Chen v. Canada (Minister of Citizenship and Immigration), 2002 FCT 267

                                                                                                                                             Date: 20020311

                                                                                                                                          Docket: T-257-01

                                                                                                                   Neutral Citation: 2002 FCT 267

BETWEEN:

                                                          MING-CHU HUANG CHEN

                                                                                                                                                        Appellant,

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                    Respondent.

                                                            REASONS FOR ORDER

KELEN J.:

[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 from the decision of the Citizenship Judge William L. Day, dated December 15, 2000 in which the Judge did not approve the application of the appellant for a grant of citizenship, on the basis that the appellant did not meet the residence requirements of paragraph 5(1)(c) of the Act. The issue was whether the appellant had centralized her existence in Canada before her frequent and extended absences during the four year period prior to her citizenship application.

FACTS

[2]         The appellant, born December 10, 1960 is a citizen of Taiwan. She and her family were landed in Canada on November 4, 1995. Five days later, the applicant returned to Taiwan for four months and three weeks. The total absences of the applicant during the four year period prior to her

citizenship application are as follows:

Absences between December 2, 1995 to December 2, 1999

1)                    November 9, 1995 to March 28, 1996;

2)                    April 5, 1996 to August 11, 1996;

3)                    September 12, 1996 to October 8, 1996;

4)                    November 19, 1996 to February 27, 1997;

5)                    May 16, 1997 to September 23, 1997;

6)                    November 17, 1997 to December 21, 1997;

7)                    March 25, 1998 to June 14, 1998;

8)                    September 20, 1998 to October 11, 1998;

9)                    November 17, 1998 to December 25, 1998;

10)              February 16, 1999 to March 13, 1999; and,

11)        July 4, 1999 to August 5, 1999.

On December 2, 1999, the appellant and her family submitted applications for Canadian citizenship. During the four years prior to the application, the applicant was absent 741 days, which is 376 days short of the 1095 days required under the Act.

STANDARD OF REVIEW

[3]         The standard of review for a decision of a Citizenship Judge with regard to the selection and application of a residency test is set out by McKeown J. in Zhang v. M.C.I., [2001] F.C.J. No.778 at paragraph 7:

The standard of review applicable in such matters is correctness. The test is refined further by Justice Lutfy in Lam v. Canada (M.C.I.) (1999), 164 F.T.R. 177 where he stated at paragraph 33:

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 [...]

It was further refined by Justice Pelletier in Canada (M.C.I.) v. Mindich (1999), 170 F.T.R. 148 (T.D.) where he stated at paragraph 9:

Given the divergence in the views of the members of the Federal Court, a Citizenship Judge could choose one approach or the other and not be wrong on that count alone. The function of the judge sitting in appeal is to verify that the Citizenship Judge has properly applied the test of his or her choosing. [emphasis added]

Accordingly, the standard of review is correctness, in that the appeal court must verify that the Citizenship Judge has correctly applied one of the residency tests. The appellate court ought not substitute its different opinion unless the Citizenship Judge has made an error in applying the residency test.

QUALIFICATION FOR CITIZENSHIP

[4]         Pursuant to the calculation prescribed by paragraph 5(1)(c)of the Citizenship Act, in order to be granted citizenship, the appellant must have accumulated at least three years (1095 days) of residence in Canada within the four years immediately preceding the date of her application.

Subsection 5(1) of the Act reads as follows:

Grant of citizenship

5. (1) The Minister shall grant citizenship to any person who

(a) makes application for citizenship;

(b) is eighteen years of age or over;

(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;

(d) has an adequate knowledge of one of the official languages of Canada;

(e)has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship; and

Attribution de la citoyenneté

5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois:

(a) en fait la demande;

(b) est âgée d'au moins dix-huit ans;

(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;

(d) a une connaissance suffisante de              l'une des langues officielles du Canada;

e) a une connaissance suffisante du Canada et des responsabilités et avantages conférés par la        citoyenneté;

(f) is not under a deportation order and is not the subject of a declaration by the Governor in Council made pursuant to section 20.

(f) n'est pas sous le coup d'une mesure d'expulsion et n'est pas visée par une déclaration du gouverneur en conseil faite en application de l'article 20.

TEST FOR RESIDENCY

[5]         Several tests for residency have been developed by the Federal Court of Canada, Trial Division. It has been established in Hsu v. M.C.I., [2001] F.C.J. No. 862 (F.C.T.D.), per Heneghan J., that citizenship judges may properly apply any test, but may not blend different tests together.

[6]         In re Citizenship Act and in re Antonios E. Papadogiorgakis, [1978] 2 F.C. 208 (F.C.T.D.), Thurlow A.C.J. (as he then was) set out the "central existence" 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. [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"

[7]         Dubé J. restated this test in Re: Banerjee (1994), 25 Imm.L.R. (2d) 235 (F.C.T.D.) at 238 as:

"It is the quality of the attachment to Canada that is to be ascertained." [emphasis added]

[8]         The "physical presence" test set out by Muldoon J. in Pourghasemi (Re), [1993] F.C.J. No. 232 (F.C.T.D.) is a stricter interpretation of the test, which calls for the appellant to be physically present in Canada for the required number of days. Paragraphs 3-4 read:

It is clear that the purpose of paragraph 5(1)(c) is to insure that everyone who is granted precious Canadian citizenship has become, or at least has been compulsorily presented with the everyday opportunity to become, "Canadianized". This happens by "rubbing elbows" with Canadians [...] wherever one can meet and converse with Canadians - during the prescribed three years. One can observe Canadian society for all its virtues, decadence, values, dangers and freedoms, just as it is. That is little enough time in which to become Canadianized.

[...]

The statute does not direct the Court to evince sentimentality in order to evade, or to defy the statutory requirement for residence. Perhaps because of misunderstanding of this Court's previous jurisprudence, appellants seem to be advised to keep Canadian bank accounts, magazine subscriptions, medicare cards, lodgings, furniture, other property and good intentions to meet the statutory criterion, in a word, everything except really residing among Canadians in Canada for three out of the previous four years, as Parliament prescribes. One may ask: So what if the would-be citizen be away at school or university? What is the urgency? If the candidate cannot find an adequate school or university in Canada, let him or her study abroad and then come back to Canada in order to comply with the residence requirement.

[9]         Finally, Reed J. in Koo (Re), [1993] 1 F.C. 286, [1992] F.C.J. No. 1107 (F.C.T.D.) sets out a "centralized existence" test based on a list of factors which point to sufficient attachment to Canada so as to allow for the granting of citizenship even where a 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 appellant "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 appellant'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 appellant 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?

[10]       All these tests have been held to be applicable. As Blanchard J. stated in So v. Canada (Minister of Citizenship & Immigration), [2001] F.C.J. No. 1232 (F.C.T.D.), at paragraph 29:

The jurisprudence supports the proposition that a Citizenship Judge may adopt and apply whichever of the above tests he or she chooses as long as it is properly applied.

In Lam v. Canada (Minister of Citizenship & Immigration), [1999] F.C.J. No. 410 (F.C.T.D.) at paragraph 14, Lutfy J. (as he then was) stated:

In my opinion, it is open to the Citizenship Judge to adopt either one of the conflicting schools in this Court and, if the facts of the case were properly applied to the principles of the chosen approach, the decision of the Citizenship Judge would not be wrong.

DECISION OF THE CITIZENSHIP JUDGE

[11]       By letter dated December 15, 2000, the Citizenship Judge refused the application for Citizenship on the grounds that the appellant did not meet the Citizenship Act s.5(1)(c) requirement of having spent 1095 days within Canada out of the four years prior to her application. The Citizenship Judge found that Mrs. Chen was absent from Canada for 741 days and present for 719 days, and that Mrs. Chen divided her life equally between Canada and Taiwan, where her "roots still lie". In the letter, the Citizenship Judge states in part:

During the period under consideration, you have a possible total of 1460 days of residence. You report that your actual days in this country during this time were 719, and you were absent 741 days - a shortfall of 376 days from the 1095 (three years) stipulated in the Citizenship Act.

Your absences are reported by you as being caused by a number of exigencies, including sale of your business, sale of your house, sale of property, assisting your mother who had a broken leg, visiting relatives, and having holidays. [...]

Decision

The primary questions to be dealt with are, the degree to which you have centralized your life in Canada, and the degree to which the time you have spent in Canada will have allowed you to become Canadian by living and working with Canadians, and becoming part of Canadian society.

Your time in Canada demonstrates to me that you have a sincere interest in Canada, and a desire to be a citizen. It does not demonstrate that you have actually spent enough time in this country to fulfil the intent of the Citizenship Act. You have provided a number of different reasons for your absences, but in total, they appear to be a pattern of life rather than a temporary phenomenon. They are not related to a humanitarian emergency, a unique educational program, or assignment by the Canadian government to overseas duties.

If the absences are necessary part of your life, 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, living with your mother and visiting with relatives.

I conclude, therefore, that you have not centralized you [sp] life in Canada, but during the four year period preceding your application, have divided your life equally between Canada, where your husband and children live, and Taiwan, where your mother and extended family live, and your roots still lie.

In the Reasons for Decision Regarding Residence, the Citizenship Judge states, in part:

You have provided various indicia of residence in Canada, such as income tax records, credit cards and retail purchase information, student identity card, automobile and house insurance, land/house tax records, investment certificates, driver's license and health records. This is helpful information, as it has assisted me in understanding your pattern of life. However, these are passive indicators of residence that can be established without actually living in Canada over an extended period of time, as is intended by the Citizenship Act.

ISSUE

[12]       Did the Citizenship Judge err in determining that the appellant failed to comply with paragraph 5(1) of the Act?

ANALYSIS

[13]       The appellant submits that the Citizenship Judge erred in failing to consider and apply the "central existence" test of Papadogiogakis, supra.

[14]       The jurisprudence establishes that a Citizenship Judge may apply any of the residency tests, if the test is correctly applied. It is clear from the decision and reasons that the Citizenship Judge Day applied the test in Koo, supra and decided that the appellant had not centralized her existence in Canada.

[15]       I am of the view that the appellant did not centralize her residence in Canada before returning to Taiwan, as can be seen from the following facts:

(i.)         she arrived in Canada on November 4, 1995, but left Canada five days later for over four months, ie. from November 9, 1995 to March 28, 1996;

(2)                 she returned to Canada for only six days, and then left for four months, ie. from April 5, 1996 to August 11, 1996;

(3)                 she returned to Canada for only one month, and then left from September 12, 1996 to October 8, 1996;

(4)                 she returned to Canada for one month and one week, and then left for three months, ie. from November 19, 1996 to February 27, 1997; and,

(5)                 she returned to Canada for two and one-half months, and then left for four months, ie. from March 16, 1997 to September 23, 1997.

[16]       Without further detailing her absences from Canada, which continued in the same pattern from September 23, 1997, the appellant had not centralized her existence in Canada, which was necessary under the jurisprudence before her absences can be deemed constructive residence. Accordingly, the Citizenship Judge correctly applied the residence test in Koo, supra. by finding that the applicant had not centralized her existence in Canada in order to qualify for Canadian citizenship during the material time frame, being December 2, 1995 to December 2, 1999. In Dias v. Canada (M.C.I.), [2000] F.C.J. No. 1964 Mr. Justice O'Keefe came to a similar conclusion and held at paragraph 18:

In coming to the conclusion that I have reached, I have considered the applicant's activities in Canada, but it is my opinion as noted above, that it is next to impossible to establish a centralized mode of living in Canada in thirty-seven days of residency. I have also considered the fact that the applicant has no other residence except Canada, but in my opinion a centralized mode of living in Canada must be established before departure from Canada in order to have the time spent away from Canada apply to the residency requirement of 1,095 days.

I concur with O'Keefe J. that it is "next to impossible" to establish a centralized mode of living in Canada in thirty-seven days of residency. In the case at bar, Mrs. Chen never spent a significant period of time living in Canada before returning to Taiwan, usually for a longer period than was spent in Canada.

[17]       For these reasons, the Citizenship Judge did not err in applying the residency test set out in Koo, supra. Accordingly, this appeal should be dismissed.

                                                                                                                                  (signed) Michael A. Kelen

                                                                                                                __________________________

                                                                                                                                                           JUDGE

OTTAWA, Ontario

March 11, 2002