Date: 20040813
Docket: T-949-03
Neutral citation: 2004 FC 1129
BETWEEN:
MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
YIN XIONG
Respondent
REASONS FOR ORDER
PHELAN J.
Introduction
[1] Can a person who has moved to Canada for nine days, returned to her previous residence, and who has been physically present in Canada for 329 days out of the three years (1095 days) required, be said to have established residence for Citizenship Act purposes?
[2] Ms. Xiong, a citizen of China, had been studying in the United States from 1996 to 1999 before she came to Canada. She spent 9 days in Toronto in her sister's apartment. On the 8th day, her husband and daughter joined her; she then returned to the United States to continue her studies.
[3] Over the course of the next three years, Ms. Xiong returned to Canada to see her family whenever there was a break in her studies. She has extended family in Canada and it is evident that she plans to make Canada her home.
[4] She is studying in the United States because she was unable to gain admission into the only PhD program in this country in her chosen area, comparative literature. She is pursuing both her PhD in Georgia and a Master's degree in computer science. She has been employed as a teaching assistant while at that university.
[5] The Citizenship Judge summarized her reasons for granting citizenship as follows:
Although residence days of physical presence are short, her principal residence is in Canada. Her extended family - mother, sister, brother and families are all Canadian citizens. Her husband lives here. She returns here for holiday periods and is applying for university and college teaching positions here - form attached.
[6] The attached form referred to by the Citizenship Judge asks the questions raised in Re Koo (1992) Imm. L.R. (2d) 1, 59 FTR 27 [1993] 1 FC 286 (TD). The Judge's responses reiterate the summary of facts with particular attention paid to the family members' presence in Canada.
Analysis
[7] The Citizenship Judge's comment that the "days of physical presence are short" is an understatement. Attached, as a schedule to these Reasons, is a list of the days of Ms. Xiong's presence in Canada. She was in the United States 878 days and in Canada 329 days in the three year period.
[8] The applicable provision of the Act, subparagraph 5(1)(c)(ii) provides:
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5.(1) The Minister shall grant citizenship to any person who
(c) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, and has, within the four years immediately preceding the date of his or her application, accumulated at least three years of residence in Canada calculated in the following manner:
(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) 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 :
(ii) un jour pour chaque jour de résidence au Canada après son admission à titre de résident permanent; . . . .
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[9] Ms. Xiong relied substantially on this Court's decision in Canada (Secretary of State) v. Man [1986] FCJ No. 499. The case is said to be particularly relevant because Mr. Man had come to Canada for nine days and then went off to school, returning on holidays to see his parents.
[10] With respect, the law has developed since that decision. Indeed the decision is based primarily on the deference owed to a citizenship judge's decision.
[11] It is evident that the learned judge, in the Man case, was not comfortable with the decision, as indicated by the following passages:
I might have certain misgivings as to the extended meaning of "residence". I might ponder on the consequential withering away of the three-out-of-four-year residency requirements of section 5. I might reflect on the singular ease with which as precious a status as Canadian citizenship can be obtained when all which might be required of a landed immigrant is a place in Canada where he can hang his hat while he goes about conducting his various businesses as before, only to return when his four years are up to claim his citizenship papers.
The case is a border-line one and I should guess that it would be open to anyone to reach a different conclusion on the same set of facts. . . . .
[12] The standard of review on a matter of this nature is correctness, as it relates to whether or not an applicant for citizenship has been deemed to be physically present for the requisite time period (Zhang v. Canada (Minister of Citizenship and Immigration) 2001 FCT 501). Some deference is owed where there is a demonstrated understanding of the case law and there is a proper finding that the facts satisfy the statutory test.
[13] The jurisprudence of this Court is to the effect that citizenship applicants must demonstrate, firstly, that they have established a residence of their own in Canada at least three years prior to the application, and then, that they have maintained their established residence throughout that time. Re Kong [1999] FCJ No. 665; Minister of Citizenship and Immigration v. Yun Ho Chang [2003] FC 1472.
[14] With all due respect to the Citizenship Judge, I conclude that the decision is in error. The Judge did not address the first issue - the establishment by Ms. Xiong of her residence. The Judge did not address whether she had centralized her mode of living in Canada three years prior to the citizenship application.
[15] The Citizenship Judge placed undue weight on the presence of her family in Canada. In Chan v. Canada (Minister of Citizenship and Immigration) [1998] FCJ No. 1796, this Court, in stressing the importance of a citizenship applicant's attachment to Canada, said that attachment has to go beyond connections to family located in Canada or the possession of Canadian documents.
[16] In a more recent judgment, this Court, in Canada (Minister of Citizenship and Immigration) v. Chang [2003] FCJ No. 1871; 2003 FC 1472, addressed the same issue as in the present case - the failure to address the citizenship applicant's connection with Canada, as distinct from that of her family's. Just because her husband and child are resident in Canada does not make Ms. Xiong resident in Canada.
[17] Aside from investing in Canada through RRSP's, real estate and RESP's, there is no evidence that Ms. Xiong, when she was in Canada, either the first nine days or on her holiday time, engaged in any activity which could constitute integration or participation in Canadian society. Indeed, it would have been difficult to do so given the limited time periods she was in this country.
[18] While this decision will be a disappointment, Ms. Xiong can reapply at an appropriate time. Her husband's and daughter's applications for citizenship are proceeding on their own merits and schedule. Nothing in this decision should adversely affect those applications. I have taken note of the Minister's counsel's assurance that this case should not delay consideration of the husband and the daughter's citizenship applications.
[19] For these reasons, this judicial review will be granted and the decision of the Citizenship Judge dated April 16, 2003 will be quashed. No order for costs was requested and none will be given.
(s) "Michael L. Phelan"
Judge
SCHEDULE 1
January 30, 1999 Landed in Canada
January 30, 1999 to February 9, 1999 Canada (9 days)
February 9, 1999 to March 18, 1999 USA
March 18, 1999 to March 28, 1999 Canada (10 days)
March 28, 1999 to May 10, 1999 USA
May 10, 1999 to August 21, 1999 Canada (3.5 months)
August 21, 1999 to December 18, 1999 USA
December 18, 1999 to January 3, 2000 Canada (2 weeks)
January 3, 2000 to March 17, 2000 USA
March 17, 2000 to March 28, 2000 Canada (11 days)
March 28, 2000 to May 15, 2000 USA
May 15, 2000 to August 8, 2000 Canada (3 months)
August 8, 2000 to October 25, 2000 USA
October 25, 2000 to November 3, 2000 Canada (9 days)
November 3, 2000 to March 16, 2001 USA
March 16, 2001 to March 28, 2001 Canada (12 days)
March 28, 2001 to May 27, 2001 USA
May 27, 2001 to June 22, 2001 Canada (1 month)
June 22, 2001 to December 23, 2001 USA
December 23, 2001 to January 3, 2002 Canada (10 days)
January 3, 2002 to April 14, 2002 USA
April. 14, 2002 to April 30, 2002 Canada (16 days)
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-949-03
STYLE OF CAUSE: MINISTER OF CITIZENSHIP AND IMMIGRATION v. YIN XIONG
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 16, 2004
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MR. JUSTICE PHELAN
DATED: FRIDAY, AUGUST 13, 2004
APPEARANCES:
Ms. Sally Thomas FOR THE APPLICANT
Ms. Wennie Lee FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE APPLICANT
Ms. Wennie Lee
Toronto, Ontario FOR THE RESPONDENT
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