Date: 20080724
Docket: T-1775-07
Citation: 2008 FC 905
Ottawa, Ontario, July 24,
2008
PRESENT: The Honourable Madam Justice Simpson
BETWEEN:
PAO
CHI CHU
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Pao Chi Chu (the Applicant)
is appealing pursuant to subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 (the Act) and section 21
of the Federal Courts Act, R.S.C. 1985, c. F-7, from a decision made on September
5, 2007 (the Decision) under subsection 14(3) of the Act by a Citizenship Judge
(the Judge) to deny the Applicant’s application for citizenship.
[2]
The Applicant was born in
Taiwan and is a citizen of the People’s Republic of China.
[3]
On January 13, 1988, the
Applicant, together with his wife and eldest daughter, first entered Canada
as permanent residents.
[4]
The Applicant’s wife and
elder daughter are now Canadian citizens. The Applicant also has a second
daughter who was born in Canada.
[5]
On February 8, 1988,
shortly after arriving in Canada, the Applicant returned to work in Taiwan.
[6]
The Applicant continued to
spend most of his time in Taiwan over the next 15 years until June 3, 2003 when
he returned to Canada. He remained in Canada until March
29, 2006 when he applied for citizenship (the Application). Thereafter, in June
2006, he returned to work in Taiwan.
[7]
On October 2, 2006, the
Applicant was asked to complete a Residence Questionnaire. On October 27, 2006,
the Applicant submitted a partially completed questionnaire and, through his counsel,
objected to the form. He said:
The
residency questionnaire is a form designed for people who apply for citizenship
based on centralized mode of living/de facto resident of Canada
and not physical resident. Mr. Chu is applying as a full time resident. The
form is inappropriate in that it asks for periods reaching back to the time of
Mr. Chu’s landing and his employment situation outside the 3 or 4 years
preceding the application. To qualify as a full time resident, Mr. Chu only has
to prove on a balance of probabilities that he has the requisite time. His
record of movement and passport alone can satisfy that point.
[8]
In his Application, the
Applicant claimed he had been physically present for 1,100 days during the
four-year period from March 29, 2002 to March 29, 2006 (the Period). This was
five days over the requirement of 1,095 days.
[9]
However, the Applicant
neglected to declare a trip to the United
States in August 2002 when he
obtained permanent resident status in that country.
[10]
As a result, the parties
agree that the Applicant was not physically present in Canada
for the 1,095 required days. The Judge found that the Applicant had been
present for 1,090 days or five days short of the requirement. The Applicant
disagreed and says he was only 2 days short of the requirement but nothing
turned on this difference.
[11]
Since the Applicant did not
have 1,095 days of physical presence, the Judge also considered when the
Applicant became a functional resident of Canada, following the decision of Mr. Justice James
O’Reilly in Canada (Minister of Citizenship and Immigration) v.
Nandre, 2003 FCT 650, 234
F.T.R. 245. In that decision, Justice O’Reilly held that if an applicant
established functional residence at least 1,095 days prior to the application
for citizenship, then the applicant could satisfy the residency test despite
not having 1,095 days of physical presence.
[12]
The Citizenship Judge
concluded that the Applicant established functional residence on June 3, 2003.
However, this meant that he had only 1,030 days and not the required 1,095
days.
[13]
The Applicant says that the
Judge:
1.
erred in failing to include
in his calculations the periods during which the Applicant was in Canada
after his landing but before he established his functional residence on
June 3, 2003;
2.
erred in applying the
functional residence test without giving him notice.
STANDARD OF REVIEW
[14]
Issue 1 involves a question
of law that is within the specialized expertise of the Judge. For this reason,
based on an analysis of the principles established by the Supreme Court of
Canada in is decision in Dunsmuir
v. New Brunswick, 2008 SCC 9, paragraph 55, I have concluded
that reasonableness is the appropriate standard of review. Issue 2 is a
question of fairness which does not attract deference.
DISCUSSION
[15]
In my view, it is settled
law that only periods of residence, after functional residence is established,
are counted.
[16]
In this regard, I rely on
the decision of Mr. Justice Denis Pelletier in Sud v. Canada (Minister of Citizenship and Immigration) (1999), 180 F.T.R. 3 in which he said, at
paragraph 5:
5
Residence does not begin to
accumulate until it has been established. This principle was confirmed by the
Federal Court of Appeal shortly after the decision of Mr. Justice Thurlow in Re
Papadogiorgakis [1978] 2 F.C.R. 208 in a case called Re Pattni [1980] F.C.J.
No. 1017. In Papadogiorgakis, Thurlow J. established the principle of
constructive residence in which periods of absence from Canada
could count towards the residence requirement found at s. 5 (1)(c) of the Act.
It is implicit in Papadogiorgakis that residence must first be established
before periods of absence can count as periods of residence. This was made
explicit in Pattni:
In order that physical
absences from Canada may count as residence in Canada an applicant must first have established
a residence in Canada.
[17]
I have reviewed the
Applicant’s post-hearing submissions and am not persuaded by his interpretation
of the decision in Sud. Instead, I agree with Mr. Justice Edmond Blanchard’s
conclusion in Zhang v. Canada
(Minister of Citizenship and Immigration), 2008 FC 483, [2008] F.C.J. No. 603 where he says that in Nandre, Mr. Justice O’Reilly clearly stated that an applicant must first
establish residence and then show that it was maintained for three of the four
years preceding an application for citizenship.
[18]
In my view, there is no
authority for the Applicant’s proposition that, when an analysis of functional
residence is undertaken, credit is to be given for time spent in Canada
as a permanent resident before functional residence is established.
[19]
Regarding
Issue 2, the Judge was not required to assess functional residence. The
Applicant made it very clear in his terse response to the Residence
Questionnaire that his application depended only on physical presence.
Accordingly, once it was correctly determined that physical presence was
insufficient, the matter ended (see Re: Pourghasemi (1993), 62 F.T.R.
122). In these circumstances, there was no obligation on the Judge to give the
Applicant notice that the application was being evaluated using another test.
JUDGMENT
UPON reviewing the material filed;
AND UPON hearing the submissions of counsel for both
parties in Vancouver, on March 27, 2008;
AND UPON reviewing the post-hearing submissions of
counsel for both parties.
NOW THIS COURT ORDERS AND ADJUDGES that, for the reasons given above, this appeal is
hereby dismissed with costs.
“Sandra
J. Simpson”
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