Canada (Minister of Citizenship and Immigration) v. Chen, 2003 FCT 192

Date: 20030219

Docket: T-2062-97

Neutral citation: 2003 FCT 192

Ottawa, Ontario, this 19^th day of February, 2003

Present:           THE HONOURABLE MADAM JUSTICE SNIDER

BETWEEN:

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                       Applicant

                                                                                 and

                                                                 CHIU YUEH CHEN

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 This is an appeal by the Deputy Attorney General, on behalf of the Minister of Citizenship and Immigration, from the decision of Citizenship Judge W.A. Borosa (the "Citizenship Judge"), dated July 23, 1997 wherein the citizenship Judge approved the application of Chiu Yueh Chen (the "Respondent") for a grant of citizenship under subsection 5(1) of the Citizenship Act, R.S.C. 1985, c. C-29.

[2]                 The Notice of Appeal in this case was filed on September 18, 1997. As this appeal was filed before April 25, 1998, the Federal Court Rules, 1998 do not apply, and this citizenship appeal took the form of a trial de novo pursuant to former Rule 912 (Canada (Minister of Citizenship and Immigration) v. Chan, [1998] F.C.J. No. 742 (T.D.) (QL)).

[3]                 The Respondent did not appear on this matter. However, I was satisfied that she was properly served with the notice of the hearing.

Background

[4]                 The Respondent is a fifty-one year old female citizen of Taiwan. She first arrived in Canada on March 28, 1992.

[5]                 The Respondent applied for citizenship on April 8, 1996. During the four years preceding this application, the Respondent was absent from Canada for 1219 days and present in Canada for only 241 days. This represents a shortfall of 854 days. During that time, the Respondent was in Taiwan.

[6]                 The Respondent pays Canadian income tax, has a Canadian bank account, pays medical premiums in Canada, maintains memberships in Canadian associations and owns property in Canada. The Respondent's husband and adult children became Canadian citizens in 1996.

[7]                 The Citizenship Judge approved the Respondent's application for citizenship on July 23, 1997, by signing what appears to be a standard form judgment:

Despite a residence shortage of 854 days, the applicant, through credible declaration of intent and the provision of irrefutable indicia, has, within the THURLOW FRAMEWORK given proof of both the establishment and maintenance of a Canadian centrality of mode of living. I have, therefore, all other requirements having been met, approved this application for citizenship.

[8]         The Minister appeals on the ground that during the four years preceding the date of the application for citizenship, the Respondent did not accumulate three years of residence in Canada as required by paragraph 5(1)(c) of the Citizenship Act. The issue, therefore, is whether the Respondent has satisfied the residency requirement under paragraph 5(1)(c) of the Citizenship Act.

Relevant Statutory Provisions and Rules

[9]                 Subsection 5(1) of the Citizenship Act sets out the criteria for the granting of Canadian citizenship. Paragraph 5(1)(c) is at issue in this case:

Analysis

[10]            Under the old rules, citizenship proceedings were proceedings de novo. In Chan, supra, Rothstein J. concluded at paragraph 7 that "the hearing in citizenship appeals, where the appeal was filed in this Court before the coming into force of the Federal Court Rules, 1998, should proceed by way of trial de novo and that Part 5 of the Federal Court Rules, 1998 should apply to citizenship appeals filed in the Court after the coming into force of the new Rules." The new rules came into force on April 25, 1998.

[11]            In the case of a trial de novo, the Court "must re-hear the case as if it were hearing the matter for the first time and decide accordingly" (In re Citizenship Act and in re Israel Jacob Aaron, [1982] 2 F.C. 348 at 349 (T.D.)). Thus, my task is not merely one of determining whether "the Citizenship Judge, in clear reasons..., properly decide[d] that the facts satisfied their view of the statutory test in subparagraph 5(1)(c)" as stated by Lutfy J., as he then was, in Lam v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 410 (T.D.) (QL). Rather, I must explain my own view of the meaning of subparagraph 5(1)(c) and apply that to the facts of this case.

[12]            This Court has taken two different views of the interpretation of subparagraph 5(1)(c).

[13]            The first of these tests can be characterised by its strict application of the residence requirement. This approach of physical presence is espoused by Muldoon J. in Re Pourghasemi, [1993] F.C.J. No. 232 where he stated that:

That provision exacts that the applicant must have "within the four years immediately preceding the date of his application, accumulated at least three years of residence in Canada...". Parliament introduces an element of emphasis into the statutory text by enacting "...at least three years of residence in Canada...". Those emphasized words are unnecessary, except for emphasis. ...In drawing a purposive interpretation of the statutory language it should be asked: Why did Parliament prescribe at least 3 years of Canadian residence in the 4 years immediately before applying for citizenship?

It is clear that the purpose of paragraph 5(1)(c) is to insure that everyone that who is granted precious Canadian citizenship has become, or at least has been compulsorily presented with the everyday opportunity to become "Canadianized".

[14]            In my view, the reasoning of Muldoon J. in applying a strict test of physical presence in the context of citizenship applications is compelling. The statute is clear. The intent of Parliament was described by Reed J. in Re Koo, [1993] 1 F.C. 286 at 292 (T.D.) as follows:

In some decisions it has been suggested that the changes in the Citizenship Act which were made in 1978 [S.C. 1976-77, c. 52 s. 128] lead to the conclusion that Parliament intended that physical presence for the whole three-year period was not required. This is said to be related to the removal from the Act of qualifications based on domicile. I have read the Parliamentary debates and committee proceedings of that period and can find nothing to substantiate that conclusion. Indeed, quite the contrary seems to be the case. The requirement of three-year residence within a four-year period seems to have been designed to allow for one-year's physical absence during the four-year period. Certainly, the debates of the period suggest that physical presence in Canada for 1,095 days was contemplated as a minimum.

[15]            I acknowledge that there is significant jurisprudence of this Court that would allow flexibility in "counting" days of residence and that would accept various indicia as evidence of the establishment and maintenance of a residence in Canada. However, I am of the opinion that Parliament was clear that the honour of citizenship should not be bestowed on an applicant who does not have the required number of days of physical presence in Canada.

[16]            There may be very exceptional circumstances that would dictate otherwise but, in my view, exceptions should be made very sparingly. Indeed, I believe that subsection 5(4) was specifically included to acknowledge extraordinary circumstances. That provision states as follows:

[17]            Another unusual situation is described in subsection 5(1.1) which allows for a special counting for some persons employed outside of Canada in or with the Canadian Armed Forces or the Public Service of Canada.

[18]            In conclusion on this point, I believe that the better view of the meaning of subparagraph 5(1)(c) is one that takes a strict view of the residency requirement. Accordingly, physical presence for at least three years within the four years immediately preceding the date of application is required.

[19]            When applied to the facts of this case, it is clear that the Respondent does not meet the requirements of subparagraph 5(1)(c) of the Citizenship Act. She was only in Canada for a total of 241 days during the relevant time. This represents a shortfall of 854 days.

[20]            Even if I were to accept that the correct test is the one stated In re Citizenship Act and in re Antonios E. Papadogriorgakis, [1978] 2 F.C. 208 (T.D.) as modified by Re Koo, supra , I nevertheless would come to the same conclusion.

[21]            In Re Koo, supra, Reed J. listed six factors at pages 293 and 294 which point to sufficient attachment to Canada so as to allow for the granting of citizenship, even where the required minimum number of days has not been met:

The conclusion I draw from the jurisprudence is that the test is whether it can be said that Canada is the place where the applicant "regularly, normally or customarily lives". Another formulation of the same test is whether Canada is the country in which he or she has centralized his or her mode of existence. Questions that can be asked which assist in such a determination are:

(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 dependants (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 1,095-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 employment abroad?

(6) what is the quality of the connection with Canada: is it more substantial than that which exists with any other country?

[22]            In my view, when the facts of this case are examined, it is apparent that the Respondent does not meet the centralized mode of living test.

[23]            The Respondent was not physically present in Canada for a long period of time prior to recent absences which occurred immediately before the application for citizenship. After arriving in Canada on March 28, 1992, the Respondent left for Taiwan approximately nineteen days later, on April 16, 1992.

[24]            The Respondent's immediate family lives in Canada. Her mother, mother-in-law and father-in-law, all of whom appeared to have been dependant on the Respondent, remained in Taiwan.

[25]            In my view, the pattern of physical presence in Canada indicates that the Respondent merely returned to Canada to visit her family. Her longest stay in Canada was approximately 24 days, which is significantly less than her shortest stay in Taiwan, which was 79 days. The Respondent spent anywhere between 10 days and 24 days at a time in Canada before leaving again for Taiwan. In my view, the comments of Joyal J. in Re Chung, [1997] F.C.J. No. 1749 at paragraph 4 (T.D.) (QL) are particularly appropriate in this case:

What bothers me in this case... is not only the appellant's numerous and lengthy absences from Canada, but the extremely short periods of actual physical presence here during the four years preceding the citizenship application. This is not to suggest that he is unsuitable for Canadian citizenship, or that the Canadian citizenship now enjoyed by his spouse and children is not pretty much an open door for his own entry. Rather, it is meant to show respect for the will of Parliament when it imposed the three-year rule in the statute, a respect which is surely lacking if the rule can be easily broken by simple judicial fiat.

[26]            Furthermore, the extent of the Respondent's physical absences is significant. She was only present in Canada for 241 days out of the four years preceding her citizenship application, which represents a shortfall of 854 days.

[27]            Although all of her absences from Canada were due to illnesses and death in the family, it is not clear that this is a temporary situation. The Respondent returned to Taiwan for a significant amount of time in order to care for her mother and her in-laws. Her sworn statement indicates that she views this as her duty, as it is "unthinkable" in her culture to desert her parents. At the time of her application for citizenship, her mother had passed away. However, there is no evidence regarding the health status of her in-laws. As a result, I must conclude that the Respondent's trips to Taiwan will continue as her elderly in-laws will continue to require her care and assistance.

[28]            When all of the above facts and the passive indicia of residence in Canada are considered, it is clear that the Respondent's connection with Taiwan is more substantial than her connection with Canada. The Respondent spends the vast majority of her time with her family in Taiwan. Although her husband and adult children live in Canada and are Canadian citizens, this appears to be the extent of her connection with Canada.

[29]            The evidence simply does not indicate that she has centralized her mode of existence in Canada.

[30]            Consequently, on either test, the Respondent does not meet the requirements for residency as set out in subparagraph 5(1)(c) of the Citizenship Act and this appeal will be allowed.

                                                  ORDER

THIS COURT ORDERS that:

            1.         the decision of the Citizenship Judge dated July 23, 1997 is quashed;

            2.         the application of the Respondent for citizenship is disapproved.

                "Judith A. Snider"                

JUDGE

             FEDERAL COURT OF CANADA

    Names of Counsel and Solicitors of Record

DOCKET:                                                    T-2062-97

STYLE OF CAUSE:                           THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

- and -

CHIU YUEH CHEN

PLACE OF HEARING:         TORONTO, ONTARIO

DATE OF HEARING:           WEDNESDAY, FEBRUARY 12, 2003   

REASONS FOR ORDER BY:                       SNIDER J.

DATED:                              WEDNESDAY, FEBRUARY 19, 2003    

APPEARANCES BY:                Mr. Greg G. George

                                                             For the Applicant

No Appearance

For the Respondent

SOLICITORS OF RECORD:        Mr. Greg G. George

Deputy Attorney General of Canada

For the Applicant             

Ms. Chiu Yueh Chen

Markham, Ontario

For the Respondent

FEDERAL COURT OF CANADA

             Date: 20030218

      Docket: T-2062-97

BETWEEN:

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Applicant

- and -

CHIU YUEH CHEN

                     Respondent

REASONS FOR ORDER