness.
[9]
I disagree with the Applicant’s argument and particularly with
his understanding of the Nandre test. In my view, Mr. Justice O’Reilly
was clear. He stated that an applicant must first show that he has established
residence in Canada, and then demonstrate that they maintained residence for
the required duration. It follows, that a citizenship judge must first
determine the point of time when an applicant has established residence in Canada,
since that date is not necessarily the date of landing. Here, that date was
determined to be October 2, 2002. The Citizenship Judge explained his finding
as follows:
Immediately after landing in Canada
you commenced months of foreign travel. After landing on 07 April 2001 you left
Canada nine days later on 16 April 2001, returning 09 July 2001 for four weeks
in Ottawa while your parents looked for accommodation there. You left Ottawa on
05 August, returning 03 September for two months in Vancouver where your
parents had established themselves. You left Vancouver on 30 October 2001,
returning to Canada on 11 December and leaving again on 16 January 02.
Your first substantial stay in
Canada was from 02 October 2002 to 06 July 2003, during which time you attended
Concordia University for one and one half semesters.
This sequence of events gives
rise to a significant issue – the point at which you actually became a functional
resident of Canada. The Nandre Decision – Citation 2003 FCT 650
(Honourable Justice O’Reilly) established and definitively
clarified the precedent that residence commences not at the time of landing,
but when a person takes up functional residence in Canada. Your first
functioning residence in Canada commenced on 02 October 2002 when you returned
to Canada and took up residence with your parents and at Concordia University.
At this point, you stayed in Canada for 277 days and then left for China and
the United Kingdom.
On this latter basis, your period
of residence is between 02 October 2002 and 12 April 2005 when you applied for
citizenship. [Emphasis in the text.]
[10]
In my view, the Citizenship Judge’s determination of the
functional residency date of October 2, 2002 was reasonably open to him on the
evidence. I am also of the view that the Citizenship Judge properly applied the
Nandre test. I agree with the Respondent that a qualitative assessment
was not required in the circumstances because the period between October 2,
2002 to April 12, 2005 fell short of the 1095 days pursuant to s. 5(1)(c)
of the Act. A qualitative assessment of those days spent outside Canada in that
period would be an exercise in futility since, even if every day were counted, there
would still be insufficient days of residency to meet the requirements of s.
5(1)(c).
[11]
The Citizenship Judge’s determination regarding a recommendation
under subsections 5(3) and 5(4) of the Act are not raised in this application.
I find on the record, that the determination was reasonably open to him in any
event.
[12]
The remaining issues raised by the Applicant relate to the
failure of the Citizenship Judge to conduct a proper qualitative assessment and
failure to consider the evidence of the Applicant’s ties to Canada adduced
before him. As stated above, by adopting and applying the Nandre residency
test, no such qualitative assessment is required in the circumstances.
[13]
I am of the opinion that the Citizenship Judge committed no
reviewable error in dismissing the Applicant’s citizenship application.
[14]
For the above reasons, the application for judicial review will
be dismissed.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
The application for judicial
review of the June 20, 2007 decision of the Citizenship Judge is dismissed.
“Edmond P. Blanchard”
ANNEX
Subsections
5(1), 5(3), 5(4), 14(2) and 14(5) of the Citizenship Act state:
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Grant of citizenship
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.
…
(3) The Minister may, in his discretion,
waive on compassionate grounds,
(a) in the case of any person,
the requirements of paragraph (1)(d) or (e);
(b) in the case of a minor, the
requirement respecting age set out in paragraph (1)(b),
the requirement respecting length of residence in Canada set out in paragraph
(1)(c) or the requirement to take the oath of
citizenship; and
(c) in the case of any person
who is prevented from understanding the significance of taking the oath of
citizenship by reason of a mental disability, the requirement to take the
oath.
(4) In order to alleviate cases of special
and unusual hardship or to reward services of an exceptional value to Canada,
and notwithstanding any other provision of this Act, the Governor in Council
may, in his discretion, direct the Minister to grant citizenship to any
person and, where such a direction is made, the Minister shall forthwith
grant citizenship to the person named in the direction.
…
14. (2) Forthwith after
making a determination under subsection (1) in respect of an application
referred to therein but subject to section 15, the citizenship judge shall
approve or not approve the application in accordance with his determination,
notify the Minister accordingly and provide the Minister with the reasons
therefor.
...
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.]
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Attribution
de la citoyenneté
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.
…
(3) Pour des raisons d’ordre humanitaire,
le ministre a le pouvoir discrétionnaire d’exempter :
a) dans tous les cas, des conditions prévues aux alinéas (1)d) ou e);
b) dans le cas d’un mineur, des conditions relatives soit à l’âge
ou à la durée de résidence au Canada respectivement énoncées aux alinéas (1)b) et c), soit à la
prestation du serment de citoyenneté;
c) dans le cas d’une personne incapable de saisir la portée du
serment de citoyenneté en raison d’une déficience mentale, de l’exigence de
prêter ce serment.
(4) Afin de remédier à une situation
particulière et inhabituelle de détresse ou de récompenser des services
exceptionnels rendus au Canada, le gouverneur en conseil a le pouvoir
discrétionnaire, malgré les autres dispositions de la présente loi,
d’ordonner au ministre d’attribuer la citoyenneté à toute personne qu’il
désigne; le ministre procède alors sans délai à l’attribution.
[…]
14. (2)
Aussitôt après avoir statué sur la demande visée au paragraphe (1), le
juge de la citoyenneté, sous réserve de l’article 15, approuve ou rejette la
demande selon qu’il conclut ou non à la conformité de celle-ci et transmet sa
décision motivée au ministre.
[…]
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. [Je souligne.]
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