Date: 20080612
Docket: T-1165-07
Citation: 2008 FC 731
Ottawa, Ontario, June 12,
2008
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
SHING
TIMOTHY WONG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
is an appeal of a Citizenship Judge’s decision in which the citizenship
application of the Applicant, Shing Timothy Wong, was denied because he had not
met the residency requirements under s. 5(1)(c) of the Citizenship
Act (Act). Mr. Wong was born in Hong Kong and is a citizen of the United
Kingdom.
In July 1996, the Applicant, together with his wife and two children, entered Canada and were
admitted as permanent residents.
II. BACKGROUND
[2]
In
September 1996, the Applicant purchased and moved into a home in Thornhill, Ontario, which he continues
to own and in which he and his family have resided since that date. In
September 1996, the Applicant incorporated his first business in which he was
the sole shareholder and director. The corporation’s address was the
Applicant’s home and the business activity is listed in the corporation’s
records as “consulting”. In each of the years 2001, 2002 and 2003, the
Applicant received employment income from that corporation.
[3]
Commencing
in 2001, the Applicant began renting an apartment in Hong Kong which he used
when travelling there for business and other activities as disclosed in the
documents filed with the citizenship application.
[4]
In
2003, the first corporation was dissolved and in 2004, the Applicant
incorporated a second company in which he was the sole shareholder and
director. The corporate offices were at the Applicant’s residence. That
business was listed as engaged in “export recycled metal”.
[5]
The
Applicant received no employment income from the corporation in 2004 and
received a modest amount of income in 2005.
[6]
On
June 15, 2005, the Applicant filed an application for citizenship, having
previously filed an earlier application which he withdrew. Therefore, the
relevant four-year period under the Act for the determination of residence is
calculated from June 15, 2001 to June 15, 2005 (the Period).
[7]
On
May 13, 2007, the Citizenship Judge denied the Applicant’s application. The
Citizenship Judge defined the issues before him as:
Have you, the Applicant, accumulated at
least three years (1,095 days) of residence in Canada within the four years
(1,460 days) immediately preceding the date of your application for Canadian
citizenship? I must determine whether you meet the requirements of this Act and
the Regulations including the requirement set out in paragraph 5(1)(c)
to have accumulated at least three years (1,095 days) of residence within the
four years (1,460 days) immediately preceding the date of your application.
[8]
Notwithstanding
the framing of the issue as above, the Citizenship Judge then went on to answer
the six questions posed by Madame Justice Reed in the decision Re: Koo,
[1993] 1 F.C. 286 (T.D.).
[9]
In
reviewing the questions posed in Re: Koo and in particular the question
“Does the pattern of physical presence in Canada indicate a returning home or
merely visiting the country?”, the Citizenship Judge noted that there were 21
separate occasions of absence from Canada and that the absences were described
in various documents as either due to “working and tourism” or “business and
vacation”. In the context of the same question, the Citizenship Judge continued
“the onus was on you to establish the physical presence of 1,095 days during
the relevant four-year period”.
[10]
The
Citizenship Judge, in further analysing the issue of whether absences were
temporary in nature, noted that the Applicant had testified that he had
travelled to Hong
Kong
in part to obtain medical treatment for his son, who is autistic, but that fact
was not mentioned in either the application for citizenship or in the residence
questionnaire.
[11]
In
conclusion, the Citizenship Judge held as follows:
I took into consideration your age, and
the length of time it has been since you first landed in Canada, as well as the fact that
your wife and children are already Canadian citizens. However, I believe that
on the balance of probabilities you have not yet centralized your mode of
existence in Canada. You have not “regularly,
normally or customarily” resided or lived in Canada. As such, at this time, you have not met
the residence requirements of Article 5(1)(c) of the Act.
[12]
Therefore,
the Citizenship Judge did not approve the application for citizenship.
III. ANALYSIS
[13]
The
Applicant had raised, as one of the grounds for appeal, the issue of breach of
procedural fairness. However, at the hearing, no submissions were addressed to
this issue and I am unable to find anything in the record which would suggest
any valid basis for considering, much less deciding, this issue.
A. Standard
of Review
[14]
The
Respondent has submitted that despite the decision in Dunsmuir v. New
Brunswick,
2008 SCC 9, since the determination of this case is largely based on an
assessment of facts, the standard of review is that of the higher end of
reasonableness approaching that of patent unreasonableness. In my view, the
Supreme Court of Canada did not embark on an analysis of the standard of review
in Dunsmuir and reduce the standard of review to two tests of
correctness and reasonableness merely to have the test of “patent
unreasonableness” reappear under another guise.
[15]
In
my view, in respect of factual matters, the Court should give weight to the
role of the Citizenship Judge, the expertise in the organization, the statutory
function of the judge and the fact that the judge was in a better position to
make assessments of evidence particularly as it relates to credibility.
Therefore, a considerable degree of deference within the spectrum of
reasonableness is owed to the factual conclusions of the Citizenship Judge.
[16]
In
many regards, the Citizenship Judge’s conclusions are based upon some element
of an assessment of credibility or at least consistency in the Applicant’s
story. For example, the Applicant’s reliance on trips to Hong Kong to obtain
treatment for his son for the condition of autism is used to explain the number
of trips to that area. However, there were only 5 trips which listed autism treatment
as the reason for travel out of the 21 foreign trips listed by the Applicant.
In none of the records of these other trips submitted to the Citizenship Judge
was there a notation that the trip was made, even in part, for the purposes of
medical treatment; the reasons listed were business, vacations or tourism. The
Applicant’s counsel asked the Court to speculate that the absence of any record
of the treatment for autism was based on embarrassment or shame felt by the
parents. There is no evidence on this point and the Court is not prepared to
speculate or to second-guess the Citizenship Judge on this point.
B. Legal
Errors
[17]
The
problem with this decision is not so much with respect to the assessment of
facts; the Applicant’s record and submissions before the Citizenship Judge in
this regard are at best confusing. The problems with this decision rest with
the legal analysis conducted by the Citizenship Judge.
[18]
With
due respect to the Citizenship Judge, I have identified three legal errors
which go to the core of the decision and which justify the granting of this
appeal.
[19]
The
first error is that the Citizenship Judge erred by failing to make a finding of
whether the Applicant had established residency prior to the Period. My
decision in Canada (Minister of Citizenship and Immigration) v. Xiong,
2004 FC 1129, held that a citizenship judge must first consider, where the
record would support it, whether an applicant has established residence in the
time frame before the four-year relevant period and, if so, whether the
applicant had maintained that residence for the required amount of time during
the relevant period.
[20]
There
was sufficient material in the record to raise the issue of pre-existing
residence but the Citizenship Judge failed to embark on that enquiry. In that
regard, the Citizenship Judge erred in law. This is not to suggest that there
are no problems with the documents on this issue or certain inconsistencies in
the record. However, in my view it was the obligation of the Citizenship Judge
to assess whether residency had been established, particularly where the
Applicant and his family had been in Canada for 12 years, owning their own
home, where members of the family had become citizens of Canada and to where
the Applicant, having travelled from Canada to other points, including Hong
Kong, always returned.
[21]
The
second error of law arises from the importance emphasized by the Citizenship
Judge with respect to the number of days of actual physical presence in Canada.
[22]
While
it is trite law that this Court has interpreted the test of residency in a
number of different ways, it is a truly unfortunate result. Justice Lutfy (as
he then was) in Lam v. Canada (Minister of Citizenship and Immigration) (1999),
164 F.T.R. 177, concluded that it was open to a citizenship judge to adopt any
of the tests of residency promulgated in what he described as this Court’s conflicting
jurisprudence: (1) strict physical presence as described in Re Pourghasemi
(1993), 62 F.T.R. 122; (2) quality of attachment as set forth in Re Papadogiorgakis,
[1978] 2 F.C. 208; or (3) centralized mode of living as outlined in Re: Koo.
[23]
With
the greatest of respect, I cannot see how a person’s citizenship should be
determined on the basis of mere chance by virtue of whichever test a
citizenship judge elects to use. This is an area which cries out for resolution
as it is impossible to appeal any decision to obtain a final ruling from the
Federal Court of Appeal.
[24]
The
strict physical presence test has become of limited, if any, use and would (if
it were the appropriate test) hardly require the involvement of a citizenship
judge in the mathematical calculation of physical presence.
[25]
In
any event, in this case, the Citizenship Judge chose the Re: Koo test
upon which to base the analysis. However, the Citizenship Judge continued to
lay considerable emphasis on aspects of the strict physical presence and the
lack of 1,095 days in Canada. In that regard, the Citizenship Judge
erred in a manner similar to that found by Justice Heneghan in Hsu v. Canada
(Minister of Citizenship and Immigration) (2001), 206 F.T.R. 10 at
paragraph 7:
In my opinion, it appears that the
Citizenship Judge blended two tests, that is the strict calculation of time
with the substantial connection test expressed in Re: Koo, [1993] 1 F.C.
286 (T.D.).
[26]
Lastly
and most importantly, the Citizenship Judge failed to properly consider what is
commonly referred to as question 6 in the Re: Koo analysis. The sixth
question in Re: Koo is “What is the quality of the connection with Canada? Is it more
substantial than that which exists with any other country?”.
[27]
While
the courts have recognized that a non-Canadian citizen residing in Canada returning to
their home country during the relevant period raises more complex issues in
respect of residency than a similar Canadian resident travelling to non-home
foreign countries, nevertheless this factor must be approached on its own.
[28]
As
held by Justice Russell in Pourzand v. Canada (Minister of Citizenship and
Immigration), 2008 FC 395, the sixth factor requires the citizenship judge
to undertake a comparison to determine whether the applicant’s connection with
Canada is more substantial than with any other country.
[29]
The
Citizenship Judge in this case concluded that based upon the frequent absences
during the Period, the Applicant continued to have strong ties to Hong Kong. This may
well have been based upon such evidence as the rental of an apartment for
purposes of business trips and indeed the number of trips taken. However, the
Judge failed to consider whether the Applicant had property elsewhere, that he
returned to Canada after each of the absences, or that the stays in Hong Kong and other
countries were only temporary and work-related. Some of these factors are also
relevant to the fifth question in Re: Koo, but in any event the
Citizenship Judge did not engage in the comparative analysis of connections as
required by Re: Koo.
IV. CONCLUSION
[30]
For
the above reasons, I have concluded that the Citizenship Judge erred in law and
that the appeal will be granted. In so finding, I note that the quality of the
Applicant’s application and records are a source of the adverse factual
findings which, on any test of reasonableness, would be sustained. This appeal
is granted simply on the basis of the errors of law.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the appeal is
allowed and the matter is referred back to another citizenship judge for a new
determination of the citizenship application.
“Michael
L. Phelan”
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