REASONS FOR
JUDGMENT
BARNES, J.:(Orally)
These are my reasons for judgment delivered
orally at Vancouver on December 18th, 2007 in the matter of Wenmin
Zhu versus the Minister of Citizenship and Immigration. This is an appeal by
Wenmin Zhu from a decision of the Citizenship Court brought under subsection
14(5) of the Citizenship Act, Revised Statutes of Canada 1985 c.29.
The issue before the court is one of mixed fact
and law. I must determine whether the Citizenship Court understood the legal
test for establishing residency and appropriately weighed the evidence against
that test.
It is clear from the authorities that some
deference is owed to the Citizenship Court in reviewing this type of issue.
The Citizenship Judge had the benefit of questioning Mr. Zhu about his
residency and also about the documents that he was relying upon to establish
residency. That was an advantage that the Citizenship Court enjoys over my
ability to assess credibility in a proceeding such as this one.
I would therefore adopt the standard of review
analysis of my college Justice Tremblay-Lamer in the case of Canada v. Fu,
or Fu, F-U, 2004 FCJ number 88, at paragraph 7, where she said:
"In the case at bar, where the court must verify that the
Citizenship Judge has applied one of the accepted residency tests to the facts,
it raises, in my view, a question of mixed fact and law. Taking into account
that some degree of deference is owed to the specialized knowledge and
experience of the Citizenship Judge, I would conclude that the applicable
standard of review was that of reasonableness simpliciter."
I am satisfied that the Citizenship Judge
understood the legal test for determining residency. He first looked at
whether Mr. Zhu had established a physical presence in Canada for the minimum
required period of 1,095 days. He then looked at the evidence which might have
proven that Mr. Zhu had centralized his life in Canada whether or not he had
been physically present here for the 1,095 days. I do not agree that it was an
error for the Citizenship Judge to approach the legal tests in this way. He
did not confuse the two tests. He kept them separate from one another.
For both of the tests applied, the Citizenship
Judge found Mr. Zhu's evidence to be lacking. With respect to these matters,
to these issues, the Citizenship Court's decision stated:
"Applicant has claimed that with the exception of two trips
to China he lived in Burnaby for the duration of his relevant residency
period. He claims that he did not work, nor pursued any business in Canada.
He owns no flat, house, apartment or even a car. He claims that he was working
'on his own computer software program' yet there are no results for this five
years old assignment. All his family lives in China with the exception of his
sister who lives in the United States.
He has not been able to produce a single document of active
residency to support his claims of residency in Canada. This computer engineer
who claims to have lived in Burnaby all these years did not know anything about
Burnaby's Simon Fraser University. This university may not be known worldwide
but it is certainly recognizable in Canada. Of course any university-educated
resident of Burnaby for five years would be able to recognize it.
One cannot accept applicant's claims of residency of 1,200
at face value unless supported by some form of documentary evidence of active
residency. During the interview, applicant was given another chance to submit
such documents as employment, school records, drop-in clinic, physician's
record, copies of pages of old passport (which covers the relevant residency
period), et cetera. Applicant submitted some very selective pieces of
documents showing passive residency such as bank account records, Revenue
Canada records and some 'rental receipts'.
There is no doubt in my mind that applicant has made numerous
misleading and contradictory statements. He has not been able to establish his
claims of residency in Canada with proof of active residency. He is certainly
not anywhere close to meeting the requirements of 1,095 days of physical
presence in Canada."
I have looked at the evidence that Mr. Zhu
relied upon to establish his Canadian residency before the Citizenship Court.
It is unquestionably deficient. It should not be difficult for a person living
in Canada for a number of years to produce evidence that conclusively
establishes a physical presence here. Mr. Zhu could have obtained affidavits
from friends and neighbours, his landlords, receipts for purchases of goods and
services, telephone records of calls made from Canada, complete rental records
for the entire period in question, including leases if there were any, utility
bills, photographs, records of contacts with government agencies,
correspondence sent by family, friends, government, other businesses,
employers, et cetera, to his Canadian addresses, perhaps supported by
affidavits.
He was given the opportunity to obtain this
type of information and his effort in that regard was fairly described by the
Citizenship Court as selective. It was also reasonable for the Citizenship
Court to describe most of these documents as establishing only a passive
residency. It is easy to maintain nominal residence here but to be frequently
absent from Canada. The obvious concern here is that Mr. Zhu may have been in
the United States and not in Canada for much of the relevant time. Certainly
his bank records show frequent deposits of U.S. currency along with an
indication in the record of an earlier history of U.S. employment.
I do not accept Mr. Zhu's argument that the
travel documents that he relied upon are indisputable evidence of Canadian
residency. It is not unheard of that permanent residents may hold more than
one set of travel documents. Other evidence may be required beyond travel
documents, particularly in a case like this one where Mr. Zhu had previously
been found to have altered his passport.
I also reject Mr. Zhu's argument that the
request for documents to establish his physical presence is a breach of his
privacy. That argument shows a clear misunderstanding of the burden that he
carried. It was his responsibility to establish the fact of his residency and
it is not a breach of privacy to expect him to produce this type of evidence.
If he did not want to produce the information he took the risk that his
application for citizenship would be refused, just as it was.
This argument is also inconsistent with what
Mr. Zhu has attempted to produce on this appeal. He has submitted residency
statements, banking statements and passport pages that he failed to give to the
Citizenship Court. If he believed that information was helpful to making his
case before me he should have appreciated that it would also be helpful to the
Citizenship Court.
I do not accept Mr. Zhu's explanation that he
was not asked for this type of evidence and did not think to produce it before
the Citizenship Court. He was clearly asked to produce tenancy and banking
records and the U.S. visa page from his prior passport. He did produce some
banking records, some residency evidence, and some of the pages of his earlier
passport. He has now included in the court record the missing U.S. visa page.
He has added to the record before me but he
clearly knew that this type of information was relevant and important. His
effort to produce the complete record before the Citizenship Court was
obviously inadequate. I would add that Mr. Zhu's explanation for now producing
missing pages from his passport is unconvincing. Why he chose to withhold that
information I still do not understand.
Mr. Zhu has made some generalized allegations
of unfairness and prejudice but I can identify no material evidence to support
those assertions. I agree with counsel for the respondent that the reasons
here are clear and articulate. Mr. Zhu was treated fairly and given ample
opportunity to make his case in a convincing way but he failed to do so. While
he may disagree with the inference drawn by the Citizenship Court about the
extent of his local knowledge, that was an inference open to be drawn. It is
unusual that a person who has lived in this area for several years would not be
aware of the existence of Simon Fraser University.
While I accept Mr. Zhu's point that there was
some evidence of active residency produced by him before the Citizenship Court,
it was certainly very slight, and I do not believe that the failure of the
Citizenship Court to recognize that evidence was material to the outcome. In
other words, the result would, to my thinking, have been exactly the same.
There is nothing in the decision to indicate
that Mr. Zhu's earlier failed citizenship application had any bearing on the
outcome of his second application but, in any event, it is not an error for the
Citizenship Court to examine an applicant's credibility in light of earlier
attempts to mislead the court.
In conclusion, I find that the decision of the
Citizenship Court was reasonable in all respects and should not be set aside on
this appeal.
Mr. Zhu, you are free to submit another
application for citizenship, but when you do you would be well advised to submit
more evidence than you did on either of the earlier occasions when you have
applied. Indeed, I would recommend that you consult an immigration lawyer to
identify the kind of evidence that would be helpful to prove that you have been
present in Canada for the required amount of time.
You may very well have been present here for
that amount of time but the evidence that I have seen does not go very far to
establish that fact. This is a mater of obvious concern to you, it is of some
considerable importance to you. I can tell that by the way you have presented
your case here today. You were articulate, you made some strenuous points in
your favour. Unfortunately I have not been able to accept them, but given the
importance of Canadian citizenship to you, personally, you need to take this
very seriously. Get some good legal advice, spend some money, do this right.
If you are residing here on a continuous basis it will not be difficult to
prove it with a thorough presentation of evidence, and then you will be granted
Canadian Citizenship, something that I think we all hope you can achieve.
So those are my reasons for the dismissal of
this application. I want to thank both of you, Mr. Zhu and counsel for the
Crown, for the excellent way in which you have presented your arguments to me,
both in writing and orally. It was very helpful.
Mr. Zhu you have done quite a remarkable job in
articulating a position for someone who has no legal experience or much
experience in courtrooms. You did a good job of presenting your case and I
think if you – I am sorry, I think if you put the same amount of effort into
another application for citizenship you will probably be successful.
MR. ZHU: No way. I'm ashamed of this country. Just deny
the facts.
(PROCEEDINGS CONCLUDED AT 12:55 P.M.)
I HEREBY CERTIFY THAT THE FOREGOING
is a true and accurate transcript of the proceedings
herein to the best of my skill and ability.
_____________________________________
B. Moss, Court Reporter
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