Date:
20130109
Docket:
T-955-12
Citation:
2013 FC 19
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Ottawa, Ontario,
January 9, 2013
Present: The
Honourable Madam Justice Tremblay-Lamer
BETWEEN:
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ZHOU, YONG
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Applicant
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and
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MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an appeal by the applicant under subsection 14(5) of the Citizenship Act,
RSC 1985, c C-29 (the Act) and section 21 of the Federal Courts Act, RSC
1985, c F-7, from a decision of the Citizenship Judge denying the applicant’s
citizenship application pursuant to paragraph 5(1)(c) of the Act.
I.
Facts
[2]
The
applicant is 35 years old and is from Jiangxi province in China. He has been a
permanent resident in Canada since March 31, 2006.
[3]
On
June 22, 2009, he applied for Canadian citizenship. During the relevant period,
from March 31, 2006, to June 22, 2009, the applicant declared that he was
absent 79 days for a total of 1178 days that he was physically present in
Canada.
[4]
On
March 9 2012, his application was denied on the basis that he did not meet the
requirements of paragraph 5(1)(c) of the Act.
II. Decision
of Citizenship Judge
[5]
The
Citizenship Judge found that she was not satisfied, on a balance of
probabilities, that the information provided by the applicant reflected the
number of days of physical presence in Canada. She thus chose to base her analysis
on the qualitative test set out in Koo (Re), [1993] 1 FC 286 (Koo)
to determine whether the applicant had a centralized mode of existence in
Canada.
[6]
First,
she notes that the applicant arrived in Canada from China on March 3, 2012, a
few days before his interview. The applicant explained that he was visiting his
father in China who had undergone heart surgery. However, the citizenship judge
noted that the applicant could not provide details about the surgery without
consulting his documents.
[7]
Regarding
employment and income, the applicant did not provide any evidence of employment
in Canada. During his interview, he confirmed that he had never worked in
Canada and that he lived off the money he had saved in Shanghai and financial
support he received from his parents. Later, he admitted that he had worked for
a few weeks in a restaurant with friends and that he had been paid in cash. She
also noted that the applicant had declared different amounts in his federal and
provincial tax returns for the 2006 to 2009 taxation years. He explained that
he had received bursaries and loans from the province of Quebec. The Citizenship
Judge observed that the applicant did not seem to be familiar with the
information contained in his own income tax returns and that it was an
indication that the applicant’s life was not centralized in Canada.
[8]
With
respect to education, the applicant attended three postsecondary institutions
in Quebec: Concordia University, University of
Quebec at Montréal (UQAM) and McGill University. He earned a bachelor’s
degree in information security from Concordia University. He explained
that it was very difficult to find work in his field. He stated that he dropped
out of school because of language difficulties and the management program at
McGill University.
[9]
With
respect to the applicant’s residency and travel, the Citizenship Judge concluded that his statements
were incoherent. He stated that he travelled to China several times to take
care of his father. He also submitted a few leases to demonstrate his residency
in Canada. However, only one lease is in the applicant’s name, and it is for
only three months in 2006. The applicant provided statements from a few people
who allegedly had lived with him (whose names are on the other leases) but none
of these statements were certified by a commissioner for oaths or a notary.
[10]
The
Citizenship Judge also drew a negative inference from the fact that the
applicant could not name one store in the Verdun neighbourhood of Montréal, the
neighbourhood where the applicant claims to have lived. She also noted that the
applicant has no family in Canada.
[11]
Thus,
the Citizenship Judge found that it was difficult to clearly determine the
amount of time the applicant spent in Canada and that Canada was not the
country where the applicant “regularly,
normally, or customarily lives”.
III. Issue
[12]
Did
the Citizenship Judge commit a reviewable error?
IV. Standard
of review
[13]
The
applicable standard of review for a decision by a citizenship judge determining whether a person has met
the conditions
set out in paragraph 5(1)(c) of the Act is reasonableness (El-Kashef
v Canada (Minister of Citizenship and Immigration), 2012 FC 1151 at
paragraph 10; Canada (Minister of Citizenship and Immigration) v Raphaël,
2012 FC 1039 at paragraph 17; Pourzand v Canada (Minister of
Citizenship and Immigration),
2008 FC 395 at paragraph 19, Canada (Minister of Citizenship and Immigration)
v Saad,
2011 FC 1508 at paragraph 9).
[14]
Thus,
the Court must show deference and determine whether the findings of the citizenship
judge are justified, transparent and intelligible such that they fall “within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir v New Brunswick,
2008 SCC 9 at paragraph 47).
V. Positions
of the parties
A. Applicant’s
arguments
[15]
The
applicant submits that the Citizenship Judge placed an additional burden of
proof on him by applying both the physical presence and qualitative tests.
[16]
The
Citizenship Judge did not seem to question the evidence from the passport as
well as the immigration stamps on it that demonstrate the applicant’s physical
presence in Canada during the time required by the Act. She relied on the
applicant’s replies at his interview to find that he did not have a centralized mode of existence in Canada.
This type of analysis is unreasonable because it does not place any probative
value on the voluminous documentary evidence filed by the applicant in support
of his application. A serious analysis of the file shows that the applicant had
the required number of days, an essential condition for obtaining citizenship.
B. Respondent’s
arguments
[17]
The respondent submits the case law has clearly established
that the concept of “residence” may be interpreted three different ways
and that the citizenship judge
may choose which test he or she would like to use (Mizani
v Canada (Minister of Citizenship and Immigration), 2007 FC 698 at
paragraphs 10-13). The judge still has this
choice even when the applicant meets the quantitative test of physical
presence. If this were not the case, would it be
logical to give the citizenship
judge the choice of three tests?
[18]
In this case, the
Citizenship Judge chose to use the test set out in Koo
to determine whether the applicant “regularly, normally, or customarily” lived in Canada
or if he had “centralized his
mode of existence” there (Wu v Canada (Minister of
Citizenship), 2005 FC 240).
[19]
Essentially, the
Citizenship Judge’s finding is reasonable because it is based on the lack of
evidence of the extent of the applicant’s
physical presence in Canada before his absence,
on the fact that he has no family in Canada,
that the length of his physical absences were not quantifiable nor attributable
to a particular situation and that he did not demonstrate any significant
attachment to Canada.
VI. Analysis
[20]
For the
following reasons, I am of the opinion that when an applicant demonstrates,
based on reliable evidence, physical presence of at least 1,095 days in Canada during the
relevant period, the
Citizenship Judge cannot ignore
this evidence in order to rely on the qualitative test.
[21]
As Justice
Harrington stated in Canada (Minister of Citizenship and Immigration) v
Salim, 2010 FC 975 (Salim), over the years, three schools of thought
have developed in the case law regarding the residency obligation set out in
paragraph 5(1)(c) of the Act. The first one, which is quantitative,
argues that the wording of the Act is clear and deals only with physical
presence in Canada during three of the four years preceding the application (Re
Pourghasemi, [1993] FCJ 232). The second one states that the simple
intention to live in Canada is sufficient as long as some connection with
Canada is maintained, the “centralized mode of existence test” (Re Papadogiorgakis, [1978] 2 FC 208). The
third and last jurisprudential school, developed in Koo, is the most
common: according to this school, the citizenship judge analyzes six different factors to determine whether the applicant “regularly, normally, or customarily lives”
in Canada.
[22]
Justice Lufty
(the former chief justice) examined these three lines of jurisprudence in Lam
v Canada (Minister of Citizenship and Immigration), [1999] FCJ 410 (Lam).
He found that given the incertitude regarding the appropriate test, it was open to the citizenship judge to adopt either one of
the conflicting schools, specifying that “if the facts of the case were properly
applied to the principles of the chosen approach, the decision of the
citizenship judge would not be wrong”. (Lam at paragraph 14).
[23]
However, I would
stress the important nuance that Justice O’Reilly stated in Canada (Minister
of Citizenship and Immigration) v Nandre, 2003 FCT 650 at paragraph 21 (Nandre):
… I find that the
qualitative test set out in Papadogiorgakis and elaborated upon in Koo should be applied where an applicant
has not met the physical test. I
should add that I do not regard the qualitative test as one that is easy to
meet. A person's connection to Canada would have to be quite strong in order
for his or her absences to be considered periods of continuous residency in
Canada (Emphasis added).
[24]
In this respect,
in Elzubair v Canada (Minister of Citizenship and Immigration), 2010 FC
298, Justice Zinn explains the following at paragraphs 14 and 15:
When a citizenship judge finds that an applicant was physically present
in Canada for at least 1095 days, the required minimum period, then residence
is proven, and resort to the more contextual Koo test is unnecessary. The Koo test need only be relied on where the
applicant has been resident in Canada, but has been physically present in
Canada for less than 1095 days. In that situation, citizenship judges must
apply the Koo test to determine whether the
applicant was resident in Canada, even though not physically present here.
In this case, the Citizenship Judge
concluded that the applicant was physically present in Canada for 1148 days during
the relevant period, so it was unnecessary to assess her residency according to
the Koo test. Presumably the Citizenship Judge
first determined that the respondent had established residency in Canada,
although that is not stated in the reasons he provided.
[25]
Justice
Harrington fully endorsed these reasons in Salim. At paragraph 10, my
colleague stated “that
if the applicant has been physically present for at least 1095 days during the
relevant period, the residency test has been satisfied. If not, the Citizenship
Judge must go on to consider whether Canada is a place where the applicant
“regularly, normally or customarily lives” (see also paragraph 21 of Salim).
[26]
Indeed, it would
be illogical and contrary to the wording of the act to apply the qualitative
test when an applicant has established that he was present in Canada for at
least 1095 days during
the relevant period, since the Act
clearly states that a permanent resident must have “within the four years immediately preceding the date of his
or her application, accumulated at least three years of residence in Canada”.
[27]
Moreover, the
qualitative test in Koo was developed in order to allow an applicant who
does not meet the minimum residency requirements under paragraph 5(1)(c)
of the Act to obtain Canadian citizenship if that person can establish that he
or she “regularly,
normally, or customarily” lived in Canada despite several absences from the country.
[28]
In Martinez-Caro
v Canada (Minister of Citizenship and Immigration), 2011 FC 640, Justice
Rennie convincingly explained the plain interpretation that paragraph 5(1)(c)
of the Act must be given to find that it is based on the physical
presence test. This interpretation
“must be read … harmoniously with the
scheme of the Act, the object of the Act, and the intention of Parliament” (Re Rizzo & Rizzo Shoes Ltd, [1998] 1 RCS 27 at
paragraph 21). At paragraph 30, he explains:
In construing the statute, the fundamental question, therefore, is, why
did Parliament prescribe at
least three years of residency in the four years preceding the application?
The use of the words at least,
in the Act indicates that
1,095 days is the minimum number of days a given citizenship applicant must
accumulate. Parliament provided to would-be citizens the flexibility to accumulate 1,095 days over the course of four
years, or 1,460 days. Accumulation by
its ordinary meaning, imports a quantitative analysis. A test of accumulation is, quite separate
and distinct from tests of citizenship based on intention or where one centers ones
life. Intention cannot
be accumulated as the statute dictates nor does the concept of “centralizing
ones mode of life” fit well with the quantitative elements of the words at least.
[29]
There is no
doubt that Parliament’s use of the word “accumulate” requires a certain
quantitative analysis because it is clear that a person cannot “accumulate” an
intention to reside. The physical presence test complies
best with the Act (see also
Justice Mainville’s analysis in Canada (Minister of Citizenship and Immigration)
v Takla, 2009 FC 1120, 359 FTR 248 [Takla]).
[30]
However, at the
moment, the Federal Court has not reached a consensus on the correct
interpretation of paragraph 5(1)(c). Given this situation, and since the
majority of decisions support the qualitative approach developed in Koo,
I do not believe that the qualitative test should be completely set aside in
favour of the quantitative test. Although I recognize, like Justice Mainville
in Takla, that we must promote coherence among decisions of
administrative tribunals, I have no choice but to accept, like many other
judges, that when the physical presence test is not met, the citizenship judge may take a
qualitative approach. However, when reliable evidence demonstrates that the
applicant has accumulated the minimum number of days required under paragraph
5(1)(c), I do not believe that it is open to the citizenship judge to
use another approach.
[31]
In this case,
the Citizenship Judge ignored important evidence such as the applicant’s
passport and the immigration stamps that confirm his statement that was absent
only 79 days during the
relevant period. Even when applying the qualitative test from Koo,
she had to comment on this point to indicate whether the applicant was present
for an extended period before being absent. The Citizenship Judge merely noted
that he returned to Canada a few days before the interview and several of her
questions went beyond the
relevant period (2010, 2011,
2012). Moreover, other evidence corroborated his physical
presence in Canada, such as
the credit card statements (statements for 2006 to 2009), telephone and hydro
bills in his name, a lease, statements from room-mates, studies in Canada and
the diploma he received from Concordia University. The Citizenship Judge could not
set aside this voluminous documentary evidence without ruling on the applicant’s presence in Canada
during the period set out by the Act.
[32]
In short, I
believe that the Citizenship Judge erred in applying the approach from Koo when
there was overwhelming evidence in the record to conclude that the applicant
was physically present in Canada. This conclusion is unreasonable and allows
the Court to intervene.
[33]
For these
reasons, the appeal is allowed and the file is referred back to another
citizenship judge for redetermination in accordance with these reasons.
JUDGMENT
THE
COURT ORDERS AND ADJUDGES that the appeal be allowed. The file is
referred back to another citizenship judge for redetermination.
“Danièle
Tremblay-Lamer”
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