Yang v. Canada (Minister of Citizenship and Immigration), 2002 FCT 93

Date: 20020128

Docket: T-783-01

Neutral citation: 2002 FCT 93

BETWEEN:

                                                                WEN-CHUAN YANG

                                                                                                                                                    Applicant

AND:

                                   THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                               Respondent

                                                              REASONS FOR ORDER

ROULEAU, J.

[1]                 This is an appeal of the decision of Citizenship Judge William Day ("the Citizenship Judge"), dated March 26, 2001, refusing the applicant's application for Canadian citizenship on the ground that he had not centralized his life to the extent required by paragraph 5(1)(c) of the Citizenship Act, R.C.S. 1985, c. C-29 as amended ("the Act"). The applicant seeks a writ of certiorari quashing the Citizenship Judge's decision to refuse his request for citizenship as well as a writ of mandamus directing the Citizenship Judge to grant him citizenship.

[2]                 The applicant first came to Canada on a student visa on September 7, 1993, and then arrived in Canada as a landed immigrant on January 13, 1995. He applied for Canadian citizenship on September 15, 1999. His parents are landed immigrants and reside in Canada. since 1989. He was prevented from immigrating to Canada in 1989 along with his parents because of military service obligations. He was later exempted from these obligations and immediately immigrated to Canada. His elder sister is a Canadian citizen living in Taiwan and his younger brother is a Canadian citizen living in Shanghai and studying Chinese medicine. His maternal and parental extended families are resident in Taiwan.

[3]                 The applicant attended classes in Canada at Dorset College, UBC English Language Institute, Vancouver Premier College for the two-year period preceding the period for the assessment of his residency for citizenship purposes. As a student at home in Canada, the applicant lived with his family in Vancouver, British Columbia, in a house of which he is a co-owner. At the time, most of his absences from Canada were for short term family matters such as attending his grandmother's funeral, attending his sister's wedding, and short vacations.

[4]                 During the period extending from September 15, 1995 to September 15, 1999, period under consideration to assess whether the applicant met the residence requirement for citizenship purposes, the absences of the applicant were the result of his decision to attend college in San Mateo, California. He spent nine semesters at San Mateo Community College where he took a Computer Science Program from Spring Semester 1995 to Fall Semester 1997. He did not complete the Program; he returned to Canada in October 1997 where he resided with his parents. The reason why the applicant attended school in San Mateo rather than Canada was because he followed his girl friend, an American residing in San Mateo, to California. Since October 1997, their relationship has ended. At no time during his stay in San Mateo did the applicant make an application for citizenship or more permanent status in the United States.

[5]                 On March 21, 2001, the applicant appeared before the Citizenship Judge for an interview. The Citizenship Judge found the applicant met all requirements for citizenship, except the requirement of residence. He found that the applicant's absence during the relevant period had been structural and a pattern of life rather than just temporary absences, and that he had not spent enough time in Canada to fulfill the intent of the Act. He therefore concluded that the applicant had not yet sufficiently centralized his life in Canada living among Canadians, and becoming an integrated part of Canadian society. The applicant filed its Notice of Application to appeal the Citizenship Judge's decision on May 9, 2001.

[6]                 In a detailed letter of decision dated March 26, 2001, refusing the applicant's application for Canadian citizenship, the Citizenship Judge wrote lengthy reasons and I highlight the important passages:

IN DETERMINING WHETHER YOU HAVE DEMONSTRATED THAT CANADA IS THE COUNTRY IN WHICH YOU HAVE CENTRALIZED YOUR 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, 59 F.T.R. 27, (1993) 1 F.C. 286 (T.D.).

ACCORDING TO OUR RECORDS, AND INFORMATION SUPPLIED BY YOU IN YOUR APPLICATION AND AT YOUR HEARING, YOU FIRST CAME TO CANADA ON SEPTEMBER 07, 1993 ON A STUDENT VISA AND THEN ARRIVED ON JANUARY 13, 1995 AS A LANDED IMMIGRANT. YOU APPLIED FOR CANADIAN CITIZENSHIP ON SEPTEMBER 15, 1999. THEREFORE, THE PERIOD OF TIME THAT CAN BE COUNTED TOWARD YOUR DAYS OF RESIDENCE IS FROM SEPTEMBER 15, 1995 TO SEPTEMBER 15, 1999, A PERIOD OF 1460 DAYS.

YOU HAVE PROVIDED VARIOUS INDICIA OF RESIDENCE IN CANADA SUCH AS SCHOOL AND EMPLOYMENT RECORDS, INCOME TAX RECORDS, SOCIAL INSURANCE CARD, BUSINESS INCORPORATION RECORDS, UTILITIES RECORDS FOR YOUR HOUSEHOLD, RESIDENCE PURCHASE AND TAX RECORDS, BC CARE CARD, AUTOMOBILE RECORDS, CREDIT CARD AND BANK 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.

DURING THE PERIOD UNDER CONSIDERATION YOU HAVE A POSSIBLE TOTAL OF 1460 DAYS OF RESIDENCE. IT APPEARS THAT YOUR ACTUAL RESIDENCE TOTALS 737 DAYS AND 723 DAYS ABSENT - A SHORTFALL OF 358 DAYS OR APPROXIMATELY ONE YEAR FROM THE NUMBER SPECIFIED IN THE CITIZENSHIP ACT.

THESE ABSENCES WERE THE RESULT OF YOUR DECISION TO ATTEND COLLEGE IN SAN MATEO, CALIFORNIA. YOU SPENT NINE SEMESTERS - CONTINUOUS ATTENDANCE - AT SAN MATEO COMMUNITY COLLEGE, WHERE YOU TOOK A COMPUTER SCIENCE PROGRAM FROM SPRING SEMESTER 1993 TO FALL SEMESTER 1997. YOU DID NOT COMPLETE THE PROGRAM, AND RETURNED TO CANADA IN OCTOBER 1997. YOU STATE THAT THE REASON FOR YOUR SCHOOL ATTENDANCE IN SAN MATEO RATHER THAN IN CANADA WAS BECAUSE YOU FOLLOWED YOUR GIRL FRIEND - AN AMERICAN, RESIDENT IN SAN MATEO - TO CALIFORNIA. SINCE OCTOBER 1997, THE RELATIONSHIP HAS ENDED.

YOUR PATTERN OF LIFE FROM 1993 - LONG BEFORE YOUR ACCEPTANCE AS A PERMANENT RESIDENT OF CANADA - TO 1997 WAS ONE THAT WAS SPLIT BETWEEN THE USA AND CANADA, WITH THE MAJORITY OF YOUR TIME DURING THAT PERIOD BEING SPENT IN THE USA. FOLLOWING YOUR RETURN TO CANADA IN OCTOBER 1997, YOU HAVE RESIDED PRIMARILY IN CANADA. IN TOTAL, YOUR TIME DURING THE FOUR YEARS PRIOR TO YOUR APPLICATION FOR CITIZENSHIP WAS SPLIT EQUALLY BETWEEN THE TWO COUNTRIES.

IT APPEARS THAT DURING YOUR TIME IN THE USA, YOUR EMOTIONAL, SOCIAL AND BUSINESS (IE, STUDENT) LIFE WAS CENTRED IN THAT COUNTRY. SINCE RETURNING TO CANADA, IT APPEARS EQUALLY TRUE THAT YOUR EMOTIONAL, SOCIAL AND BUSINESS LIFE BECAME CENTRED HERE.

THE PRIMARY QUESTION 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.

BEFORE DECIDING UPON YOUR APPLICATION I HAVE, IN ACCORDANCE WITH SUBSECTION 15(1) OF THE ACT, CONSIDERED WHETHER TO MAKE A RECOMMENDATION UNDER SUBSECTIONS 5(3) AND (4) OF THE ACT. YOU DID NOT FILE ANY MATERIAL IN SUPPORT OF MY MAKING A RECOMMENDATION FOR THE USE OF DISCRETION. AFTER HAVING CAREFULLY CONSIDERED ALL THE CIRCUMSTANCES OF YOUR CASE, I HAVE DECIDED THAT YOUR CASE DOES NOT WARRANT MAKING A FAVOURABLE RECOMMENDATION, SINCE THERE WAS NO EVIDENCE OF ANY HEALTH DISABILITY, ANY SPECIAL OR UNUSUAL HARDSHIP OR SERVICES OF AN EXCEPTIONAL VALUE TO CANADA.

THE INTENT OF THE CITIZENSHIP ACT IS CLEAR. YOU HAVE NOT YET SUFFICIENTLY CENTRALIZED YOUR LIFE IN CANADA, LIVING AMONG CANADIANS, AND BECOMING PART OF CANADIAN SOCIETY.

[7]                 The Applicant raised two issues with respect to the decision of the Citizenship Judge, namely :

a) Did the Citizenship Judge err in law and policy in requiring physical presence in Canada for the purposes of paragraph 5(1)(c) of the Act?

b) Did the Citizenship Judge err in law in assessing and applying the facts in a manner inconsistent with the statutory requirement for residence as such requirement has been clarified by prior decision of the Court?

[8]                 The applicant first submits that the standard of review of the decisions of a citizenship judge is close to the correctness end of the spectrum, with a measure of deference to the special knowledge of the citizenship judge, as stated by Lutfy J. (as he then was) in Lam v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 177 at 188 (F.C.T.D.).

[9]                 The applicant submits the content of the statutory requirement of residency may be determined from the decision of this Court in Re Papadogiorkakis, [1978] 2 F.C. 208 (F.C.T.D.) and the six factors and policy guidelines identified by Reed J. in Re Koo, supra. Its is submitted the Citizenship Judge in the present case misconstrued or misapplied the jurisprudence regarding the residency requirement. The application of the six factors developed in Re Koo, supra, indicates that the applicant satisfied the residency requirement.

[10]            With respect to the first factor, whether the individual was physically present in Canada for a long period of time prior to recent absences which occurred immediately before application for citizenship, the applicant submits it is met in the case at bar. He first came to Canada as a student in 1993, six years before the date of his application for citizenship and attended classes in Canada for the two-year preceding the period for the assessment of his residency for citizenship purposes.

[11]            With respect to the second factor, i.e. the place where the applicant's immediate family and dependants (and extended family) reside, the applicant argues this is also met since his parents are landed immigrants and live in Canada, and his sister and brother are Canadian citizens, currently living and studying abroad.

[12]            As to the third and fifth factor, whether the pattern of physical presence in Canada indicates a returning home or merely visiting the country, and whether the physical absence was caused by a temporary situation, the Applicant draws the Court's attention on the following facts. Firstly, as a student at home in Canada, he lived with his family at 5888 Churchill Street, in Vancouver, British Columbia, in a house of which he is a co-owner. Most of his absences from Canada were clearly for a short term and for family matters such as attending his grandmother's funeral, attending his sister's wedding, and short vacations.

[13]            The applicant notes that the absences that gave rise to the question of whether he met the residency requirements was the absence caused by his decision to attend a computer science course in San Mateo, California, which course of study was chosen because the Applicant's girl friend at the time resided there. The applicant stated in his application, at his interview and his Affidavit of June 26, 2001, that he never intended to make the United States his home, and that he always intended to return home to Canada. The applicant explains that he spent more time in the United States than he had intended during 1997 because his girl friend was in a motor vehicle accident and he wanted to stay with her during her convalescence. The applicant did not complete the Program and returned home to Canada where he applied for work.

[14]            Finally, with respect to the last factor, i.e. the extent of the applicant's physical absences from Canada during the relevant period of time, he submits that but for the period he spent studying in the United States, his absences from Canada were of short duration. The assessment of the evidence in light of the decisions of this Court in Re Papadogiorkakis, Canada (Minister of Citizenship and Immigration) v. Haggag, [2001] F.C.J. No. 215 (QL) (F.C.T.D.) and Re Farajallah, [1994] F.C.J. No. 2037 (QL) (F.C.T.D.) indicates that the applicant met the residency requirements of the Act.

[15]            The applicant submits the Citizenship Judge in the present case disregarded relevant evidence or failed to give it proper consideration because he focussed on physical presence in Canada in his analysis. It is thus submitted that the Citizenship Judge applied the wrong test or failed to give proper consideration to the relevant considerations of the applicant case. In considering whether an applicant has satisfied the residency requirements, the courts and the policy guidelines of the Ministry of Citizenship and Immigration have mandated the decision-maker to look at whether an applicant has sufficient ties to Canada notwithstanding a shortage of actual physical presence in the country. In the present case, the Citizenship Judge applied a "physical presence" standard, and thus fell into error.

[16]            Since Mr. Justice Lutfy's decision in Lam, supra, the jurisprudence of this Court establishes that there is a certain amount of deference owed to the specialized knowledge and experience of citizenship judges. Thus, a citizenship judge is entitled to adopt one particular approach to the determination of the residence requirement over another. So long as the approach chosen by the citizenship judge is correctly applied, the intervention of this Court is not warranted.

[17]            In the present case, I have reviewed the decision of the Citizenship Judge Day and concluded it is not clear from his reasons which approach to the residence requirement the judge applied. The Citizenship Judge seems to have based his decision heavily on an analysis of the factors set out in Reed J.'s decision in Re Koo although some passages of his decision he seems to deviate and I am satisfied that he merely paid lip service to the decision in Re Koo, supra.

[18]            Although the Citizenship Judge did not clearly state the statutory test he chose to apply in considering whether the applicant had met the residency requirement of subsection 5(1)(c) of the Act, I have nevertheless concluded from his decision that he used a test similar to that in Re Koo as he expressly stated he considered the factors set out therein in determining whether Canada is the country in which the applicant has centralized his mode of existence. However, based on my review of the factors set out in Re Koo and the evidence before the Citizenship Judge, I am not satisfied that the judge had a proper understanding of the case law and did not, in my view, correctly apply the chosen approach to the facts of the applicant's case for the following reasons.

[19]            The applicant's commitment to Canada dated back to January 13, 1995 when he became a permanent resident. His first and longest absence from Canada occurred from September 15, 1995 to September 15, 1997 when he decided voluntarily to pursue a course of study in San Mateo, California, because that is where his then girl friend lived. During that period, the applicant paid Canadian income tax, had a Canadian bank account, had British Columbia medical insurance and co-owned a house with his parents in Vancouver where he normally resides. The applicant failed to complete the Program, and as soon as his relationship with his girl friend came to an end, he returned to Canada in October 1997 where he resided with his parents, landed immigrants who live in Canada since 1989. He was truthful in admitting to having spent more time in the United States than he had intended because his girl friend was in a motor vehicle accident and he wanted to stay with her during her convalescence. Had she not had the car accident, he would have returned home to Canada earlier than he was able to. It is noteworthy that at no time during his stay in San Mateo did the applicant make an application for citizenship or more permanent status in the United States. All of this is evidence that he intended to return to Canada where he had his home, family and assets.    Further the Citizenship judge failed to acknowledge in his decision that the applicant came home for his Christmas vacation in 1995 for 24 days; 1996 summer vacation, 54 days, Christmas 1996 for 34 days.

[20]            Furthermore, upon his return to Canada, the applicant attended classes in Canada at Dorset College, UBC English Language Institute, Vancouver Premier College for the full two-year period preceding the period for the assessment of his residency for citizenship purposes. As a student at home in Canada, he continued living with his family in Vancouver. At the time, most of his absences from Canada were for short term family matters such as attending his grandmother's funeral, attending his sister's wedding, and short vacations. After leaving Premier College in December 1999, the applicant attempted to find appropriate work in the hospitality sector in British Columbia without success, but was offered instead a job working for a hotel in Taiwan where he is currently employed since October 2000.

[21]            The applicant stated in his application, at his interview and his Affidavit of June 26, 2001, that he never intended to make the United States his home, and that he always intended to return home to Canada. Intention to return to Canada, however firm, is not enough to establish ongoing residence. The person must also have maintained sufficient indicia of Canadian residence that it may be inferred in the circumstances that residence has been maintained and not merely intended to be resumed. In the present case, the applicant provided the Citizenship Judge with Canadian school and employment records, income tax records, a social insurance card, business incorporation records as he is a shareholder in his family company K.C. Yang Enterprises Ltd., utilities records for his household in Vancouver, residence purchase and tax records, a British Columbia Care Card, automobile records and credit card and bank records. Despite this evidence, the Citizenship Judge stated in his reasons that :

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.

[22]            In my view, the Citizenship Judge adopted a very strict approach in putting undue emphasis on the requirement that the applicant be physically present at least three years in Canada and disregarded highly relevant evidence of a residential pied-à-terre of the applicant in Canada : Badjeck v. Canada (Minister of Citizenship and Immigration), [2001] A.C.F. No. 1804 (QL) at para. 42 (F.C.T.D.); Re Cheung (1996), 113 F.T.R. 318 (F.C.T.D.). He placed greater emphasis on the requirement that an applicant must be physically present in Canada and erred in assessing that the fourth factor of the test in Re Koo (physical presence) can be considered the most important of the six.    This can been seen from several portions of his decision as follows :

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 does not demonstrate that you have actually spent enough time in this country to fulfil the intent of the Citizenship Act. At best, your life has been split between Canada and the USA (and since October 2000, Taiwan). You have not centralized your life in this country since Landing, but divided with the USA. Your absences were structural. That is, they appear to have been a pattern of life rather than a temporary phenomenon. They were not related to a humanitarian emergency, the temporary assignment of overseas duties to an employee of a Canadian company, a unique educational program, or assignment by the Canadian government to overseas duties.

[...] The intent of the Citizenship act is clear. You have not yet sufficiently centralized your life in Canada, living among Canadians, and becoming part of Canadian society.

(Emphasis added)

[23]            A person who is physically absent must first, before his absence, have established residence in Canada, and then in some way continue his residence in Canada while he is absent abroad. In cases where physical absence is encountered during the statutory period, proof of continued residence will usually require evidence as to the temporary nature of the absence, a clear intent to return, and the existence of sufficient indicia of factual ties with Canada to assert residence in fact during the statutory period : Re Sun (1992), 58 F.T.R. 264 (F.C.T.D.). This burden becomes more onerous as the period of physical absence increases. As I stated in Badjeck, supra at para 43 :

À mon avis, dans des cas extrêmes d'absences prolongées, comme en l'espèce, le demandeur devra faire la preuve non-contestée que la justification pour ses absences est compatible avec son intention d'élire et de maintenir résidence au Canada et d'y retourner, et que ses absences prolongées ne résultent pas de l'adoption d'un pays autre que le Canada comme pays de résidence.

[24]            In the present case, the applicant was absent for about 723 days of the 1460 days prior to application for citizenship, which the Citizenship Judge noted was a shortfall of 358 days for the purposes of assessing the residence requirement. This absence was not remarkable considering the purpose of pursuing a course of study abroad. He demonstrated he had established a substantial form of residential pied-à-terre in Canada with an intention to reside here. This Court has held in numerous cases that an applicant who has clearly, definitively established a home in Canada with a transparent intention of maintaining permanent roots in this country ought not to be deprived of citizenship merely because he is pursuing a course of study abroad or employment, even if he had accumulated a fairly limited number of days of physical residence in Canada.

[25]            In the present case, I am satisfied that the evidence before the Citizenship Judge supported the conclusion that the applicant had established a centralized mode of living in Canada since he became a landed immigrant, and particularly during the two-year period preceding his application for citizenship, and that the time spent in the United States was very temporary for the purposes of attending school only. The applicant had no intention of abandoning Canada as his place of residence. As well, I am satisfied that his quality of connection with Canada is significantly more extensive than with any other country. Finally, it is my opinion that the applicant has satisfied the residency requirements of subsection 5(1)(c) of the Act and, therefore, the Citizenship Judge erred in refusing his application for citizenship.

[26]            For the above reasons, I hereby quash the decision of the Citizenship judge and allow the appeal.

      JUDGE

OTTAWA, Ontario

January 28, 2002