Canada (Minister of Citizenship and Immigration) v. Xia, 2002 FCT 453

Date: 20020426

Docket: T-1397-01

Neutral citation: 2002 FCT 453    

BETWEEN:

                                  MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                       Applicant

                                                                                 and

                                                                    BONNIE BO XIA

                                                                                                                                                   Respondent

                                                        REASONS FOR JUDGMENT

GIBSON, J.:

[1]                 The Minister of Citizenship and Immigration (the "Minister") appeals from a decision of a Citizenship Judge recommending that Bonnie Bo Xia be granted Canadian citizenship. The decision under appeal is dated the 16^th of May, 2001. It is in the following terms:

Client has a lot of close friends in Calgary but no one else in her family is a Canadian. She works for a Canadian Company here in Calgary and then was sent out of the country to China (2 year contract entered till a suitable replacement can be found and then will return to Canada and work with Canadian Company (Husky Oil, Calgary). She owns home here, is paid in Canadian funds by a Canadian Company - pays Canadian property tax and Canadian income tax, contribute to Canadian pension plan. The Company she works for (Husky) has assigned client to a Canadian partnership with China programs but as soon as replacement is found, family will return to Canada - I recommend her for citizenship. I believe in the time she is here she is Canadianized.

[2]                 The only issue on this appeal is whether Ms. Xia (the "Respondent") meets the residence requirement of paragraph 5(1)(c) of the Citizenship Act^[1] (the "Act"). The relevant portions of subsection 5(1) of the Act read as follows:

[3]                 The applicant is a citizen of the People's Republic of China. She is an engineer. She spent some time studying in Europe. Following completion of her studies, she spent three years working in California. Together with her family, she arrived in Canada, as a permanent resident, in July of 1997. She and her family resided briefly in North York, Ontario. They then relocated to Calgary where better employment opportunities existed for the applicant.

[4]                 In August of 1997, the Respondent accepted employment in a position with Husky Oil Operations Limited, now Husky Energy Inc. ("Husky"). Between the time she accepted employment with Husky and the commencement of that employment, she travelled to the United States and to China in order to arrange for the removal of household and personal effects to Calgary.

[5]                 On the 3^rd of November, 1997, the respondent commenced her employment with Husky. Apart from two brief holidays, one in the United States and the Bahamas and the other in the United States, she remained in Calgary until the 17^th of July, 1998 when she undertook work in China for Husky. To the time of the decision under review, she continued to be employed in China by Husky.

[6]                 The respondent and her family, upon their arrival in Calgary, lived in rental accommodations. Subsequently, they acquired a condominium property which they first occupied and then later leased, retaining one bedroom where they stored their household and personal effects while the respondent continues to be employed in China.

[7]                 Since assuming her employment responsibilities in China, the respondent has returned to Calgary for consultations twice per year. The respondent's husband and son are with her in China. Apparently, they have, from time to time, returned with her to Calgary, when feasible. The number of occasions on which the respondent's husband and son have returned with her is not clear from the tribunal record.

[8]                 The respondent submitted her application for Canadian citizenship on the 20^th of December, 2000. Within the four years preceding the date of her application, the respondent was absent 919 days and present in Canada for 337 days. It was not in dispute before me that the time she spent in Canada in the relevant period was 758 days short of the 1,095 days of residence required by paragraph 5(1)(c) of the Act.

[9]                 The form utilized by the Citizenship Judge in arriving at her decision, as it appears in the tribunal record, reads in part as follows:

In determining whether the applicant has demonstrated that Canada is the country in which he has centralized his mode of existence, I have considered those questions posed by Justice Reed in rendering the decision Re Koo (1992), 19 Imm. L.R. (2d) 1, .... [1993] 1 F.C. 286 (T.D.)

I have addressed each of these questions as follows:

                                                                                                                     [one citation omitted]

[10]            There follows in the form each of the six questions posed by Madame Justice Reed with space following each question in which the Citizenship Judge recorded her responses. The questions and the recorded responses are repeated here verbatim:

Was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship?

In Canada 45 days before 1^st absence. Absence from Canada Aug 97 - Oct 97 - 65 days relocation China and U.S.A. - other absences 5 - 4 days holiday in Bahamas & U.S.A. - otherwise absences are all work assignments in China - 2 yr contract which can be renewed - just signed another 2 year contract but hopes she will then be able to return to Canada.

Where are the applicant's immediate family and dependants (and extended family) resident?

Husband & son with her in China. No one in her family is a Canadian citizen. Son will enter international school this year. Has many friends but no relatives in Canada.

Does the pattern of physical presence in Canada indicate a returning home or merely visiting the country?

She works for a Canadian company & is paid in Canadian funds. She returns to report to her company in Calgary 2 x per year.

What is the extent of the physical absence? (number of days away from Canada VS number of days present in Canada)

Number of days present 337 days.

     "       "    "     absent 919 days.

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 temporary employment abroad?

She hopes to return to Canada once this contract is complete. This company prefers to hire Canadians & is training people now for replacements in China.

What is the quality of the connection with Canada? Is it more substantial than that which exists with any other country?

Yes. She owns home here (rent [sic] it while she is on assignment. Husband & son accompanied her to China & return with her when they can (when she returns to Canada).^[2]

[11]            In Lam v. Canada (Minister of Citizenship and Immigration)^[3], Mr. Justice Lutfy, as he then was, after noting the diversity of opinion among Judges of this Court as to the proper interpretation of paragraph 5(1)(c) of the Act, wrote at paragraph [14] of his reasons:

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.

                                                                                                                             [emphasis added]

[12]            While Justice Lutfy spoke of "either one" of the conflicting schools in this Court, others have identified three, and in one case five, "conflicting schools".

[13]            Justice Lutfy continued at paragraph 33 of his reasons in Lam:

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.^[4]

                                                                                                                             [emphasis added]

[14]            While Mr. Justice Nadon in Chen v. Canada (Minister of Citizenship and Immigration)^[5] disagreed with the view adopted by Justice Lutfy in Lam, others of my colleagues have chosen to follow it. I too choose to follow it.

[15]            The question then becomes, simply, did the learned Citizenship Court Judge, clearly having determined to adopt the six questions posed by Madam Justice Reed in Re. Koo, "...in clear reasons which demonstrate an understanding of the case law, properly decide that the facts satisfy [her] view of the statutory test in paragraph 5(1)(c)...".

[16]            On the material before me on this appeal, with great respect, I conclude that the answer to that question must be "no".

[17]            At two points in her responses to the questions posed in Re. Koo, the Citizenship Judge reflects the fact the the respondent "hopes" that she will be able to return to Canada once her contract with Husky in China is completed. In a letter dated the 9^th of May, 2001 from the Senior Vice-President and Chief Operating Officer of Husky Oil Operations Limited that was addressed to the Citizenship Court, the following appears:

Husky has joint venture projects in the People's Republic of China, and Ms. Xia was given an overseas assignment in our Beijing office. Ms. Xia will continue to work on Husky's Wenchang project and other new projects in the People's Republic of China.^[6]

[18]            While the learned Citizenship Judge acknowledges the respondent's "hope" as indicated, she appears to have ignored, or at least given no weight, to the view of the respondent's employer that she will continue to work in China.

[19]            Also in the answer to the first question, the Citizenship Judge notes that the respondent was in Canada 45 days before her first absence and left for the purpose of relocating family property to Canada. I conclude that the 45 days spent in Canada simply cannot be considered as a "long period" of physical presence in Canada before first leaving, in the words of the issue question. While it is true that the respondent subsequently spent some eight months in Canada in orientation and training for her assignment in China, that period of presence was not before the respondent's first leaving and is simply not commented upon by the Citizenship Judge.

[20]            In response to the second question, the Citizenship Judge quite properly notes that the respondent's husband and son are with her in China and that she has no family member who is a Canadian citizen, apparently, or indeed who is present in Canada.

[21]            With great respect, I find the Citizenship Judge's response to the third question, regarding returning home or merely visiting Canada, to be entirely unresponsive unless one reads the element of the response to the effect that the respondent returns to report to her company in Calgary twice per year as indicating that her returns to Canada are more in the nature of visits than in the nature of returning home. Such an interpretation would be entirely consistent with the reality that the respondent and her family have rented out their home in Calgary and therefore, apparently throughout at least a portion of the relevant time, had no home in Calgary to which they would return.

[22]            The Citizenship Judge's response to the fourth question accurately reflects that the respondent has been absent from Canada, in the relevant period, much more than she has been present in Canada and certainly her presence has been many fewer days than are required by paragraph 5(1)(c) of the Act, if one interprets residence in Canada as physical presence, as some of my colleagues urge.

[23]            In response to the fifth question regarding whether or not the respondent's physical absences are caused by a clearly temporary situation, the response is, I am once again satisfied, quite unresponsive. The respondent's "hopes" are hardly relevant, particularly in light of the letter from the respondent's employer to which I have earlier referred. The statement that Husky "prefers to hire Canadians and is training people now for replacements in China" appears to ignore the fact that Husky has, for some time now, relied on the respondent who is not a Canadian citizen.

[24]            Finally, on the last question relating to the respondent's quality of connection with Canada, the learned Citizenship Judge notes that the respondent owns a home here and that it is rented or leased while she is on assignment. The learned Citizenship Judge further notes that the respondent's husband and son accompanied her to China and return with her "when they can". Counsel for the respondent was unable to direct me to any material on the record before the Citizenship Judge which would identify how often such returns might have been and how they might have been used to enhance the quality of the respondent's and her family members' quality of connection to Canada.

[25]               Counsel directed my attention to substantial indicia of connection to Canada that appear on the record that was before the Citizenship Judge. I note that all such indicia, such as credit cards, an automobile in Canada, a driver's licence, bank accounts aggregating to a significant amount, health insurance, income tax returns, payments into a retirement plan in Canada, membership in associations and library cards are, with great respect, merely "passive" indicia of connection to Canada. None of them, singly or in combination, represent an undertaking by the respondent, or any member of her family, to significantly "Canadianize" themselves.

[26]            Counsel for the respondent drew my attention to the following passage in Canada (Minister of Citizenship and Immigration) v. Patel^[7] where Mr. Justice Pelletier, citing his own decision in Leung v. Canada^[8] wrote at paragraph 10:

This case appears to fall within the same class as Leung, ... . Like Leung, there is not much, if any, evidence of the applicant's involvement in the social life of Canada but as I said then:

The presence of such activity negates an inference that Canada is not the centre of one's usual existence. The absence of it does not prove the contrary, since everyone has a different capacity and tolerance for social activity. Those with a lower tolerance do not necessarily have less attachment to the country.

                                                                         [citation omitted]

There was no evidence that I have been able to ascertain that was before the Citizenship Judge as to the respondent's involvement in the social life of Canada. Equally, there was no evidence that I have been able to ascertain that the respondent has a low capacity and tolerance for social activity. With great respect, I adopt a somewhat different view from my colleague, now on the Appeal Division of this Court, regarding evidence of involvement in social life in Canada. I am satisfied that, whatever the capacity and tolerance for social activity of an individual who wishes to become a Canadian citizen, there should be before a Citizenship Judge some evidence that would demonstrate a reaching out to the Canadian community, not merely passive indicia, as there is here. In the absence of such a reaching out, or a rational explanation for the lack of such evidence, that absence is a factor for consideration in assessing the quality of the connection with Canada of an applicant for Canadian citizenship.

[27]            I return then to the question before me: "has the learned Citizenship Judge who made the decision that is here under appeal, in clear reasons which demonstrate an understanding of the case law, properly decided that the facts satisfy the statutory test in paragraph 5(1)(c) of the Act that has been adopted by her?"

[28]            As earlier indicated, with great respect, I conclude that on all of the facts of this matter the answer to that question must be "no". In the result, this appeal will be allowed and the decision under appeal will be set aside. Counsel for the appellant urged that I go further and "refuse the respondent's citizenship application". I decline counsel's invitation to take this further step. I regard it as, perhaps, beyond my mandate and, in any event, unnecessary. I am satisfied that a judgment allowing the appeal and setting aside the learned Citizenship Judge's decision, which is only in the nature of a recommendation, accomplishes the same effect. Of course, it remains open to the respondent to file a further application for Canadian citizenship taking into account any changes of circumstances that might have occurred since her last application was filed.

__________________________

      J. F.C.C.

Ottawa, Ontario

April 26, 2002