Gao v. Canada (Minister of Citizenship and Immigration), 2003 FCT 605

Date: 20030515

Docket: T-876-01

Neutral citation: 2003 FCT 605

Ottawa, Ontario, this 15th day of May, 2003

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                                                      XUE JUN GAO

                                                                                                                                                       Applicant

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 This is an appeal of the decision of a Citizenship Judge, dated March 27, 2001, wherein the applicant's application for Canadian citizenship was denied.

[2]                 The applicant seeks an order quashing the decision of the Citizenship Judge. The applicant also seeks a writ of mandamus directing the respondent to process the applicant's application for Canadian citizenship as requested in accordance with the law, a declaratory order that the applicant's application for citizenship be processed within 30 days of the order and his costs of the application.

Background

[3]                 The applicant, Xue Jun Gao, was born in the People's Republic of China. At the time of his citizenship hearing, the applicant was married with two daughters aged eight and four years old. When he decided to move his family to Canada, the applicant quit his job in China, and gave up his company-owned apartment.

[4]                 The applicant came to Canada on February 19, 1996. He returned to China two days later. On April 28, 1996, the applicant brought his wife and eldest daughter to Canada. The youngest child was born in Canada.

[5]                 The applicant commenced full-time employment in Canada at Seaspan Shipbrokers Ltd. on May 1, 1996. By the end of that same month, the applicant had arranged for the following:

1.          His daughter's daycare;

2.          A social insurance number;

3.          A medical plan;

4.          The purchase of a Honda Civic, as well as car insurance and a Canadian driver's licence;

5.          Seting up bank accounts;

6.          Making contact with old friends living in the Vancouver area; and

7.          Looking for a house.

[6]                 The applicant's wife became pregnant in June 1996. The applicant and his wife bought a home in Richmond, B.C. later in the summer. By the end of 1996, the applicant claims that although he was spending most of his time working or with his family, he found time to:

1.          Help another local company develop their business with China;

2.          Help new residents look for and settle in homes;

3.          Make donations;

4.          Join community centre activities, visit libraries; and

5.          Become a member of his neighbourhood watch.

[7]                 Things went well for the applicant until August 31, 1997, when he was laid off due to downsizing. The applicant looked for another job, but was unsuccessful. Because he could not find employment in Canada, the applicant began his own company on January 25, 1998, named Reklub Shipping Ltd.

[8]                 Reklub Shipping Ltd. is a ship-brokering business. The applicant's clients are generally shipowners, charterers, and cargo owners. The applicant acts as a go-between for these clients. For instance, if a cargo owner needs to ship goods overseas, the applicant finds an appropriate vessel and negotiates the contracts on behalf of the client. He then charges a brokerage commission.

[9]                 Because commodities and clients are located all over the world, the applicant has been absent from Canada for substantial periods of time since starting his business. His absences have been business-related. The applicant's history of time spent away from Canada since arriving is as follows:

[10]            Of the 1,095 days the applicant was required to be in Canada in order to be eligible for citizenship, the applicant has only accumulated 783 days. This is a 312 day shortfall.

[11]            The applicant applied for Canadian citizenship on September 28, 2000. The applicant wrote and passed the written exam on January 9, 2001. He was subsequently convoked for an interview before a Citizenship Judge on March 22, 2001.

[12]            According to the applicant's affidavit regarding the interview, the applicant and the judge briefly discussed the applicant's family. The applicant then attempted to explain his business and the reasons for his extended absences from Canada. According to the applicant, the judge was disinterested in understanding the nature of the applicant's business, and cut him off before he had the chance to fully explain the reason why he had begun his own business.

[13]            Along with his application, the applicant submitted extensive materials to show his connections to Canada. These materials included his mortgage papers, his bank account statements, a Canadian certificate of incorporation for his company, his daughter's report cards, proof of his wife's enrollment in a community college, proof that his wife and daughter are Canadian citizens, Canadian tax returns, property assessments, proof of enrollment in B.C.'s Medical Services Plan, and his vehicle registration and insurance.

[14]            On March 27, 2001, the applicant received a letter advising that his application for Canadian citizenship had not been approved because the applicant did not meet the residency requirements. The Citizenship Judge stated, in part:

Until the date of your citizenship application on September 27, 2000 you were absent for approximately 677 days and present for only 783, leaving you short 312 of the required 1095 days. A full review of your case has led me to conclude that your substantive absences from Canada cannot be counted as periods of residence under the Act.

I have considered and decided against making an affirmative recommendation under Subsection 5(3) or 5(4) of the Act, especially since there was no evidence of any health disability, or any special or unusual hardship, or services of an exceptional value to Canada.

[15]            In his notes, the Citizenship Judge indicated: "no additional or extenuating circumstances were submitted - cannot comply 5(1)(c)."

[16]            The applicant now seeks judicial review of this decision.

Issues

[17]            1.          Did the Citizenship Judge err in law in failing to clearly articulate the legal test applied to determine if the applicant met the requirements of paragraph 5(1)(c)?

2.          Did the Citizenship Judge misconstrue or disregard the facts in this case to the extent that he erred in law pursuant to paragraph 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7?

3.          If the Citizenship Judge did clearly articulate a legal test for residency, did the Citizenship Judge err in fact and in law by failing to explain why the applicant did not meet the residency requirement?

4.          Did the Citizenship Judge deny the applicant procedural fairness?

Relevant Statutory Provisions and Regulations

[18]            The relevant subsections of the Citizenship Act, R.S.C. 1985, c. C-29 state:

[19]            Subsections 24.(1) and (2) of the Immigration Act, R.S.C. 1985, c. I-2 state:

Analysis and Decision

[20]            Issue 1

Did the Citizenship Judge err in law in failing to clearly articulate the legal test applied to determine if the applicant met the requirements of paragraph 5(1)(c)?

In Lam v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 410 (QL)

(T.D.) Lutfy J. (as he then was) outlined the standard of review to be applied in citizenship appeals. Lutfy J. (as he then was) stated at paragraph 33:

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.

I will adopt that standard in this case.

[21]            Various tests have been put forward in this Court to determine whether an applicant meets the residency requirements for citizenship. In Canada (Minister of Citizenship and Immigration) v. Mahadeo, [1999] F.C.J. No. 1521 (QL) (T.D.), Reed J. stated at paragraph 3:

In any event, I accept Mr. Justice Lutfy's analysis in Lam v. Canada (Minister of Citizenship and Immigration) (1996), 36 Imm. LR. (2d) 29. I agree that in this period of transition from hearing de novo to appeals by way of application, and in view of the amending legislation now before the House of Commons, a citizenship judge's decision should not be overruled because one test rather than the other is applied, providing the judge articulates the test being used and explains why it is met or not met in the instant case.

[22]            As noted in Mahadeo, supra, the Citizenship Judge must clearly state which test is being applied and explains why the test is or is not met in the case being decided.

[23]            I have reviewed the letter dated March 27, 2001 to the applicant from the Citizenship Judge (tribunal record page 9) and the Notice to the Minister of the Decision of the Citizenship Judge (tribunal record page 11) and I am of the view that the Citizenship Judge did not articulate which test he was using to determine whether the applicant met the residency requirements for citizenship. As well, neither the letter, nor the reasons indicate why the days the applicant was physically absent from Canada were not counted towards the 1,095 day residency requirement.

[24]            For the above reasons, I am of the view that the Citizenship Judge erred. The appeal of the applicant is allowed and the decision of the Citizenship Judge is set aside. The matter is referred to a different Citizenship Judge for reconsideration.

[25]            Because of my finding on Issue 1, I need not deal with the remaining issues.

[26]            I am not prepared to grant the other relief requested by the applicant, nor am I prepared to make an order for costs.

ORDER

[27]            IT IS ORDERED that the appeal of the applicant is allowed and the matter is referred to a different Citizenship Judge for reconsideration.

                                                                                   "John A. O'Keefe"             

                                                                                                      J.F.C.C.                      

Ottawa, Ontario

May 15, 2003

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   T-876-01

STYLE OF CAUSE: XUE JUN GAO

- and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

PLACE OF HEARING:                                   Toronto, Ontario

DATE OF HEARING:                                     Wednesday, February 5, 2003

REASONS FOR ORDER AND ORDER OF O'KEEFE J.

DATED:                      Thursday, May 15, 2003

APPEARANCES:

Mary Lam

FOR APPLICANT

Pamela Larmondin

FOR RESPONDENT

SOLICITORS OF RECORD:

Mary Lam

206 Bloor Street West

Suite 3

Toronto, Ontario

M5S 1T8

FOR APPLICANT

Morris Rosenberg, Q.C.

Deputy Attorney General of Canada

FOR RESPONDENT