Date: 20071102
Docket: T-509-07
Citation: 2007
FC 1140
Vancouver, British
Columbia,
November 2, 2007
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
JEFFREY
CHEN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Mr. Chen’s application for Canadian citizenship was refused. The
Citizenship judge (the judge) found that he had not met the residential
requirements of paragraph 5(1)(c) of the Citizenship Act, R.S.C. 1985,
c. C-29 (the Act) and he had not centralized his life in Canada. Mr. Chen appeals the decision
and claims that the judge breached the rules of procedural fairness and
erred in her application of the “centralized mode of existence” test. Mr. Chen
has not persuaded me that there is any merit in either of his arguments.
Consequently, his appeal will be dismissed.
I. Background
[2]
Mr. Chen is a 34-year-old citizen of China. On December 5, 1999, he obtained
permanent resident status in Canada. He returned to China on January 3, 2000. On April 19, 2000, he re-entered Canada, but returned to China on June 26th. In September
of 2000, he began studies at the Faculty of Law, University of British Colombia
(UBC). During the course of his studies, he returned to China frequently for both personal and
business reasons.
[3]
Upon completion of his law degree in April of
2003, Mr. Chen articled with Remedios and Company, a Vancouver law firm. While articling, he returned to China twice. He submitted his application for citizenship on January 26,
2004, and declared that he had taken nine trips to China (402 days outside of Canada) during the pertinent period. He
completed his articles in May of 2004 and returned to China on June 3rd. He maintains membership in the British
Columbia Law Society.
[4]
Mr. Chen submitted his Citizenship and
Immigration Canada (CIC) residence questionnaire (the questionnaire) with
supporting documentation on May 28, 2006. On December 8th of
that year, the judge reviewed Mr. Chen’s file. She found discrepancies between
his absences from Canada as
indicated in the questionnaire and his application. She re-calculated the
absences and credited him with an additional six days presence in Canada. Mr. Chen was 31 days
short of the requisite number of days. Because he had not satisfied the minimum
residential requirement and “his shortcoming could be considered trifling,” the
judge decided that a personal interview was required.
[5]
Mr. Chen attended the interview on January 23,
2007. On January 29th, the judge refused the application for failure
to meet the residential requirement. The judge concluded that Mr. Chen had not
centralized his life in Canada.
II. The
Legislation
[6]
Paragraph 5(1)(c) of the Act, among other
things, provides that an applicant must have accumulated 1095 days of residence
in Canada during the four years preceding the date of the application.
Subsection 5(1) of the Act provides:
|
5. (1) The Minister shall grant citizenship to any
person who
(a) makes application for
citizenship;
(b) is eighteen years of
age or over;
(c) is a permanent
resident within the meaning of subsection 2(1) of the Immigration and
Refugee Protection Act, and has, within the four years immediately
preceding the date of his or her 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;
(d) has an adequate
knowledge of one of the official languages of Canada;
(e) has an adequate
knowledge of Canada and of the responsibilities and privileges of
citizenship; and
(f) is not under a removal
order and is not the subject of a declaration by the Governor in Council made
pursuant to section 20.
|
5. (1) Le ministre
attribue la citoyenneté à toute personne qui, à la fois :
a)
en fait la demande;
b)
est âgée d’au moins dix-huit ans;
c)
est un résident permanent au sens du paragraphe 2(1) de la Loi sur
l’immigration et la protection des réfugiés 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;
d) a
une connaissance suffisante de l’une des langues officielles du Canada;
e) a
une connaissance suffisante du Canada et des responsabilités et avantages
conférés par la citoyenneté;
f)
n’est pas sous le coup d’une mesure de renvoi et n’est pas visée par une
déclaration du gouverneur en conseil faite en application de l’article 20.
|
III. The
Standard of Review
[7]
The weight of authority favours a standard of
review of reasonableness regarding the question of whether an applicant meets
the residential requirement of the Act: Canada (Minister of Citizenship and Immigration) v. Chang, 2003 FC 1472; Rizi v. Canada (Minister of Citizenship
and Immigration), 2005 FC 1641; Morales v. Canada (Minister of Citizenship and Immigration) (2005), 45 Imm. L.R. (3d)
284 (F.C.); Tshimanga v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1579; Chen v. Canada (Minister of
Citizenship and Immigration), 2006 FC 85; Zhao v. Canada (Minister
of Citizenship and Immigration), 2006 FC 1536; Tulupnikov v.
Canada (Minister of Citizenship and Immigration), 2006 FC 1439; Farrokhyar
v. Canada (Minister of Citizenship and Immigration), 2007 FC 697; Farschi
v. Canada (Minister of Citizenship and Immigration), 2007 FC 487.
[8]
The Act provides for an appeal to this Court.
The statute and the specific legislative provision delineate the scheme under
which citizenship is granted and its specific requirements. The purpose is not
polycentric. The question is one of mixed fact and law. Deference is owing to
the Citizenship judge’s expertise in determining whether the residential
requirement has been met provided that the judge exhibits an understanding of
the law and the application of the statutory test. I concur with the rulings in
the noted authorities that the balancing of these factors yields a standard of
review of reasonableness.
[9]
The pragmatic and functional analysis does not
apply to issues of procedural fairness. Generally, a decision will be set aside
where a breach of procedural fairness has occurred.
IV. Analysis
[10]
Although Mr. Chen raised issues of bias in his
written submission, he chose not to pursue that argument at the hearing.
Accordingly, no further mention will be made of it. His contention regarding a
breach of procedural fairness arises from his sworn affidavit wherein he
deposes that he was told at the outset of his interview that he could not be
approved as a Canadian citizen as a result of an assault charge in 2003. He
argues that because the assault charge was dropped, it could not be the basis for
a refusal of Canadian citizenship. I agree.
[11]
It is evident that the assault charge was
discussed during Mr. Chen’s interview for it is referenced in the judge’s
interview notes (tribunal record, pp. 23, 25). That said, it is not discussed
or mentioned in the judge’s reasons for decision. The reasoning provided for
the refusal of Mr. Chen’s application is cogent, comprehensive and manifests a detailed
consideration and application of the factors articulated in Re Koo,
[1993] 1 F.C. 286 (T.D.). There is nothing in the judge’s reasons to suggest
that she considered, relied upon, or even turned her mind to the assault charge
in determining whether Mr. Chen had satisfied the centralized mode of existence
test. In the absence of any indication that the assault charge was a
factor in her decision, and in the face of thorough reasons that signify
otherwise, I conclude that the assault was not a factor. Accordingly, this
argument fails.
[12]
The second argument -- that the judge improperly
applied the centralized mode of existence test -- is similarly without merit.
Mr. Chen disagrees with the judge’s conclusion. He is so entitled.
However, it is not the function of this Court to re-weigh the evidence in order
to arrive at Mr. Chen’s preferred outcome. The issue is whether the judge
made a reviewable error in her assessment of the evidence, and the application
of the test.
[13]
The crux of Mr. Chen’s assertions is that the
judge considered matters outside the prescribed period of time in the
calculation of the residential requirement. In addressing the factors in Re
Koo, the judge found as follows:
Was the
individual physically present in Canada for a long period prior to his first absence? Are most of the
absences recent and did they occur immediately before the application for
citizenship?
• Mr. Chen’s first absence was shortly after
arrival and his absences continued throughout the relevant period and subsequent
to it;
• Mr. Chen arrived on a student visa in Canada on September 6, 1999. On September
17, he returned to China. He
stated that he went back because of his father’s medical condition. He remained
in China until April 19, 2000,
except for a brief return to obtain his landing as a permanent resident on
December 5, 1999. He started law school at UBC in the fall of 2000. He studied
there until April of 2003, but took frequent trips back to China during his vacations. He articled
with Remedios and Company from May 2003 to 2004 during which time he took two
business trips back to China;
• During the relevant four years, Mr. Chen
took nine trips back to China
for a total of 396 days, or an average of 44 days per trip. His longest trip
back to China is April 24, 2001
to September 2, 2001, a period of 133 days for a summer job with his previous
employer, the law firm of Baker McKenzie;
• Upon completing his articles, Mr. Chen
returned to China and has been
there ever since, except for two brief visits to Canada to write his citizenship test on February 13, 2006, and to attend
his citizenship interview on January 23, 2007.
Where are the
applicant’s immediate family and dependents (and extended family) resident?
• His parents are in China. He has no siblings and is divorced. He has no family in Canada. Thus, he has strong family
connections in China and none in Canada.
Does the
pattern of physical presence in Canada indicate a returning home or merely visiting the country?
• Mr. Chen’s physical presence in Canada is more like a visitor than someone
who has established Canada as
his home:
-
he returned to China six times during his vacations while a student at UBC;
-
after completing his articles, he returned to China and has essentially remained there
ever since;
-
although he twice stated that he is resuming his
legal career in Canada it has
yet to happen;
-
Mr. Chen has no home and no social connections
in Canada.
What is the
extent of the physical absence?
• The total possible days of residence is
1460. He was resident for 1064, meaning he was absent for 396 days. This
shortfall of 31 days is not extensive;
• The absences have been for a variety of
purposes including family, medical, vacations, a summer job, attending a
friend’s wedding and business travel. Some of these trips were discretionary
travel, such as vacations.
Is the physical
absence caused by a clearly temporary situation?
• The absences are structural and not a
temporary situation. They are not related to a humanitarian emergency, a unique
educational program, assignment by the Canadian government to overseas duties
or temporary assignment by a Canadian company to overseas duties. The absences
are related to choices made for personal, medical and other reasons.
What is the
quality of the connection with Canada? Is it more substantial than that which exists with any other
country?
• Mr. Chen’s connection with Canada is not
nearly as strong as his connection with China. He studied in Canada as a landed immigrant and was eligible for preferential tuition
fees. During and after his studies, he has demonstrated little connection with Canada;
• During the relevant four-year period, his
life has been divided between China and Canada.
Following his application for citizenship, his ties to China have become even
stronger, with little connection to Canada.
[14]
Mr. Chen is correct that the judge mentioned
absences outside the relevant time period. However, in my view, nothing turns
on those comments. Mr. Chen did not meet the required total of residential
days. He does not suggest otherwise. His application for citizenship could have
been refused on that basis alone. However, the judge decided to examine his
residential record to ascertain whether he had centralized his mode of
existence in Canada. Had he
done so, in accordance with a line of established jurisprudence, the judge
could have regarded the days outside Canada as days within Canada. Unfortunately for Mr. Chen, the judge was unable to conclude that
he had centralized his mode of existence in Canada.
[15]
In referring to absences outside the relevant
period, the judge was merely placing Mr. Chen’s application in its
context. There was nothing within that overall context that pointed to a result
different than the one arrived at with respect to the relevant period. The judge
refers repeatedly to the relevant four-year period in her assessment of the
residential requirement. At the end of the day, she was unable to conclude that
Mr. Chen had centralized his mode of existence in Canada during that period. She concluded that he came here to study and
become a lawyer, but nothing more. The overall context did not assist Mr. Chen.
[16]
A reasonable decision is one in which there is a
line of analysis that will reasonably support the determination: Law Society
of New Brunswick v. Ryan, [2003] 1 S.C.R. 247. The judge’s reasons in
support of her decision withstand the scrutiny of a somewhat probing
examination. Consequently, Mr. Chen’s argument fails.
[17]
There is one final matter. Mr. Chen, at the
hearing and without prior notice, advanced a claim for costs. This claim was
not contained in his pleading and there was no reference to it in his record.
Therefore, had he been successful on the appeal, costs would not have been
awarded. The manner in which Mr. Chen advanced this claim is inappropriate and
unacceptable.
[18]
For the foregoing reasons, Mr. Chen’s appeal
will be dismissed.
ORDER
THIS COURT ORDERS that the appeal is dismissed.
"Carolyn
Layden-Stevenson"
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