Canada (Minister of Citizenship and Immigration) v. Xu, 2002 FCT 1111

Date: 20021024

Docket: T-107-02

Neutral citation: 2002 FCT 1111

VANCOUVER, BRITISH COLUMBIA, THIS 24^th DAY OF OCTOBER, 2002

PRESENT: THE HONOURABLE MR. JUSTICE LUC MARTINEAU

BETWEEN:

                                                  THE MINISTER OF CITIZENSHIP

                                                              AND IMMIGRATION

                                                                                                                                                       Appellant

                                                                              - and -

                                                                        WEIMIN XU

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

MARTINEAU J.

[1]                 This is an appeal by the Minister of Citizenship and Immigration under subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 (the "Act"), and section 21 of the Federal Court Act from the decision of the Citizenship Judge Paul Gallagher, dated December 4, 2001, wherein he approves the respondent's application for citizenship pursuant to subsection 5(1) of the Act.

[2]                 Paragraph 5(1)(c) of the Act sets out three criteria that must be satisfied by all applicants for Canadian citizenship. They are as follows:

(a)         lawful admission to Canada as a permanent resident;

(b)         retention of permanent residence status; and

(c)         the accumulation of at least three years of residence in Canada, within the four years immediately preceding the date of the application, as calculated under the prescribed formula set out under the said paragraph.

[3]                 In this case, only the third criterion is in issue. With respect to this third criterion, paragraph 5(1)(c) of the Act provides that an applicant for citizenship may be absent from Canada for one year during the four-year period preceding the date of his or her application. Parliament has, therefore, specifically provided that an applicant for citizenship must be resident in Canada for at least three years, or 1,095 days.

[4]                 The respondent is a citizen of China. He and his family became landed immigrants on November 21, 1996. On February 25, 2001, he completed an application for Canadian citizenship. In the four years immediately preceding his application, he was physically present in Canada for 571 days and absent from Canada for 889 days - equivalent to some two years and six months. Although the respondent fell some 524 days short of the residency requirements under paragraph 5(1)(c) of the Act, on December 3, 2001, the Citizenship Judge approved his application. The Minister now seeks to have the decision set aside on the grounds that the Citizenship Judge erred in fact, considered irrelevant facts, ignored material evidence that was before him, or otherwise erred in law in determining that the respondent had met the residency requirements for obtaining Canadian citizenship.

[5]                 The word "residence" is not specifically defined in subsection 2(1) of the Act. Conflicting views have been taken by judges of this Court concerning the necessity of maintaining a physical presence in Canada during the relevant four-year period. For certain judges, the statutory allowance of one year of absence during the four-year period creates a strong inference that a citizenship applicant's physical presence is mandatory during the other three years (Re Pourghasemi (1993), 19 Imm. L.R. (2d) 259 (F.C.T.D.), Re Chou (1997), 40 Imm. L.R. (2d) 308 (F.C.T.D.); Re Chang, [1998] F.C.J. No. 148) and Canada (Minister of Citizenship and Immigration) v. Cheung (1998), 148 F.T.R. 237).

[6]                 However, other judges of this Court have adopted the view that the residency requirements in paragraph 5(1)(c) of the Act entail more than a counting of days. An applicant for citizenship with an established home in Canada 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. Accordingly, the absences may be counted toward the total required days if the Citizenship Judge is satisfied that the reasons for absenteeism are justifiable (In re Citizenship Act and in re Antonios E. Papadogiorgakis, [1978] 2 F.C. 208 ("Re Papadogiorgakis") and Canada (Minister of Citizenship and Immigration) v. Liu, [1999] F.C.J. No. 122).

[7]                 More particularly, in Re Koo, [1993] 1 F.C. 286, at pp. 293-4, Reed J. opted for a liberal view of the residency requirement and stated that the test is whether it can be said that Canada is the place where the applicant for citizenship "regularly, normally, or customarily lives". In other words, has he or she centralized his or her mode of existence in Canada? Reed J. then enumerated the following list of questions or factors which assist in such a determination:

(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 applicant's immediate family and dependants (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 applicant 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 employment abroad, accompanying a spouse who has accepted employment abroad?

(6)            what is the connection with Canada: is it more substantial than that which exists with any other country?

[8]                 In Lam v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 177, Lutfy J. held that the standard of review in citizenship cases is close to the correctness end of the spectrum. 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), this Court should not interfere with that decision. As the appellate court in citizenship decisions, the function of the reviewing judge is to verify that the Citizenship Judge has properly applied the test of his or her choosing (Canada (Minister of Citizenship and Immigration) v. Mindich (1999), 170 F.T.R. 148 (F.C.T.D.), at para. 9 and So v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1232 (F.C.T.D.) at para. 29.

[9]                 Therefore, although the list of questions or factors set out in Re Koo, supra, is neither mandatory nor exclusive and having decided in the case at bar to apply the Re Koo, supra, test, the Citizenship Judge was required to apply these factors correctly. I will examine more particularly the answers given by the Citizenship Judge to the first, fourth and fifth questions.

[10]            In response to the first question set out in Re Koo, supra, which asks whether the respondent was physically present in Canada for a long period prior to his first absence, the Citizenship Judge states:

1996 - landed with wife and child. 1996-present - no income or job, lived on savings, objective: study hard to get the academic credential necessary for a good life. Applied for citizenship 25 Feb 2001. Period of residence 25 Feb 1997-25 Feb 2001. (Original estimate of days absent was prepared by his wife who was estimating by memory).

[reproduced with errors and omissions]

This finding does not address the question of whether the respondent had been physically present in Canada for a long period prior to his first absence and whether most of his absences are recent and occurred immediately before the filing of his application for citizenship. In fact, at no time does the Citizenship Judge consider whether the respondent had become established in Canada prior to his first departure and whether his absences are recent and occurred immediately before the filing of the application for citizenship.

[11]            This error proves to be fatal and I will comment on the necessity of establishing prior residence later in this decision.

[12]            In response to the fourth question set out in Re Koo, supra, which asks about the extent of the physical absence, the Citizenship Judge sets out the number of days the respondent was present and absent from Canada. He states: "absences - 889 days. Present (97-2000) - 571 days. 96-97 - sometime in Canada. Since 2001 - sometime in Canada, but most in China". The extent of the respondent's absences is very significant. In recent years, the jurisprudence with respect to the test to be applied on the residency requirement has tended to favour a conservative approach. That is, judges have been inclined to place greater emphasis on the requirement for an applicant to be physically present in Canada (Zhang v. Canada (Minister of Citizenship and Immigration) (2000), 197 F.T.R. 225 and Canada (Minister of Citizenship and Immigration) v. Chan, [2000] F.C.J. No. 1939 . This factor should not be underestimated by the Citizenship Judge, particularly in cases, such as the present one, where it is doubtful that prior residence in Canada has been established in the first place.

[13]            In response to the fifth question set out in Re Koo, supra, of whether the respondent's absences were caused by a clearly temporary situation, the Citizenship Judge states simply: "causes of absence - 1 - study for GMAT exams, 2- caring for daughter before being cared for by grandparents". His response does not address the issue of whether the respondent's absences are caused by a clearly temporary situation. Moreover, the respondent has given a multiplicity of reasons for his several and significant absences (Certified Record, page 33):

[14]            As can be seen, the reasons for his absences mentioned above cast grave doubts concerning the extent of the analysis and the accuracy of the findings made by the Citizenship Judge. Here, the Citizenship Judge seems to have simply accepted the respondent's explanations without any form of questioning.

[15]            In view of the material errors noted above, I find it unnecessary to analyse here the answers given by the Citizenship Judge to the other questions raised in Re Koo, supra. Suffice it to say that I am in agreement with the conclusions reached in this regard by the appellant's counsel in her memorandum.

[16]            I also find that the Citizenship Judge based his decision on irrelevant considerations. Under the heading "Decision", he stated as follows:

"This application is approved even though the applicant has spent most of the 4 year pre application time in China rather than in Canada effectively as a student. Most of the absences in Canada were required to allow him to write GMAT exams which in turn would allow him to be admitted to a Canadian or American university and thereby secure the economic future of his family. He has chosen to establish his "centre of life" in Canada rather than China where he could have remained and had a good business career. However, he & his family chose Canada. He will be able to obtain a visa to study in US - and have access to student loan funding - with Canadian citizenship.    NB. The original notification of only 442 days absent was an estimate made by his wife when he was in China. The 889 days absent is accurate & consistent with passport records."

Moreover, there is absolutely no explanation in the Citizenship Judge's reasons as to why the respondent chose to study for the GMAT in China for months at a time rather than in Canada. Furthermore, it is not relevant to whether the respondent has established his centre of life in Canada that he gave up "a good business career" in China. It is also not relevant in order to determine whether the respondent's application should be approved that, with a grant of Canadian citizenship, the respondent would be able to obtain a visa to study in the United States and have access to student loan funding.

[17]            Based on my review of the record, the Citizenship Judge did not correctly apply the case law. The jurisprudence of this Court has continued to emphasize the need for substantial physical presence in Canada as well as the need to demonstrate a meaningful connection to Canada prior to leaving for a temporary purpose, before citizenship can be acquired. As stated by Pinard J. in Re Chow, supra, at p. 310 (F.C.T.D.):

There is jurisprudence which does not require physical presence of the applicant for citizenship in Canada for the entire 1,095 days, when there are special or exceptional circumstances. However, in my view, too long of an absence from Canada, albeit temporary, during that minimum period of time, as in the present case, is contrary to the purpose of the residency requirements of the Act. Indeed, the Act already allows a person who has been lawfully admitted to Canada for permanent residence not to reside in Canada during one of the four years immediately preceding the date of that person's application for citizenship ...

[18]            Respondent's counsel argues that the Re Koo, supra, test should be somewhat relaxed in view of the fact that the respondent is a student. I note that the respondent was not a full-time student and that he has also given family and business reasons for his absences.

[19]            In any event, in Chan v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 376, a key decision in "student cases", Pelletier J. stated at paras. 9, 10, 11, 12, 13 and 16:

[9] In order to meet the requirements of the Citizenship Act, residence must first be established and then it must be maintained. It is only if residence is established that it can be maintained. Residence is not established by the mere fact of landing. In the present case, the evidence of establishment of residence is not strong. The applicant's own affidavit discloses that she returned to the United States more or less upon landing to resume her studies. She relies upon the fact of having a room in her parent's room [sic] as well as certain passive indicia of residence to establish her residence in Canada.

[10] This issue was considered by the [sic] Cattanach J. in Re Pattni, [1980] F.C.J. No. 1017 where the learned judge held as follows:

[para35] In order that physical absences from Canada may count as residence in Canada an applicant must first have established a residence in Canada.

[para36] In Re Perviz Mitha, [1979] F.C.J. No. 501, decided by myself on June 1, 1979 I had occasion to say this:

It seems to me that in determining whether physical absences from Canada are for such temporary purpose as will not break the continuity of residence there must first be a "residence" established and that is a matter of degree with respect to how the person "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" but residence should be distinguished as in ordinary speech.

[11] See also Canada (Secretary of State) v. Yu, [1995] F.C.J. 919 (T.D.), a decision of Rothstein J. (as he then was) which holds that a failure to establish residence is fatal to an application for citizenship.

[12] Another case which raised the same issue in the context of a student like the applicant is Canada (Minister of Citizenship and Immigration) v. Lam, [1999] F.C.J. No. 651 where the applicant, who was 22 years old at the time, accompanied her parents to Canada for the purpose of being landed and then returned to her studies in the United States. She returned to Canada on occasion as well as holidaying in Hong Kong. She applied for citizenship and was found to be well short of the 1095 required days of residence. Simpson J. said this about the question of establishing residence:

[para10] However, Papadogiorgakis is not authority for the proposition that a student can come to Canada for a short time, not establish initial residence, then spend long periods of study and vacation abroad and, on that basis, expect to meet the residence requirement for Canadian citizenship. I should observe that establishing residence is not only a matter of assembling the usual paperwork associated with residence (health card, social insurance card, bank card, tax returns, library card, driver's license, etc.). In my view, some effort to integrate into and participate in Canadian society is also necessary. This could occur in a workplace, in a volunteer group, or in a social or religious activity, to name just a few possibilities.

[13] The same issue arose again in Chan v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1796 where Wetston J. also had before him an applicant who was a student at the time of landing. This is what he said about establishing residence:

[para9] In my opinion, where physical presence is minimal, the most important consideration is the quality of the applicant's attachment to Canada. There must be evidence to show a genuine attachment to Canada. This attachment must go beyond having only connections to family located in Canada, a Canadian driver's license or a social insurance number.

[para10] There are a number of considerations which may serve to highlight this attachment. Did she make substantial efforts to return to Canada during breaks? If not, why not? For example, did she return to Canada during summer breaks and obtain summer employment or do community work in Canada? In the course of those visits, did she engage in activities which would further her integration into Canadian society? For example, did she join a social club, athletic club, church group or take a course or program? Did she make a reasonable effort to determine if alternate programs existed in Canada which could satisfy her educational goals and to enrol in those programs?

[para11] In summary, the appellant must establish residence in Canada in mind and in fact. She must have centralized her mode of living in Canada.

[...][16] Counsel's representations as to the effect of the decision of Lutfy A.C.J. in Lam, supra, do not assist the applicant because the issue in this case is whether residence has been established, not whether it has been maintained. There is no disagreement on the question of whether residence must be established before it can be maintained, so there is no opportunity to follow one line of cases or the other. There is only one line of cases.

[20]            I also note that in the extract from Canada (Minister of Citizenship and Immigration) v. Lam, [1999] F.C.J. No. 651, quoted by Pelletier J. in Chan v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 376 [supra], Simpson J. comments that the liberal construction of the residency requirement in Re Papadogiorgakis, supra, is based on the premise that prior residence in Canada had been established before Papadogiorgakis left to study abroad. In Re Papadogiorgakis, supra, the applicant had entered Canada on a student visa on September 5, 1970, and was admitted for permanent residence on May 13, 1974. Papadogiorgakis was present in Canada from September 5, 1970 to January 28, 1976, before he left for studies in the United States, that is some 5½ years after having established himself in Canada. By comparison, the respondent in this case was present in Canada for only 5 days prior to departing for China. As noted by Pelletier J. in Canada (Minister of Citizenship and Immigration) v. Ting, [2002] F.C.J. No. 1161, another "student case", at paragraph 11:

Had he [Papadogiorgakis] applied for citizenship before he began his studies in the United States, he would have met the residence requirement on the strength on [sic] his physical presence in Canada. His was truly a case of a person with a strong attachment to Canada, and a lengthy period of presence in Canada before his departure for studies abroad. Consequently, Papadogiorgakis is not authority for the blanket proposition that time spent studying abroad is ipso facto constructive residence in Canada.

[21]            In conclusion, I find that the reasons provided by the Citizenship Judge do not demonstrate a clear understanding of the test posed in Re Koo, supra, and are not accurate. Aside from the presence of part of his family in Canada during the relevant four-year period, there is simply not enough evidence on file to support the Citizenship Judge's decision and to establish constructive residency. That being so, I note that the applicant's wife and daughter have returned to live with the respondent in China since April 2001, which confirms that the application for citizenship made by the respondent is premature and that he has not centralized his living in Canada.

                                                  ORDER

The appeal, by the Minister of Citizenship and Immigration, is allowed and the decision of the Citizenship Judge, dated December 4, 2001, is set aside.

(Sgd.) "Luc Martineau"

Judge

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   T-107-02

STYLE OF CAUSE: Minister of Citizenship & Immigration v. Weimin Xu

PLACE OF HEARING:                                   Vancouver, British Columbia

DATE OF HEARING:                                     October 16, 2002

REASONS FOR Order :                                 Martineau, J.

DATED:                      October 24, 2002

APPEARANCES:

Ms. Pauline Anthoine                                            FOR APPELLANT

Mr. Warren Puddicombe                                                  FOR RESPONDENT

SOLICITORS OF RECORD:

Mr. Morris Rosenberg                                                     FOR APPELLANT

Deputy Attorney General of Canada

Larson Boulton Sohn Stockholder                       FOR RESPONDENT

Vancouver, B.C.