Date: 20020705
Docket: T-291-01
Neutral Citation: 2002 FCT 746
Between:
Lujiang Johnny FAN
Applicant
- and -
CITIZENSHIP AND IMMIGRATION CANADA
Respondent
REASONS FOR ORDER
PINARD J.:
This is an appeal filed by the applicant pursuant to subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 (the Act) of a decision of Mr. Paul Gallagher, Citizenship Judge of the Citizenship Commission dated December 20, 2000, finding that the applicant did not meet the requirements of paragraph 5(1)(c) of the Act.
The applicant came to Canada and became a landed immigrant on June 3, 1996.
Since 1996, the applicant has been an "expatriate" (a Canadian employee) working and living in China. He was paid in Canada through the Royal Bank of Canada and has investments via the Royal Bank. He does not own property in Canada, in China, or elsewhere.
The applicant's wife lives in China and he does not have any children.
The applicant applied for Canadian citizenship on May 15, 2000. In dismissing the applicant's application, the Citizenship Judge observed:
[. . .]
You have been out of Canada more than 3/4 of the time since landing - all for legitimate business reasons - as an expatriate employee in China. Your connection to Canada is very limited, but your connection to other countries (China) is also very limited even though you are permanently employed there. I do not have any difficulty with your intent to be a Canadian. You are sincere. However, you have lived in Canada only for a very short period since landing and you still work in China (as a "Canadian" expatriate and not as a local employee).
Accordingly, I have considered and decided against making an affirmative recommendation under subsection 5(3) or 5(4) of the Act, especially since there was no evidence of any health disability, or any special or unusual hardship, or services of an exceptional value to Canada.
Pursuant to subsection 14(3) of the Citizenship Act, you are therefore, advised that, for the above reasons, your application for citizenship is not approved.
The relevant provisions of the Act read as follows:
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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;
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5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois :
[ . . . ]
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.
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(4) In order to alleviate cases of special and unusual hardship or to reward services of an exceptional value to Canada, and notwithstanding any other provision of this Act, the Governor in Council may, in his discretion, direct the Minister to grant citizenship to any person and, where such a direction is made, the Minister shall forthwith grant citizenship to the person named in the direction.
(4) Afin de remédier à une situation particulière et inhabituelle de détresse ou de récompenser des services exceptionnels rendus au Canada, le gouverneur en conseil a le pouvoir discrétionnaire, malgré les autres dispositions de la présente loi, d'ordonner au ministre d'attribuer la citoyenneté à toute personne qu'il désigne; le ministre procède alors sans délai à l'attribution.
15. (1) Where a citizenship judge is unable to approve an application under subsection 14(2), the judge shall, before deciding not to approve it, consider whether or not to recommend an exercise of discretion under subsection 5(3) or (4) or subsection 9(2) as the circumstances may require.
15. (1) Avant de rendre une décision de rejet, le juge de la citoyenneté examine s'il y a lieu de recommander l'exercice du pouvoir discrétionnaire prévu aux paragraphes 5(3) ou (4) ou 9(2), selon le cas.
In Canada (M.C.I.) v. Khzam, [2001] F.C.J. No. 800 (QL), I stated the following:
[5] This Court has held that a correct interpretation of s. 5(1)(c) of the Act does not require an individual to be physically present in Canada throughout the 1,095 [-day] period prescribed when special and exceptional circumstances exist. However, I consider that actual presence in Canada is still the most relevant and important factor in establishing whether a person was "resident" in Canada within the meaning of this provision. As I have said many times, an unduly long absence, though temporary, during this minimum period is contrary to the spirit of the Act, which already allows a person legally admitted to Canada as a permanent resident not to reside in Canada for one of the four years preceding the date on which he or she applies for citizenship.
In the case at bar, the applicant was out of Canada for lengthy periods (he was absent for about 826 of the 1,095 days of residence in Canada required by the Act). I conclude that the determination made by the Citizenship Judge, namely that the applicant did not meet the residence requirements laid down in the Act, is supported by the evidence and meets the applicable test of correctness. Indeed, in The Minister of Citizenship and Immigration and Su-Chen Chiu (June 9, 1999), T-1892-98, I stated, at paragraph 8, the following:
. . . In other words, an appeal under subsection 14(5) of the Citizenship Act is no longer an appeal de novo, but it remains an appeal which, by virtue of the Rules, is dealt with procedurally the same way an application for judicial review is dealt with. Such an appeal, therefore, is not an application for judicial review within the meaning of section 18.1 of the Federal Court Act. Accordingly, this Court is not limited by subsection 18.1(3) (footnote omitted) of that Act and may simply quash a decision of a Citizenship judge if, like in the present case, it does not meet the applicable test of correctness.
The applicant further argues that the Citizenship Judge erred in the exercise of his discretion, in that he failed to consider evidence or misapprehended evidence whereby he should have been granted citizenship to reward services of an exceptional value to Canada.
The onus is on the applicant to satisfy the Citizenship Judge that he should exercise his discretion under subsection 15(1) of the Act. In Maharatnam v. Canada (M.C.I.), [2000] F.C.J. No. 405 (QL), my colleague Justice Gibson states at paragraph 5:
. . . I am satisfied that the onus is on an applicant for Canadian citizenship to satisfy a Citizenship Judge that he or she fulfills the requirements of the Act or warrants an exercise of discretion by the Citizenship Judge, pursuant to subsection 15(1).
In Khat, Re (1991), 49 F.T.R. 252, Justice Strayer, as he then was, stated that a discretionary decision was not subject to appeal unless the Citizenship Judge did not take all the relevant factors into consideration:
Section 14(2) provides, however, that as a precondition to making a decision under the subsection, the citizenship judge must consider whether or not to make a recommendation under s. 15(1). While it is not for this court, sitting on appeal, to review the conclusion of the citizenship judge as to whether a recommendation should be made, in a proper case it may be open to this court to refer the matter back to the citizenship judge if this Court is not satisfied that relevant factors have been taken into account in the exercise of that discretion. . . .
I am satisfied that the Citizenship Judge here did indeed consider applying subsection 5(4) in this case, however, as mentioned in his reasons, he found that there was no evidence of any health disability, or any special or unusual hardship, or services of exceptional value to Canada to warrant making such a recommendation.
Contrary to the situation in M.H., (Re) (1996), 120 F.T.R. 72, it would appear that the services performed by the applicant were provided to a company and not of an exceptional value to Canada as I feel is the true intention of subsection 5(4) of the Act.
For all these reasons, the appeal is dismissed.
JUDGE
OTTAWA, ONTARIO
July 5, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-291-01
STYLE OF CAUSE: Lujiang Johnny Fan v. Citizenship and Immigration Canada
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 12, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: July 5, 2002
APPEARANCES:
Me Jean-François Bertrand FOR THE APPLICANT
Me Daniel Latulippe FOR THE RESPONDENT
SOLICITORS OF RECORD:
Bertrand, Deslauriers FOR THE APPLICANT
Montréal, Quebec
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
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