Date: 20080707
Docket: T-7-08
Citation: 2008 FC 736
Ottawa, Ontario, July 7,
2008
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
JIAN
GAO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
is an appeal from a Citizenship Judge’s decision refusing citizenship on the
basis that the Applicant had not met the residency requirement of s. 5(1)(c)
of the Citizenship Act (Act).
II. BACKGROUND
[2]
The
Applicant entered Canada on June 24, 2003, having been sponsored by her
then-spouse as a permanent resident. She applied for citizenship on July 7,
2006.
[3]
Therefore,
for purposes of residency, the relevant time to be assessed is from June 24,
2003 to July 7, 2006. During that time the Applicant was physically present in Canada for 531
days, just under half of the required minimum of 1,095 prescribed in s. 5(1)(c)
of the Act.
[4]
From
2004, the Applicant worked for L.Y. Marketing, a Canadian company. The company
wanted to establish a Shanghai office and the
Applicant was sent to China to conduct marketing research and lay the
groundwork to open the office there. The Applicant’s absences from Canada were largely
attributed to this employment requirement.
[5]
The
Citizenship Judge framed the issue as whether the Applicant had accumulated at
least three (3) years of residence within Canada. The
Citizenship Judge’s analysis lays emphasis on the amount of time away from
Canada, the absence of residency credit for working for a Canadian company
while outside Canada and the
absence of any intention to change jobs. The Citizenship Judge found that the
Applicant should have produced evidence of family ties or social activities.
[6]
Post-hearing
and at the request of the Citizenship Judge, the Applicant filed a letter from
her employer which contained the curious wording “It is our plan to hire her to
work for us when she finishes her job in China and returns back to Canada”.
[7]
The
employer’s letter arose from a document request on a form which contained these
words:
I understand that, should such
documentation not be provided, my Citizenship Application will be non-approved
by the judge.
III. ANALYSIS
[8]
The
standard of review applicable was described in Wong v. Canada (Minister of
Citizenship and Immigration), 2008 FC 731, as deference in respect of
facts. What was not said and therefore clarified is that on issues of law, the
standard is correctness.
[9]
There
was significant evidence (or lack thereof) which could call the Applicant’s
residency into question. There was, as noted, an absence of family ties or
social activities. The Applicant was separated within her first year in Canada, and she was
absent from Canada for
considerable periods of time – individually and cumulatively. As held in Faria
v. Canada (Minister of Citizenship and Immigration), 2004 FC 1385, the
residency requirements may make matters difficult for business people engaged
in international work, but that is an issue for Parliament.
[10]
However,
in cases such as Jreige v. Canada (Minister of Citizenship), [1999]
F.C.J. No. 1469 (QL) and Wong, above, the Court has outlined that a
citizenship judge is to perform a two-step analysis: (1) was residency
established, and (2) was residency maintained.
[11]
In
the decision under appeal there is no analysis of the first issue of
establishment of residency despite the existence of some evidence on this
issue, particularly in the Applicant’s first year in Canada.
[12]
Whether
that evidence was sufficient to establish residency and whether other evidence
counters it or shows that whatever was established was not maintained will no
doubt be part of the new hearing ordered.
[13]
This
Court has expressed its concern about the multiple tests of residency which may
be applied, but even if that is the result of the jurisprudence, a citizenship
judge must nevertheless be clear as to which test is being applied. In this
case, it is unclear which test was selected and applied.
[14]
In
addition, the Document Request form which states that failure to produce a
requested document “will” result in denial of citizenship is highly
questionable. It indicates a pre-determination of the result of the case and is
categorical in not admitting reasonable explanations for failure to produce.
One would think that less absolute words such as “may” could be used without
undermining the message that production of the document requested is of a high
degree of importance. While this case does not turn on this point, it very well
might have had the document not been produced.
IV. CONCLUSION
[15]
For
the above reasons, this appeal is allowed. The Court will not direct a result
or substitute its decision. The matter is to be referred back to another citizenship
judge for a hearing de novo.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this appeal
is allowed. The matter is to be referred back to another citizenship judge for
a hearing de novo.
“Michael
L. Phelan”
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