Date: 20070209
Docket: T-844-06
Citation: 2007 FC
155
Ottawa, Ontario, February 9, 2007
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
WAI
KWONG YU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
I. Introduction
[1]
Mr. Wai
Kwong Yu (the “Applicant”) appeals from the decision of Citizenship Judge
Brenda Brown. In her decision, dated March 17, 2006, the Citizenship Judge
refused the Applicant’s application for Canadian citizenship on the ground that
he had failed to satisfy the residency requirements of the Citizenship Act,
R.S.C. 1985, c. C-29 (the “Act”).
II. Facts
[2]
The Applicant
was born in Hong Kong and became a permanent resident in Canada on November 5, 1998. Upon
arrival in Canada, he was accompanied by his
wife and two young sons. He applied for Canadian citizenship on October 3,
2002, together with his wife and children. The application of his wife and
children was subsequently separated from that of the Applicant, and citizenship
was subsequently awarded to the wife and children.
[3]
The
relevant time period for the purpose of assessing his citizenship application
was the period from November 5, 1998 to October 3, 2002, a period of 1,428
days. The Citizenship Judge determined that the Applicant’s actual physical
residence in Canada was 740 days less than the
residency requirement of 1,095 days as set out in the Act.
[4]
She then
proceeded to consider the question of whether the Applicant had centralized his
way of life in Canada and proceeded to address the six factors identified in Koo
(Re) (1992), 59 F.T.R. 27, pertaining to the issue of centralization of
life in Canada. The Citizenship Judge addressed each of the following factors:
i)
Was the
individual physically present in Canada
for long periods prior to his first absence? Are most of the absences recent
and did they occur immediately before the application for citizenship?
ii)
Where are
the Applicant’s immediate family and dependants (and extended family) resident?
iii)
Does the
pattern of physical presence in Canada
indicate a returning home or merely visiting the country?
iv)
What is
the extent of the physical absence?
v)
Is the
physical absence caused by a clearly temporary situation?
vi)
What is
the quality of the connection with Canada?
Is it more substantial than that which exists with any other country?
[5]
After
considering the evidence before her, including certain documents that had been
submitted by the Applicant’s representative, Ms. Bertha Mok of Alexander Ng
Notary Corporation, the Citizenship Judge concluded that the Applicant had
failed to show that he had centralized his mode of living in Canada. She concluded that his
absences from Canada, for the purpose of assisting
in the operation of his father’s business in Hong Kong, were more than a
temporary situation. She also determined that the Applicant’s connection with Canada was not more substantial than
his connection with Hong Kong.
[6]
Following
her assessment of the evidence, the Citizenship Judge dismissed the Applicant’s
application.
[7]
She then
went on to consider the positive exercise of discretion, pursuant to
subsections 5(3) and 5(4) of the Act, as a means of recommending the grant of
citizenship to the Applicant. The Citizenship Judge found that the Applicant
had failed to submit any evidence that would justify the positive exercise of
discretion in that regard and said the following:
After having carefully considered all the
circumstances of the applicant’s case, I have decided that there is no reason
to make a favourable recommendation for the use of discretion, since there was
no evidence of any health disability, any special or unusual hardship or
services of an exceptional value to Canada.
III. Summary of Arguments
A. The Applicant
[8]
In this
appeal, the Applicant raises two issues. First, he submits that the Tribunal
Record that was before the Citizenship Judge was incomplete. He says that he
had submitted two statutory declarations dated January 12, 2004, to the
Citizenship and Immigration Office in Vancouver.
In his affidavit, filed as part of the Record for this appeal, the Applicant
stated that at some earlier time, the two statutory declarations were on the
file. These statutory declarations were made on January 12, 2004, one by
the Applicant and the other by his wife. The Applicant now argues that because
these documents are not included in the Tribunal Record, it must be presumed
that this evidence was not before the Citizenship Judge when she made her
decision.
[9]
The Applicant
argues that this evidence is relevant to the assessment of the degree to which
he had centralized his life in Canada because the statutory declarations
offer an explanation for his temporary absences from Canada and further,
demonstrate his strong emotional ties to his home in Canada.
[10]
Relying on
the decision of this Court in Ahmed v. Canada (Minister of Citizenship and
Immigration),
2003 FCT 180 the Applicant argues that the incomplete Record gives rise
to a breach of natural justice. He submits that the decision should be set
aside on this ground alone.
[11]
Next, the Applicant
submits that the Citizenship Judge erred in misstating the relevant time period
for the purpose of assessing the evidence before her. He notes that she
initially identified the relevant time period as being November 5, 1998 to
October 3, 2002, that is the time period beginning when the Applicant received
permanent resident status in Canada and up to the time that he
applied for Canadian citizenship.
[12]
The Applicant
then argues that the Citizenship Judge referenced facts that occurred outside
of this relevant time period. Specifically, he suggests that the Citizenship
Judge considered facts corresponding to the period after August 2004 and up to
the time of her decision. In this regard, the Applicant refers to the
Citizenship Judge’s references to the current place of residence of his family
and dependents, as well as to the fact that he is currently living in Hong Kong in order to assist with his
father’s business.
B. The Respondent
[13]
The
Minister of Citizenship and Immigration (the “Respondent”) addresses three
issues in his submissions. First, he submits that the applicable standard of
review in this case is that of reasonableness simpliciter, on the basis
that an assessment of whether a person has satisfied the requirements of the
Act involves a question of mixed fact and law. In this regard, the Respondent
relies on Canada (Minister of Citizenship and Immigration) v. Fu, 2004
FC 60; Chen v. Canada (Minister of Citizenship and
Immigration),
2006 FC 85 and Rasaei v. Canada (Minister of Citizenship and Immigration), 2004 FC 1688.
[14]
Next, the
Respondent submits that the Citizenship Judge did not breach any principles of
natural justice. Although he acknowledges that the two statutory declarations
in issue were not before the Citizenship Judge at the time of her decision, the
information contained in those declarations was before the decision-maker. The
Respondent says that the two statutory declarations addressed the reasons for
the Applicant’s travel outside Canada, that is the ill health of his parents
and his obligations to assist with the family business in Hong Kong.
[15]
The
Respondent argues that all this evidence was before the Citizenship Judge,
notwithstanding the absence of the two statutory declarations from the Tribunal
Record. Furthermore, the Applicant appeared before the Citizenship Judge and
had the opportunity to advance any necessary information for the purpose of
succeeding in his application for citizenship.
[16]
Finally,
the Respondent argues that the Applicant’s submissions with respect to the
Citizenship Judge’s alleged misapprehension of the relevant time frame are
without foundation. He submits that the Citizenship Judge, in her decision,
consistently refers to the four year period immediately preceding the Applicant’s
application for citizenship as being the relevant time frame. The Respondent
argues that there was no merit in this submission.
IV. Discussion and Disposition
[17]
I will
first address the relevant standard of review. Essentially, the mandate of a
Citizenship Judge is to assess the evidence submitted in support of an
application for citizenship, in light of the statutory requirements, I agree
with the submissions of the Respondent that the applicable standard of review
in this case is reasonableness simpliciter, since the Citizenship Judge
is required to consider a question of mixed fact and law.
[18]
I will
first address the argument advanced by the Applicant concerning an alleged
breach of natural justice arising from the absence of the two statutory
declarations from the Tribunal Record.
[19]
I agree
wholly with the submissions of the Respondent that all the information
contained in those documents was otherwise before the Citizenship Judge. The
Tribunal Record contains material that was released to the Applicant, upon his
request pursuant to the Access to Information Act, R.S.C. 1985, c. A-1.
The Tribunal Record refers to an access request that was made in April 2004.
Enclosed in the documents that were released following that request is a
letter, dated January 12, 2004, from Ms. Mok, the Applicant’s representative
[20]
That
letter was addressed to Citizenship and Immigration Canada, to the attention of
A. Carmichael, Citizenship Officer, in Vancouver, British Columbia. The letter refers to a
request from Citizenship and Immigration for production by the Applicant of his
Statement of Travel Records (“STRs”) and copies of Passports for the Applicant
and his wife. In response to that request, Ms. Mok forwarded certain documents,
including STRs for the Applicant and his wife and copies of their Passports.
The letter also refers to additional documentation and says as follows:
You may be aware that the absences
computed from the STRs do not correspond with those in the application, the
reasons and explanations are set out in client’s Statutory Declaration (SD)
attached herewith, and the following copies are additional information to be
read with:
a)
2
Computation of Present & Absent as per STR;
b)
Notice of
Assessment of Mr. Yu for Tax Year from 1999 – 2002;
c)
State of Title Certificate in name of our clients as
joint tenants; and
d)
2 doctor certificates
relating to the health condition of Mr.Yu’s parents.
[21]
All of
these documents, that is documents a) to d), are included in the materials that
were released pursuant to the access request made by the Applicant. The two
statutory declarations referenced in the letter of Ms. Mok are not included in
the Tribunal Record that was produced pursuant to the Federal Courts Rules,
SOR/98-106, as amended (the “Rules”). However, according to the Applicant’s
affidavit, these statutory declarations were provided to Ms. Mok when she
received a response to the access request. Paragraph 23 of that affidavit
provides as follows:
Further I am advised by Ms. Bertha Mok
that these two statutory declarations were received by the citizenship office
because copies of same were provided to her in a response to an Access to
Information Act request she made on April 14, 2004 for copies of the
Citizenship records for me and my wife. It is from that Access to Information
Act response that the copies in Exhibit “A” have come from.
[22]
In spite
of the absence of the statutory declarations from the Tribunal Record, I am
satisfied that the information contained in the statutory declarations of the Applicant
and his wife was otherwise before the Citizenship Judge. She fully appreciated
the reason for the Applicant’s absences from Canada, that is to care for his ailing parents
in Hong Kong and to run the family business in Hong Kong, for the purpose of
generating income for his immediate family and his extended family.
[23]
In these
circumstances, the absence of the statutory declarations from the Tribunal
Record had no material effect. There was no breach of natural justice. In any event,
not every breach of natural justice gives rise to a remedy; see Mobil Oil
Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994]1 S.C.R.
202. The Applicant’s submissions in this regard appear to elevate form over
substance. The relevant evidence was before the Citizenship Judge and was duly
assessed by her.
[24]
Finally, I
turn to the Applicant’s submissions concerning the alleged miscalculation of
time by the Citizenship Judge. I agree with the Respondent that there is no
merit in this argument. The Citizenship Judge correctly identified the relevant
time periods, that is the four year period immediately preceding the Applicant’s
application for Canadian citizenship. She did not err in this regard.
[25]
It follows
that the Applicant’s appeal is dismissed, no order as to costs.
ORDER
The appeal is dismissed, no order as to costs.
“E.
Heneghan”
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