Date: 20030217
Docket: T-1350-01
Neutral citation: 2003 FCT 174
Ottawa, Ontario, this 17th day of February, 2003
Present: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
WAI CHUAN SIMON CHU
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of Citizenship Judge Doreen Wicks (the "Citizenship Judge"), dated June 12, 2001, wherein the Citizenship Judge did not approve the application of Wai Chuan Simon Chu (the "Applicant") for a grant of citizenship under subsection 5(1) of the Citizenship Act, R.S.C. 1985, c. C-29.
Background
[2] The Applicant was born in China. On February 22, 1996, he was granted permanent residence in Canada as an investor under the Immigration Regulations, 1978, S.O.R./78-172, as amended.
[3] Upon arrival in Canada, the Applicant and his wife moved into his sister-in-law's house, unpacked their belongings, set up a bank account, applied for social insurance and health cards, obtained a job and searched for a suitable school for their sons. They wife were unable to find a suitable school because it was mid-way through the school year. As a result, they returned to Hong Kong on March 1, 1996 so that their sons could complete the school semester in Hong Kong. They returned to Canada on July 27, 1996.
[4] Before immigrating to Canada, the Applicant worked as a General Manager of Brimeland Company Limited (a.k.a. H.K. Brimeland Ltd.) in Hong Kong. The Applicant terminated this employment when he left for Canada. Once in Canada, he accepted an offer of employment from CFS International Inc. ("CFS"), which is the majority owner of H.K. Brimeland Ltd. ("H.K. Brimeland"). The Applicant was offered the position of General Manager of H.K. Brimeland for a three-year term commencing July 1, 1996. The place of work specified in this contract was "H.K. and China mainland." The Applicant was provided with a furnished apartment in Hong Kong and received 50 days of paid vacation per year, which he spent in Canada. The Applicant derives his income from the Canadian company CFS and not its foreign subsidiary
[5] On October 1, 1997, the Applicant and his wife purchased a home in North York. The Applicant's wife, two sons and mother have lived in this home since it was built. The Applicant has a doctor and dentist in Canada, two bank accounts with TD-Canada Trust and he files Income Tax and Benefit Returns in Canada. The only real property that he owns is the home in North York.
[6] By application dated February 28, 1999, the Applicant and his family applied for Canadian citizenship, just over three years after they first landed in Canada. His wife and two sons received their citizenship on March 27, 2001. The Applicant was not granted citizenship because of his absences from Canada. In the three years preceding his application for Canadian citizenship, the Applicant was absent from Canada for 970 days and physically present in Canada for only 131 days. This represented a shortfall of 964 days.
[7] In her Notice to the Minister of the Decision of the Citizenship Judge, the Citizenship Judge gave the following reasons for not approving the Applicant's application for citizenship:
Applicant has business in China. Applicant is in China more than in Canada. No centralized mode of living. Applicant is hoping to stay in Canada a lot more in about 2 years time.
[8] This application was incorrectly brought as an application for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7. The proper course of action is to bring an appeal of the decision of the Citizenship Judge.
[9] On January 25, 2002, the Applicant brought a motion for a substitution of the originating document pursuant to Rule 57 of the Federal Court Rules, 1998. By order dated February 8, 2002, Prothonotary Lafrenière adjourned the hearing of this motion to the date of the hearing of the judicial review application.
Applicant's Submissions
[10] The Applicant submitted that this application should not be dismissed on the grounds that the proceeding is improperly constituted. The Applicant relies on Rule 57 of the Federal Court Rules, 1998 and cases which have applied that rule for this submission (Khaper v. Canada, [1999] F.C.J. No. 1735 (T.D.) (QL); McLean v. Canada, [1999] F.C.J. No. 400 (T.D.) (QL)).
[11] The Applicant further submitted that the Citizenship Judge erred by not stating which residency test she was using. Since the Applicant could not meet the physical presence test, the Thurlow test or centralized mode of living test should have been used. The Citizenship Judge failed to consider the circumstances of the Applicant. Although she asked the Applicant for information pursuant to the Thurlow test, she erred by refusing his application for citizenship. When the Thurlow test is applied, it is clear that the Applicant has centralized his mode of living in Canada and the Citizenship Judge's refusal to grant citizenship was incorrect (Lam v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 410 (T.D.) (QL); Canada (Minister of Citizenship and Immigration) v. Hung, [1998] F.C.J. No. 1927 (T.D.) (QL)).
Respondent's Submissions
[12] The Respondent submitted that this proceeding is improperly constituted pursuant to its governing legislation and is, therefore, fundamentally flawed. In this case, the defect goes to the heart of the Court's jurisdiction. Section 18.5 of the Federal Court Act deprives this Court of jurisdiction over the application for judicial review and the proceeding must be dismissed on that ground.
[13] The Respondent submitted that the allowance by Parliament for one year of absence during the four-year period preceding the citizenship application creates a strong inference that the presence in Canada during the other three years must be substantial. Recent jurisprudence of this Court has continued to emphasize the need for a substantial physical presence in Canada (Re Chow, [1997] F.C.J. No. 7 (T.D.) (QL); Canada (Minister of Citizenship and Immigration) v. Ho, [1999] F.C.J. No. 276 (T.D.) (QL); Jreige v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1469 (T.D.) (QL)). As stated by Lutfy J., as he then was, in Lam, supra, it is open to the Citizenship Judge to adopt whichever residency test she prefers. Contrary to the assertion of the Applicant, the Citizenship Judge treated the counting of days of physical presence in Canada as having considerable significance and she had regard to Applicant's submission that the Thurlow test should be applied. The Citizenship Judge properly concluded that the Applicant had not centralized his mode of existence in Canada. The fact that the Applicant had obtained a returning residence permit does not indicate that he met the residency requirements of paragraph 5(1)(c) of the Citizenship Act (Yip v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1393 (T.D.) (QL)).
[14] The Respondent submits that the facts of Canada (Minister of Citizenship and Immigration)v. Lu, [1999] F.C.J. No. 479 (T.D.) (QL), in which Gibson J. concluded that there was no basis for concluding that Mr. Lu had integrated himself into Canadian society, are similar to those in the present case. Furthermore, the Respondent adopts the statements of Rothstein J. in Canada (Minister of Citizenship and Immigration) v. Lu, [1998] F.C.J. No. 1709 (T.D.) (QL), that applicants for Canadian citizenship must be scrupulous in complying with Canadian income tax requirements. Finally, in the Respondent's submission, the Applicant made a premature application for citizenship.
Relevant Statutory Provisions and Rules
[15] 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:
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5. (1) The Minister shall grant citizenship to any person who
...
(c) has been lawfully admitted to Canada for permanent residence, has not ceased since such admission to be a permanent resident pursuant to section 24 of the Immigration Act, and has, within the four years immediately preceding the date of his 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;
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5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois_:
...
c) a été légalement admise au Canada à titre de résident permanent, n'a pas depuis perdu ce titre en application de l'article 24 de la Loi sur l'immigration, 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;
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[16] Subsection 14(5) of the Citizenship Act provides for an appeal from the decision of the Citizenship Judge to the Federal Court, Trial Division:
| (5) The Minister or the applicant may appeal to the Court from the decision of the citizenship judge under subsection (2) by filing a notice of appeal in the Registry of the Court within sixty days after the day on which
(a) the citizenship judge approved the application under subsection (2); or
(b) notice was mailed or otherwise given under subsection (3) with respect to the application.
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(5) Le ministre et le demandeur peuvent interjeter appel de la décision du juge de la citoyenneté en déposant un avis d'appel au greffe de la Cour dans les soixante jours suivant la date, selon le cas :
a) de l'approbation de la demande;
b) de la communication, par courrier ou tout autre moyen, de la décision de rejet.
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[17] Section 18.5 of the Federal Court Act states that where an Act of Parliament expressly makes provision for an appeal of a decision, that decision is not subject to judicial review:
| 18.5 Notwithstanding sections 18 and 18.1, where provision is expressly made by an Act of Parliament for an appeal as such to the Court, to the Supreme Court of Canada, to the Court Martial Appeal Court, to the Tax Court of Canada, to the Governor in Council or to the Treasury Board from a decision or order of a federal board, commission or other tribunal made by or in the course of proceedings before that board, commission or tribunal, that decision or order is not, to the extent that it may be so appealed, subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with, except in accordance with that Act.
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18.5 Par dérogation aux articles 18 et 18.1, lorsqu'une loi fédérale prévoit expressément qu'il peut être interjeté appel, devant la Cour fédérale, la Cour suprême du Canada, la Cour d'appel de la cour martiale, la Cour canadienne de l'impôt, le gouverneur en conseil ou le Conseil du Trésor, d'une décision ou d'une ordonnance d'un office fédéral, rendue à tout stade des procédures, cette décision ou cette ordonnance ne peut, dans la mesure où elle est susceptible d'un tel appel, faire l'objet de contrôle, de restriction, de prohibition, d'évocation, d'annulation ni d'aucune autre intervention, sauf en conformité avec cette loi.
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[18] Rule 57 of the Federal Court Rules, 1998 states that an originating document shall not be set aside only on the ground that a different originating document should have been used:
| 57. An originating document shall not be set aside only on the ground that a different originating document should have been used.
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57. La Cour n'annule pas un acte introductif d'instance au seul motif que l'instance aurait dû être introduite par un autre acte introductif d'instance
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Analysis
Issue #1: Should this application be dismissed on the grounds that the proceeding is improperly constituted?
[19] This proceeding was inadvertently brought by way of an application for judicial review instead of an appeal. For the reasons that follow, I am of the view that Rule 57 of the Federal Court Rules, 1998, which has not been used very often, should apply to this case.
[20] In Shun v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1382 (C.A.) (QL), the Applicant brought both an application for judicial review and an appeal of the negative decision of the Citizenship Judge. The Federal Court of Appeal held that the proper recourse was an appeal, rather than a judicial review. Subsection 14(5) of the Citizenship Act provides a comprehensive right of appeal, which prevents the decision of a Citizenship Judge from being reviewed under section 18.1 of the Federal Court Act. In Shun, since the Applicant had already commenced an appeal under subsection 14(5) of the Citizenship Act in addition to his application for judicial review, the Court did not need to use Rule 57 to convert the application for judicial review to an appeal.
[21] Although Shun, supra is the only jurisprudence directly on point, I am of the view that the Applicant's motion, in the particular circumstances of this case, should be allowed and this application for judicial review should be converted to an appeal pursuant to Rule 57. This result would be in keeping with the spirit of Rule 57 and with the trend in the jurisprudence that the use of the incorrect originating document is an irregularity that can be remedied. In addition, the evidence in this case suggests that the use of the wrong originating document, a notice of application rather than a notice of appeal, was an unintentional error on the part of Applicant's counsel. In my view, the Applicant should not suffer for the mistake of his counsel and this application should be converted into an appeal.
Issue #2: Did the Citizenship Judge err in fact and in law by not stating which test she was applying and by not applying the facts to the test set out by Mr. Justice Thurlow in Re Papadogiorgakis?
[22] In my view, the Citizenship Judge did not err.
[23] The appropriate standard of review was set out by Lutfy J., as he then was, at paragraph 33 in Lam, supra:
Justice and fairness, both for the citizenship applicants and the Minister, require some continuity with respect to the standard of review while the current Act is still in force and despite the end of the de novo trials. The appropriate standard, in these circumstances, is one close to the correctness end of the spectrum. However, where citizenship judges, in clear reasons which demonstrate an understanding of the case law, properly decide that the facts satisfy their view of the statutory test in paragraph 5(1)(c), the reviewing judges ought not to substitute arbitrarily their different opinion of the residency requirement. It is to this extent that some deference is owed to the special knowledge and experience of the citizenship judge during this period of transition.
[24] Although the Citizenship Judge did not explicitly refer to the "Thurlow test" or the "Re Koo factors," she did conclude that the Applicant had not centralized his mode of existence in Canada. This conclusion demonstrates that the Citizenship Judge applied the centralized mode of existence test.
[25] In In re Citizenship Act and in re Antonios E. Papadogiorgakis, [1978] 2 F.C. 208 (T.D.), Thurlow A.C.J. set out the centralized mode of existence test at pages 213-214:
...It seems to me that the words "residence" and "resident" in paragraph 5(1)(b) of the new Citizenship Act are not as strictly limited to actual presence in Canada throughout the period as they were in the former statute but can include, as well, situations in which the person concerned has a place in Canada which is used by him during the period as a place of abode to a sufficient extent to demonstrate the reality of his residing there during the material period even though he is away from it part of the time...
A person with an established home of his own in which he lives does not cease to be resident there when he leaves it for a temporary purpose whether on business or vacation or even to pursue a course of study. The fact of his family remaining there while he is away may lend support for the conclusion that he has not ceased to reside there. The conclusion may be reached, as well, even though the absence may be more or less lengthy. It is also enhanced if he returns there frequently when the opportunity to do so arises. It is, as Rand J. [in [1946] S.C.R. 209">Thomson v. M.N.R., [1946] S.C.R. 209] appears to me to be saying in the passage I have read, "chiefly a matter of 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"
[26] In Re Koo, [1993] 1 F.C. 286 (T.D.) Reed J. set out a list of 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?
[27] Formal indicia of connection to Canada, such as a driver's licence, bank accounts and membership cards, will not be sufficient on their own to establish a centralized mode of existence in Canada. Rather, the quality of the Respondent's connection to Canada must indicate that he regularly, normally and customarily resides in this country (Re Koo, supra; Re Hul, [1994] F.C.J. No. 238 (T.D.) (QL)).
[28] On the facts of this case, the Applicant has a substantial number of formal indicia of connection to Canada: the Applicant and his wife own a home in North York; his immediate family resides in that home; the Applicant is employed by a Canadian corporation; the Applicant has been granted returning resident permits; he has an Ontario health card and driver's licence; he has a social insurance number; he has a Canadian bank account and credit card; and he files Income Tax and Benefit Returns.
[29] However, contrary to the assertion of the Applicant, when the Thurlow test is applied, it is not clear that the Applicant has centralized his mode of living in Canada. Although the Applicant has a large number of passive connections to Canada, he was absent for a significant amount of time in the three years preceding his citizenship application. The first of those absences occurred only seven days after he entered Canada as a permanent resident. The absences remained constant and significant over the next three years. The Applicant was never in Canada for more than twenty days at a time during the three years preceding his citizenship application. Although the majority of these absences were for business reasons, there is no indication that those absences were temporary in nature. In fact, the Applicant's employment contract with CFS clearly indicates that his place of work is Hong Kong and mainland China. In addition, the Applicant spent some of his holidays outside of Canada, which does not suggest that he "returns [to Canada] frequently when the opportunity to do so arises." The Applicant does not meet either the requirements of the Thurlow test or the majority of the factors set out by Reed J. in Re Koo, supra.
[30] As a result, while his family clearly centralized their mode of existence in Canada, there is no evidence that the Applicant did so as well. Consequently, the Citizenship Judge did not err in concluding that the Applicant had not centralized his mode of existence in Canada and in denying his citizenship application on that basis.
ORDER
NOW THIS COURT ORDERS that:
1. The application for judicial review is converted into an appeal of the decision of the Citizenship Judge, dated June 12, 2001;
2. This appeal is dismissed.
"Judith A. Snider"
JUDGE
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: T-1350-01
STYLE OF CAUSE: WAI CHUAN SIMON CHU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, FEBRUARY 11, 2003
REASONS FOR ORDER BY: SNIDER J.
DATED: MONDAY, FEBRUARY 17, 2003
APPEARANCES BY: Mr. Cecil L. Rotenberg
For the Applicant
Mr. Stephen H. Gold
For the Respondent
SOLICITORS OF RECORD: Mr. Cecil L. Rotenberg
Barristers & Solicitors
255 Duncan Mill Road
Suite 803
Don Mills, Ontario
M3B 3H9
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date:20030211
Docket: T-1350-01
BETWEEN:
WAI CHUAN SIMON CHU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
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