Date: 20031003
Docket: T-89-03
Citation: 2003 FC 1143
Ottawa, Ontario, this 3rd day of October, 2003
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
RITCHIE WOO
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an appeal pursuant to subsection 14(5) of the Citizenship Act, R.S.C., 1985, c. C-29 (the "Act"), and section 21 of the Federal Court Act, R.S.C. 1985, c. F-7 by the Minister of Citizenship and Immigration from the decision of Citizenship Judge Gurcharan Singh Bhatia, dated December 3, 2002, wherein the Citizenship Judge approved the application of the respondent for a grant of citizenship under subsection 5(1)(c) of the Act.
FACTS
[2] The respondent was born December 4, 1956 and is a citizen of China. The respondent entered Canada as a permanent resident on September 9, 1997, accompanied by his wife and daughter, both of whom are now Canadian citizens. He also has two brothers living in Canada, one being a Canadian citizen.
[3] The respondent and his wife purchased a home in Edmonton and lived there from December 4, 1997 to November 1, 1998. In November 1998 the respondent moved to another home in Edmonton purchased in the name of his wife. The respondent and his family still reside at that home.
[4] The respondent has been working for Primex China Group Inc since his arrival in Canada, as a project manager and cross-cultural business facilitator. This role has required the respondent to travel extensively on behalf of the company. Despite his absences the respondent has filed Canadian income tax returns for 1998, 2000, and 2001. He also has a social insurance number, an Alberta Health Care Card, driver's licence, Motor Association membership, Wildlife Identification number, and Canadian bank accounts.
[5] On March 25, 2002 the respondent applied for Canadian citizenship. The Citizenship Judge found that the respondent had been physically present in Canada for 577 days only, and was 518 days short of the statutory required 1095 days of residence in Canada. Despite this, the respondent was granted citizenship.
RELEVANT LEGISLATION
[6] Paragraph 5(1)(c) of the Act states:
Grant of citizenship
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;
Attribution de la citoyenneté
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;
STANDARD OF REVIEW
[7] The standard of review on an appeal of this nature is correctness insofar as it relates to the application of the residency test in paragraph 5(1)(c), see Zhang v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 778 at para. 7 (T.D.) (QL). Nonetheless, the Court should show some degree of deference to the Citizenship Judge and not substitute its opinion for that of the Judge where he or she, "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)", see Lam v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 177 at para. 33. The function of this Court is to verify that the Citizenship Judge has properly applied the test of his or her choosing, see Canada (Minister of Citizenship and Immigration) v. Mindich (1999), 170 F.T.R. 148 at para. 9.
TEST FOR RESIDENCY
[8] This Court has set out a number of different residency tests for paragraph 5(1)(c). In this case the Citizenship Judge appears to have used the tests set out in Papadogiorgakis (Re), [1978] 2 F.C. 208 (F.C.T.D.) (Papadogiorkakis) and in Koo (Re), [1993] 1 F.C. 286 (T.D.) (Koo).
[9] In Papadogiorkakis at para. 16 Thurlow, A.C.J. set out the "central existence" test (Thurlow test) such that notwithstanding absences that exceed the minimum requirements, the application hinges on whether or not the appellant has centralized their ordinary existence in Canada:
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. [[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"
[10] And in Koo at pp. 293-294, Madam Justice Reed set out a flexible six-part test for residency (Koo test) that is not dependent solely on how many days an applicant has been physically present in Canada:
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 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 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?
DECISION OF THE CITIZENSHIP JUDGE
[11] The Citizenship Judge found that during the four years prior to his application the respondent had been physically present for 577 days and absent from Canada for 883 days, for which he had obtained a Returning Resident permit for one year's absence. The applicant does not dispute that finding. The Citizenship Judge further found that the respondent's pattern of absences indicated a presence in Canada for almost 6 months before the respondent got busy with the China joint venture project, and that the respondent's presence in Canada had increased since June 2001. The applicant disputes the latter findings on the grounds that the respondent never spent more than 3 months at a time in Canada, prior to his longest absence of 14 months.
[12] Although the Citizenship Judge did not specifically refer to which residency test he applied in making his decision, both parties submit that there is sufficient indicia in the reasons to indicate that he applied either the Thurlow or the Koo test. In granting the respondent's application the Judge stated:
The applicant has established beyond doubt that he made Canada his permanent home and centralised his mode of living in Canada. The absences are of a temporary nature in connection with employment and business.
ANALYSIS
Application of Koo
[13] The applicant submits that the Citizenship Judge has erred in his application of either test. With respect to the Koo test, the applicant submits that the Citizenship Judge is in error because he failed to either examine or examine properly all the required factors of the six-part test, except for the second factor relating to where the respondent's immediate family and dependents reside. This Court finds from reviewing the Certified Tribunal Record that the respondent was in Canada for only nine days before the first of very frequent and extended absences. Thereafter, he spent an average of approximately three weeks in Canada between his frequent trips, from October, 1997 to May, 1999. While the length of time the respondent spent in Canada increased between May, 1999 to June, 2001, he was never present in Canada for more than 3 months at any time, and continued his pattern of extended absences.
ABSENCES
[14] The following is a summary of the respondent's absences from page 17 of the Certified Tribunal Record:
1. Nine days after entering Canada, the respondent left for Hong Kong and China on September 18, 1997 for a period of 31 days, from September 18, 1997 to October 19, 1997;
2. Returned to Canada for 19 days and then left for Hong Kong and China for 17 days, from November 7, 1997 to November 23, 1997;
3. Returned to Canada for 12 days and left for Hong Kong for 3 days from December 4, 1997 to December 6, 1997;
4. Returned to Canada for 51 days and then left for the USA for the USA for 6 days, from January 25, 1998 to January 30, 1998;
5. Returned to Canada for 10 days and left for Hong Kong, China and Cambodia for 46 days; from February 8, 1998 to March 25, 1998;
6. Returned to Canada for 23 days and left for Hong Kong, China and the Philippines for 177 days, from April 16, 1998 to October 10, 1998;
7. Returned to Canada for 21 days and left for Hong Kong, China and Cambodia for 48 days, from October 10, 1998 to December 16, 1998;
8. Returned to Canada for 19 days, and left for Hong Kong and China for 40 days, from January 3, 1999 to February 9, 1999;
9. Returned to Canada for 23 days, and left for Hong Kong and China for 69 days, from March 3, 1999 to May 10, 1999;
10. Returned to Canada for 92 days, and left for Hong Kong and China for 64 days, from August 9, 1999 to October 11, 1999;
11. Returned to Canada for 55 days, and left for Hong Kong and China for 7 days, from December 4, 1999 to December 10, 1999;
12. Returned to Canada for 32 days, and left for Hong Kong, China and Cambodia for 74 days, from January 10, 2000 to March 24, 2000; and,
13. Returned to Canada for 18 days, and left for Hong Kong and China for 420 days, from April 10, 2000 to June 3, 2001.
[15] On this basis, this Court finds that none of the criteria required by the Koo test have been met, except for the fact that the respondent's immediate family and dependents reside in Canada. The Citizenship Judge is therefore in error. While findings of fact by Citizenship Judges must be treated with deference, such findings may be quashed where there is a disregard for important evidence without explanation, see Badjeck at para. 38, and Lam at para. 33.
Application of Papadogiorkakis (Thurlow test)
[16] The respondent submits that even in cases involving prolonged absences, the Thurlow test can still be used to determine residency, and the respondent relies on the following cases: Canada (Minister of Citizenship and Immigration) v. Adler (2002), 23 Imm. L.R. (3d) 241 (F.C.T.D.); Badjeck c. Canada (Ministre de la Citoyennete & de l'Immigration) (2001), Imm. L.r. (3d) 8 (F.C.T.D.). In Adler at para. 12, this Court did find that the Thurlow test could be applied such that "notwithstanding absences that exceed the minimum requirements, the application hinges on whether or not the appellant has centralized their ordinary existence in Canada." However, each case will
depend on the particular facts. And in the case at bar, as in Adler, this Court finds that the respondent had not centralized his existence in Canada prior to his first extended absence of 31 days. As has already been outlined, the respondent's pattern of frequent and extended absences with short periods of stay in Canada do not demonstrate a return to a place where one "regularly, normally and customarily lives." While the respondent has demonstrated that he had the intention of making Canada his place of residence, a mere intention to do so is not equivalent to establishing residency.
[17] The Court also notes that while the respondent relies on Badjeck, that case can be distinguished because the applicant in that case had been living in Canada for over one year before his extended absence, and had acted as a genuine Canadian resident, see Badjeck at para. 40. The respondent in this case was in Canada for only nine days before he began his extended absences, and that time frame is insufficient to establish residency.
[18] The Court is also guided by the reasoning in Jriege v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 1469 (Q.L), which deals with very similar facts to the case at bar. At para. 15 of that case Lemieux states:
The type of case before the Court is a familiar one. A business person, engaged in international commerce, becomes a permanent resident of Canada and lands with his spouse and children; an apartment is rented and shortly thereafter the business person leaves on several overseas trips after obtaining social insurance registration, etc. The spouse and children remain in Canada. The overseas trips are frequent and lengthy. In some circumstances, a Canadian company is incorporated to provide the corporate vehicle for the overseas business activities.
And as Lemieux J. concluded in that case, while the respondent's absences from Canada contributed to the welfare of his family in Canada, this factor cannot override the clear requirements established by Parliament under the Act.
[19] For these reasons, the Minister's appeal is allowed and the decision of the Citizenship Judge is set aside. I note that the respondent apparently has been resident in Canada consistently since June 3, 2001, a period of over two years. Accordingly, he will soon qualify for citizenship under the Thurlow test and the Koo test.
ORDER
THIS COURT ORDERS THAT:
This appeal is allowed and the decision of the Citizenship Judge is set aside.
________"Michael A. Kelen" ___________________________
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-89-03
STYLE OF CAUSE: MCI v. RITCHIE WOO
PLACE OF HEARING: Edmonton, AB
DATE OF HEARING: September 18, 2003
REASONS FOR Order
and Order : THE HONOURABLE MR. JUSTICE KELEN
DATED: October 3, 2003
APPEARANCES:
Laura Dunham FOR APPLICANT
Jeffrey M. Chow FOR RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, ON FOR APPLICANT
Jeffrey M. Chow Professional Corporation
Edmonton, AB FOR RESPONDENT
FEDERAL COURT OF CANADA
Date: 20031003
Docket: T-89-03
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
RITCHIE WOO
Respondent
REASONS FOR ORDER
AND ORDER
Email this Content