Date: 20041216
Docket: T-198-04
Citation: 2004 FC 1752
Winnipeg, Manitoba, the 16th day of December 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
DAVID QIUPENG ZENG
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Dr. Zeng's application for Canadian citizenship was denied in a decision dated December 2, 2003. The citizenship judge found that the applicant had met all the requirements of citizenship except that for residence as set out in paragraph 5(1)(c) of the Citizenship Act, R.S.C. 1985, c.C-29 ("the Act"). Dr. Zeng appeals that decision under subsection 14(5) of the Act and section 21 of the Federal Courts Act, R.S.C. 1985, c.F-7 as amended.
[2] From the material in the record before me, it would appear that Dr. Zeng would be an excellent candidate for citizenship. He is well-educated and is described as industrious and innovative in his chosen career marketing Canadian agricultural products and services abroad. Unfortunately, however, that career took him outside the country for much of the four years preceding his application for citizenship.
[3] Dr. Zeng was landed in Canada on June 23, 1997 while still a doctoral candidate at the University of California. He returned to the US within a week of being landed to complete his degree. In September 1999, Dr. Zeng came back to Canada for a job interview with Cargill Limited, a Canadian federal corporation based in Winnipeg, Manitoba. That led initially to contract work for Cargill which took him to China, Thailand, Vietnam and the United States.
[4] In May, 2000 through a service agreement between two wholly owned subsidiaries of Cargill, Dr. Zeng began working as the China Marketing Manager and Asia Regional Agronomist for Cargill Investments (China) Ltd., incorporated under Chinese law. His work for Cargill required that he be absent from Canada for lengthy periods of time. Of the four years preceding his application for citizenship, on February 7, 2003, Dr. Zeng spent 506 days in Canada and 954 days outside of Canada. During this period, however, he also settled his wife and daughter in Burnaby, British Columbia, and acquired many of the indicia of residence including health insurance and a B.C. driver's license.
[5] The citizenship judge concluded that he was 589 days short of the required total of three years "residence" (1095 days) in Canada and therefore not eligible for citizenship. The judge found that his absences were "structural" in nature as a result of the employment he had chosen and that he had not centralized his mode of living in Canada. In part the judge found:
If the absences have been a necessary part of your life as a business person, I must point out that you have chosen to spend more time outside the country than inside, and that the bulk of that time has been spent in the country of your birth.
ISSUES
[6] 1. What is the appropriate standard of review?
2. Did the citizenship judge err in determining that Dr. Zeng did not meet the relevant test for residency?
ARGUMENT & ANALYSIS
1. Standard of review
[7] The applicant had contended in his written submissions that the application should proceed as a trial de novo and that the court could substitute its own determination of the matter. It was conceded at the hearing that this procedure no longer applied given the changes adopted with the Federal Court Rules, 1998. The applicant argued that the standard of review to be applied was that articulated by Justice Lutfy, as he then was, in Lam v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 177. Justice Lutfy had found that the standard was "close to correctness".
[8] The respondent relied upon a more recent line of authority in this court following the decisions of the Supreme Court of Canada in Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 and Dr. Q.v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226. These decisions clarified that there is no graduation or continuum of deference between the three available standards of review in the administrative law context - correctness, reasonableness simpliciter and patent unreasonableness.
[9] Applying a pragmatic and functional analysis to the review of the decisions of citizenship judges respecting the residency requirement of the Act, several judges of this court have recently concluded that a more appropriate standard would be reasonableness simpliciter: Chen v. Canada (Minister of Citizenship and Immigration) 2004 FC 1693, [2004] F.C.J. No. 2069; Rasaei v. Canada (Minister of Citizenship and Immigration) 2004 FC 1688, [2004] F.C.J. No. 2051; Gunnarson v. Canada (Minister of Citizenship and Immigration) 2004 FC 1592, [2004] F.C.J. No. 1913; Canada (Minister of Citizenship and Immigration) v. Chen 2004 FC 848, [2004] F.C.J. No. 1040; Canada (Minister of Citizenship and Immigration) v. Fu 2004 FC 60, [2004] F.C.J. No. 88; Canada (Minister of Citizenship and Immigration) v. Chang 2003 FC 1472, [2003] F.C.J. No. 1871.
[10] I agree that the question of whether a person has met the residency requirement under the Act is a question of mixed law and fact and that Citizenship Judges are owed some deference by virtue of their special degree of knowledge and experience. Accordingly, I accept that the appropriate standard of review is reasonableness simpliciter and that, as stated by Snider J.in Chen, supra at paragraph 5, "as long as there is a demonstrated understanding of the case law and appreciation of the facts and their application to the statutory test, deference should be shown."
2. Application of the Residency Test
[11] It is common ground between the parties that the appropriate test in Dr. Zeng's case, where a strict counting of the days of physical presence will not meet the three year residency requirement, is the central existence test articulated by Thurlow A.C.J. in In re Citizenship Act and in re Antonios E. Papadogiorgakis, [1978] 2 F.C. 208. This test addresses the quality of the attachment to Canada measured by the degree to which a person in mind and fact settles into or maintains or centralizes his ordinary mode of living in this country.
[12] Justice Reed set out six factors in Re Koo, [1993] 1 F.C. 286 that point to sufficient attachment to Canada:
(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?
[13] Dr. Zeng submits that he has established residence in Canada. He is employed by a Canadian company, and provides a beneficial service to both Canada and Southeast Asia because of his expertise. His employment requires him to travel frequently, but he has a residence only in Canada. He works and socializes regularly with Canadians, owns a house where his wife and daughter have lived continuously, maintains bank accounts, credit cards, and files taxes in Canada, and has a B.C. driver's licence.
[14] Dr. Zeng submits that the citizenship judge erred in applying the central existence test and the Re Koo factors. The judge, he argues, focussed on Dr. Zeng's days of physical absence in Canada to the exclusion of the other considerations outlined by Justice Reed in Re Koo. To illustrate, he cites the Judge's use of a quote from Re Koo in which Justice Reed commented, at paragraph 7, upon Parliament's intention in setting the mandatory residence period:
The requirement of three years 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 1095 days was contemplated as a minimum.
[15] Dr. Zeng contends that it is significant that the Citizenship Judge did not include the final words of the paragraph in which Justice Reed concluded by noting that "...the jurisprudence which is now firmly entrenched does not require physical presence for the whole 1095 days."
[16] Dr. Zeng contends that the citizenship judge also erred in finding that the absences were not a necessary part of his life as a business-person; that he chose to spend more time outside Canada than in it. This was not a choice made by him but a necessary requirement of his employment with a Canadian company. Further, the citizenship judge did not define the "Canadian way of life" that he hoped Dr. Zeng would now have time to learn about, and did not explain why Dr. Zeng did not know enough about that way of life.
[17] The respondent submits that the citizenship judge applied the central connection test from Re Koo properly. There is no error in referring to dicta in Re Koo commenting upon the Parliamentary intent; in fact, the extent of physical absences is a component in the central connection test as outlined in Re Koo. Dr. Zeng's physical absences were great, so it bore mentioning. It was not the sole criterion relied upon. This does not suggest that the judge misapplied the law.
[18] The Canadian-based company that employed Dr. Zeng is incorporated in China and his employment was based in China. Thus, the respondent argues, the judge did not err in finding that Dr. Zeng had not centralized his mode of living in Canada, even where there are passive indicia of residence and his family lives in Canada: Alibhal v. Canada (Minister of Citizenship and Immigration) 2003 FCT 169, [2003] F.C.J. No. 248; Chu v. Canada (Minister of Citizenship and Immigration) 2003 FCT 174, [2003] F.C.J. No. 242; Pau v. Canada (Minister of Citizenship and Immigration)(2003), 33 Imm. L.R. (3d) 313; Wan v. Canada (Minister of Citizenship and Immigration) 2004 FC 65, [2004] F.C.J. No. 81.
[19] Noting that Dr. Zeng had spent the bulk of his time in China, the respondent submits, was not implying that this was the only factor showing a lack of substantial connection to Canada. However, it was relevant because it suggested that his connection with Canada was no more than with any other country. The judge explained why Dr. Zeng could not be familiar with the Canadian way of life because he found that "You have not sufficiently centralized your life in Canada, living among Canadians, and becoming part of Canadian society." He could not have established strong connections to Canada because he had spent so little time in Canada. There was in fact no establishment in Canada prior to the structural absences.
[20] In my view, the citizenship judge in this case demonstrated a sufficient understanding of the case law and appreciation of the facts and their application to the statutory test. Accordingly, I believe considerable deference should be given to his decision.
[21] It is not surprising, given the amount of time Dr. Zeng spent outside of Canada during the four years prior to his application, that the citizenship judge would focus on those absences and the reasons for them in arriving at his findings. Considering the Re Koo factors, there was no physical presence in Canada for a long period prior to recent absences. Indeed the pattern was of long absences interspersed with periods in Canada. Dr. Zeng was not "a few days short" of the requisite number. He had not established himself here for any length of time before he took employment with Cargill and began to travel abroad for prolonged periods. While there was evidence before the citizenship judge that Dr. Zeng was to be relocated back to Cargill headquarters in Winnipeg at the end of four years, in my view his employment abroad was not the type of temporary arrangement contemplated by Justice Reed in Re Koo.
[22] The applicant argues that there was no evidence before the citizenship judge to indicate that Dr. Zeng had maintained a home in China while working there for Cargill. However, the May 2000 service agreement with Cargill Investments (China) Ltd., required that firm to reimburse Dr. Zeng directly the equivalent amount of USD $1,800.00 in Chinese currency per month for housing expenses in addition to his travel, accommodation and entertainment expenses and salary. It appears clear from this clause that he was expected to maintain housing for himself in China for the duration of that agreement.
[23] Contrary to the applicant's submissions, I can find no indication in the citizenship judge's reasons that he ignored the other facts in Dr. Zeng's favour. Indeed he acknowledged that there were strong points including the establishment of a home for the wife and daughter in Burnaby, B.C. In my view, however, the judge was entitled to weigh that factor against the others and to conclude that it did not demonstrate the necessary degree of connection to Canada.
[24] Accordingly, I can find no basis to conclude that the decision of the citizenship judge was unreasonable and will dismiss this application. I wish to take this opportunity, however, to join the citizenship judge in his concluding remarks that he was looking forward to the day when Dr. Zeng is able to meet the residency requirements of the Citizenship Act and can fully take part in Canadian society.
ORDER
THIS COURT ORDERS that this application is dismissed.
"Richard G. Mosley"
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-198-04
STYLE OF CAUSE: David Qiupeng Zeng v. Minister of Citizenship and Immigration
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: December 14, 2004
REASONS FOR ORDER
AND ORDER: The Honourable Mr. Justice Mosley
DATED: December 16, 2004
APPEARANCES:
David Davis
Winnipeg, Manitoba FOR APPLICANT(S)
Nalini Reddy FOR RESPONDENT(S)
Department of Justice
Winnipeg, Manitoba
SOLICITORS OF RECORD:
Davis & Associates FOR APPLICANT(S)
Winnipeg, Manitoba
Morris Rosenberg FOR RESPONDENT(S)
Deputy Attorney General of Canada
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