Date: 20080811
Docket: T-2233-07
Citation: 2008 FC 939
Ottawa, Ontario, August 11,
2008
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
and
XIN ZHOU
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an
appeal by the Minister of Citizenship and Immigration (the Minister) under
subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 (the Act),
from the decision of Ms. Sandra Wilking, a citizenship judge (the Citizenship
Judge) dated October 29, 2007, approving the respondent's application for
citizenship.
[2]
The
respondent, Mr. Xin Zhou, left China with his wife and son and
landed in Canada in July 2001. He applied for Canadian
citizenship approximately four years later, in October 2005.
Paragraph 5(1)(c) of the Act clearly sets out the
requirements of residency to be met by every permanent resident applying
for citizenship:
5.
(1) The Minister shall grant citizenship to any person who […]
(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;
[…]
|
5.
(1) Le ministre attribue la citoyenneté à toute personne qui, à la fois :
[…]
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;
[…]
|
[3]
In a
decision dated October 29, 2007, the Citizenship Judge found that the residency
requirement was met. She approved the respondent’s application despite the fact
that in the relevant 1,460 day period, the respondent was physically present in
Canada for 567 days and absent for
893 days. Ultimately, the Citizenship Judge was persuaded that even though the
respondent “has been absent from Canada for considerable periods in his
relevant period, he has established and maintained his residence in Canada.”
[4]
The
Citizenship Judge found as follows:
[…]
I consider that Xin Zhou and his family
established themselves in Canada after landing as permanent
residents of Canada. In his initial year in Canada he and family resided in
rented accommodations and in July 2002 he and his wife purchased their current
home. His rental contract and his registration of his mortgage of his current
residence on July 5, 2002 confirm that he and his family physically established
themselves in Canada […].
I do not consider his actions of
establishing a consulting business in Canada that essentially takes him out of Canada in order to fulfill his IT
contracts to indicate that his connections to Canada are weak and limited. […]
He has submitted invoices that were made
out to his client in China indicating that his residence was in Canada from 2003 to 2005. I have
noted that the invoices have his bank account listed as Nanyang Commercial Bank
Ltd (Hong Kong). However he stated that the
deposit of the consulting fees to a Hong Kong bank was a matter of convenience
because the funds were then transferred back to his Royal Bank account. He
presented two bank statements indicating the transfer of funds.
The revenue of his consulting projects is
declared in Canada. […] His Notice of
Assessments from 2001 to 2005 confirms [sic] his economic circumstances
in Canada: initially having no outside income
and a steady growth of income over the years. […]
His connection and ties to Canada are
further strengthened by the fact that when he is away from Canada his wife and children remain
in Canada. […] Letters from his
children’s teachers confirm that he is an active parent: being a parent
volunteer in each of his children’s schools. Letters from his business
associates, physician and friends confirm that Canada is not a place where he
visits his family and resides from time to time but Canada is where his main residence is and that
he maintains his home here when away, albeit for sometimes long periods of
time. When he is away from Canada he maintains daily contact
with Canada via the telephone and
internet.
I have noted that when he is China [sic] he lives at his in-laws’
home or his parents’ home. This situation reinforces the fact that Canada is
where he resides and that working in China
is a temporary situation in his case.
[5]
The
Citizenship Judge further noted:
[The respondent’s] arguments with respect
to taking overseas contracts because of the depth of his previous professional
relationships, that he did not wish to take advantage of Canada’s social
welfare system by being unemployed and living off welfare like many individuals
who remained in Canada after becoming permanent residents but unable to find
appropriate employment. His statements that when asked abroad “where is his home?”
and his response of “Vancouver”, that he volunteers at his children’s schools,
and that he does not abuse Canada’s social and medical system and that he helps
friends, especially non English speakers indicates that through his relevant
period he has become acculturated to Canadian values and way of life.
[6]
The
Minister now appeals this decision on the following four bases: the Citizenship
Judge failed to apply or misapplied one of the established legal tests for
“residence”; the Citizenship Judge failed to adequately test or scrutinize the
evidence; the Citizenship Judge failed to give adequate reasons; and, the
Citizenship Judge’s findings of fact were unreasonable. The Minister asks the
Court to set aside the decision and refer the respondent’s citizenship
application back for re-determination by a different citizenship judge.
[7]
Prior to
the decision of the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9 (Dunsmuir), the
standard of review for a citizenship judge's determination of whether an
applicant meets the residency requirement, which is a question of mixed fact
and law, was “reasonableness simpliciter”. The standard is now “reasonableness”.
[8]
Translated into days,
the minimum requirement of “at least three years of residence in Canada” mentioned in paragraph 5(1)(c) of the Act corresponds to
1095 days. However, the
term “residence” is not defined by statute but rather by case law: So v. Canada (Minister of Citizenship and
Immigration),
[2001] F.C.J. No. 1232, 2001 FCT 733 (So); Re Papadogiorgakis,
[1978] 2 F.C. 208, 88 D.L.R. (3d) 243 (F.C.T.D.) (Re Papadogiorgakis); Re
Koo, [1993] 1 F.C. 286 59 F.T.R. 27 (F.C.T.D.) (Re Koo); Ali v. Canada (Minister of Citizenship and
Immigration),
2008 FC 106, [2008] F.C.J. No. 122 (QL) at para. 8.; and, in Zhao v. Canada (Minister of Citizenship and
Immigration),
2006 FC 1536, [2006] F.C.J. No. 1923 (QL), at paras. 50 and 51, the case law is
summarized as follows :
There are three general tests that have
been developed by the Federal Court, and a citizenship judge may adopt and
apply whichever one he or she chooses as long as it is applied properly: So
v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No.
1232, 2001 FCT 733 at paragraph 29. Under the first test, a person cannot
reside in a place where the person is not physically present. Thus, it is
necessary for a potential citizen to establish that he or she has been
physically present in Canada for the requisite period of
time. This flows from the decision in Pourghasemi (Re) (F.C.T.D.)
(1993), 62 F.T.R.122, 19 Imm. L.R. (2d) 259 at paragraph 3 (F.C.T.D.), where
Justice Muldoon emphasized how important it is for a potential new citizen to
be immersed in Canadian society. Two other contrary tests represent a more
flexible approach to residency. First, Thurlow A.C.J. in Papadogiorgakis,
[1978] 2 F.C. 208, 88 D.L.R. (3d) 243 (F.C.T.D.) held that residency entails
more than a mere counting of days. He held that residency is a matter of the
degree to which a person, in mind or fact, settles into or maintains or
centralizes his or her ordinary mode of living, including social relations,
interests and conveniences. The question becomes whether an applicant's
linkages suggest that Canada is his or her home,
regardless of any absences from the country.
Justice Reed has outlined the third
approach, which is really just an extension of Justice Thurlow's test. In Re:
Koo, [1993] 1 F.C. 286 59 F.T.R. 27 (F.C.T.D.), Justice Reed held that the
question before the Court is whether Canada
is the country in which an applicant has centralized his or her mode of
existence. This involves consideration of several factors:
1. Was the individual physically present
in Canada for a long period prior to
recent absences which occurred immediately before the application for
citizenship?
2. Where are the applicant's immediate
family and dependents (and extended family) resident?
3. Does the pattern of physical presence
in Canada indicate a returning home or
merely visiting the country?
4. What is the extent of the physical
absences - if an applicant is only a few days short of the 1095 day total it is
easier to find deemed residence than if those absences are extensive?
5. Is the physical absence caused by a
clearly temporary situation such as employment as a missionary abroad,
following a course of study abroad as a student, accepting temporary employment
abroad, accompanying a spouse who has accepted temporary employment abroad?
6. What is the quality of the connection
with Canada: is it more substantial than
that which exists with any other country?
The general principle is that the quality
of residence in Canada must be more substantial than
elsewhere. See also Lin v. Canada (Minister of Citizenship and Immigration) (2002), 21 Imm. L.R. (3d)
104, 2002 FCT 346.
[9]
While the Re
Koo test appears to have become the dominant test, perhaps in part because
the six questions were specifically set out on a form used by citizenship
judges, Justice Harrington reaffirmed the continuing availability of other
tests in Canada (Minister of Citizenship and Immigration) v. Wall, 2005
FC 110, [2005] F.C.J. No. 146 (QL). In applying either the Re Papadogiorgakis
or the Re Koo tests, the analysis is divided into two parts: whether
the applicant has established residency in Canada and whether the applicant has maintained
that residency. The establishment of residency is thus, a preliminary step in
this analysis (Eltom v. Canada (Minister of Citizenship and Immigration), 2005 FC 1555, [2005] F.C.J.
No. 1979 (QL) at para. 21 (Eltom); Canada (Minister of Citizenship
and Immigration) v. Nandre, 2003 FCT 650, [2003] F.C.J. No. 841 (QL) and Chan
v. Canada (Minister of Citizenship and
Immigration),
2002 FCT 270, [2002] F.C.J. No. 376 (QL)).
[10]
A
citizenship judge may adopt and apply whichever of the three tests she or he
chooses as long as it is applied properly: Lam v. Canada (Minister of
Citizenship and Immigration) (1999), 164 F.T.R. 177 [1999] F.C.J. No. 410
(QL). Again, I emphasize that the approach taken in Re Papadogiorgakis
and Re Koo as opposed to the approach taken in So, does not
require physical presence of the applicant for citizenship for the entire minimum
period of residence of 1,095 days (which is the case under the first test).
However, each absence from Canada must nevertheless be
explained. Moreover, the absences of a temporary nature must also be clarified,
otherwise, it cannot be said that the applicant has established and/or
maintained his or her residence in Canada.
The case law in this regard is therefore very fact specific. (See for example, Shanechi
v. Canada (Minister of Citizenship and
Immigration), 2004
FC 1018, [2004] F.C.J. No. 1234 (QL) at para. 10).
[11]
I find
that the Citizenship Judge’s decision is unreasonable whatever test she may
have applied. In this instance, although the Citizenship Judge determined that
the respondent had established and maintained his residence in Canada, it is unclear to the Court whether
she arrived at this conclusion having applied the Re Papadogiorgakis test
or the Re Koo test, or both at the same time. The Citizenship Judge never
clearly determined in the impugned decision whether the respondent had, in
fact, centralized his ordinary mode of living in Canada (which is the case for his wife and children).
[12]
To meet
the residence requirement elucidated at para. 16 of Re Papadogiorgakis which
is the test that has been applied here in the respondent submissions, a
citizenship judge must evaluate “the degree to which a person in mind and fact
settles into or maintains or centralizes his ordinary mode of living with its
accessories in social relations, interests and conveniences at or in the place
in question.” In Re Papadogiorgakis, when the applicant Papadogiorgakis
left Canada to attend a non-Canadian
university, he did so only for the temporary purpose of pursuing his studies
and “without closing out or breaking the continuity of his maintaining or
centralizing his ordinary mode of living there”: Re Papadogiorgakis, at
para. 17. However, in the case at bar, the Citizenship Judge has simply failed
to make relevant determinations of fact which are fundamental to the
application of either the Re Papadogiorgakis test or the Re Koo test.
[13]
For instance,
the Citizenship Judge noted that the respondent’s immediate family and
dependents are citizens and residents of Canada. However, as was stated by the Court in Eltom,
above, at para. 22, this factor alone is not determinative:
While the Koo test does look at the
residence of an applicant's family, an applicant cannot rely solely on this in
order to establish his own residence. In Faria c. Canada (Minister of Citizenship and
Immigration),
[2004] F.C.J. No. 1849, the court held that the applicant could not
"bootstrap" his way into residency based on the conduct of his family
(para 12). (See also Canada (Minister of Citizenship and Immigration) v.
Chang, [2003] F.C.J. No. 1871, 2003 FC 1472).
[14]
I also
note that the Citizenship Judge never evaluated the quality of the respondent’s
connection with Canada. Given the fact that the
respondent has admitted he spent 893 days in China during his relevant period,
the Citizenship Judge’s failure to even evaluate whether the respondent’s
connection to Canada is more substantial than that which exists with any other
country is a misapplication of the law or, at the very least, a misunderstanding
of the Re Koo test, assuming for a moment that the Citizenship Judge may
have been applying the Re Koo test as it is implied by the applicant.
[15]
I have no
doubt that the respondent is very eager to become a Canadian citizen since his
wife and two children (the respondent’s daughter was born in Canada in December 2001) are already
Canadian citizens. However, the respondent felt it necessary to voluntarily
choose to establish his business outside Canada for the economic well being of his
family. The respondent’s wife and children have many reasons to be proud of
him, as he is a responsible and very hard working individual. Unfortunately,
during the relevant 1,460 day period and it appears that it is still the case today,
the respondent has spent more time in China than in Canada. Moreover, the record presently
constituted does not permit me to infer that his several absences from Canada are clearly temporary as
suggested by the respondent at the hearing. Indeed, the Citizenship Judge’s
conclusion that “Canada is where [the respondent]
resides and that working in China is a temporary situation in
his case” is simply not supported by the evidence on record. Accordingly, this
conclusion is unreasonable in the sense that it falls outside the “range of
possible, acceptable outcomes which are defensible in respect of the facts and
law” (Dunsmuir, at para. 47). Again, I emphasize that the Citizenship
Judge does not provide a clear or convincing rationale as to why the respondent
has centralized his ordinary mode of living in Canada and why his several
absences from Canada during his relevant period were temporary in each instance
(which would permit the counting as if the respondent would not have left
Canada during each absence).
[16]
For these
reasons, the appeal is allowed. The respondent’s application for citizenship
shall be returned for reconsideration by a new citizenship judge. In light of
this conclusion, it is not necessary to canvass the other issues raised by the
appellant in this appeal.
ORDER
THIS COURT ORDERS that the appeal is allowed and the
matter is returned for reconsideration by a different citizenship judge.
“Luc Martineau”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-2233-07
STYLE OF CAUSE: MCI
v. XIN ZHOU
PLACE OF
HEARING: Vancouver, British Columbia
DATE OF
HEARING: July
30, 2008
REASONS FOR ORDER MARTINEAU
J.
AND ORDER:
DATED: August
11, 2008
APPEARANCES:
Banafsheh
Sokhansanj
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FOR THE APPELLANT
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Xin Zhou
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FOR THE RESPONDENT
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SOLICITORS
OF RECORD:
John H. Sims
Q.C.
Deputy
Attorney General of Canada
Vancouver, B.C.
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FOR THE APPELLANT
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