Date: 20130425
Docket: T-1781-12
Citation: 2013 FC 432
Vancouver, British Columbia, April 25, 2013
PRESENT: The Honourable Mr. Justice
Zinn
BETWEEN:
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
|
|
Applicant
|
|
and
|
|
|
CHING-TE CHANG
|
|
|
|
Respondent
|
|
|
|
|
REASONS
FOR JUDGMENT AND JUDGMENT
[1]
The Minister appeals the decision of Citizenship
Judge Ann Dillon granting citizenship to Mr. Chang. It is submitted that she
unreasonably determined that Mr. Chang met the residency requirement under paragraph
5(1)(c) of the Citizenship Act, RSC 1985, c C-29.
[2]
Mr. Chang, a citizen of Taiwan, entered Canada as a permanent resident on April 9, 1996 with his wife and three children.
His wife and children became Canadian citizens on January 24, 2000. He applied
for citizenship on August 26, 2008, and in the relevant four-year period he was
physically present in Canada for only 585 days and was absent from Canada for
875 days.
[3]
The Citizenship Judge applied Re Koo
(1992), 59 FTR 27 to determine, notwithstanding his absences from Canada, whether he had centralized his mode of existence in Canada. Notwithstanding his repeated
and significant absences when he returned to Taiwan to take care of his parents
and to seek medical attention, the Citizenship Judge found that he had.
[4]
It is well established that an analysis under Re
Koo has two aspects. First, one must determine whether the applicant,
prior to or at the beginning of the relevant four-year period, established
residence in Canada. It is only if that condition is met that one then goes to
the second aspect, determining whether that residency has been maintained
notwithstanding “temporary” absences by asking questions, including the
following:
(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 dependents (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 1095 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 temporary employment abroad, accompanying a spouse who has accepted
temporary employment abroad?
(6) What is
the quality of the connection with Canada: is it more substantial than that
which exists with any other country?
[5]
The Citizenship judge found that Mr. Chang had
“extensive” absences from Canada. She found that he had been absent from Canada:
a.
65% of the time prior to the relevant period;
b.
60% of the time in the relevant period; and
c.
72% of the time after the relevant period (to
January 31, 2012).
More
telling perhaps is to state the converse - the percentage of time that he was
actually present in Canada:
a.
35% of the time prior to the relevant period;
b.
40% of the time in the relevant period; and
c.
28% of the time after the relevant period (to
January 31, 2012).
[6]
The evidence upon which the Citizenship Judge
based her finding of residency, that does not depend on his wife and children
and their connections to Canada, was the following:
a.
He sold his business in Taiwan and was fully paid out in 1999 and brought that money to Canada;
b.
He set up a bank account in Canada in August 1995, prior to his arrival;
c.
He purchased a house in Vancouver in November
1995 for $1.45 million; and
d.
He regularly files Canadian income tax returns
and has done so since 1996.
[7]
On the other hand, the Citizenship Judge notes
that he remained in Canada after his arrival in 1996 only for 33 days a period
which “offered him minimal opportunity to nurture ties in Canada.” The Citizenship Judge goes on to say:
[W]here, as in
the present case, the applicant has been a permanent resident of Canada for a
lengthy time prior to the relevant period, it is logical and legitimate to
consider the cumulative time spent in Canada by the applicant prior to his
first absence in the relevant period, even where this time was accumulated
intermittently. The Applicant became a permanent resident 8 1/3 years before
the beginning of the relevant period. During that time he was in Canada 35% of the time, or about 1068 days. His pattern was to spend an average of 23 days
at a time in Canada, although he had stays of 47 and 80 days and also stayed
more than one month on 11 other occasions.
Given the fact that
the Applicant always lived in his own home with his immediate family and
established connections in his community (primarily with his church), based on
his cumulative presence in Canada, it is possible to conclude with confidence
that the Applicant did, in fact, have sufficient time in Canada to
establish his residence in, and nurture his ties to, Canada before
the relevant period.
[8]
In my view, the Citizenship Judge’s reasoning is
faulty. If Mr. Chang had not established Canadian residency in the first 33
days he remained in Canada then how, one must ask, does it get established over
the next 8 1/3 years when he is present an average of only 23 days at a time
and absent, by my calculation, an average of more than 65 days at a time? What
the Citizenship Judge fails to address is when and how Mr. Chang became
resident in Canada.
[9]
The how, one might think, is addressed in her
second paragraph reproduced above; however, the facts do not support that. She
says that he lived in his own house with his immediate family in Vancouver. However, the facts before the Judge were that he also lived in his own house
with his immediate family (his mother, until her death and his father) in Taiwan, and did so for greater cumulative periods of time. The Judge also states that Mr.
Chang “established connections in his [Canadian] community (primarily with his
church);” however, the evidence also shows that he had significant connections
in Taiwan that were maintained. Specifically, he has prolonged periods when he
visited his mother who was ill and he continues to visit his father who is
hospitalized, and he himself undergoes medical treatment and medical testing
for his various illnesses (cirrhosis, hepatitis C, and possibly cancer) when in
Taiwan.
[10]
In the circumstances, I find that it was not
reasonable to conclude that Mr. Chang ever established residency in Canada before the relevant period. The finding of the Citizenship Judge to the contrary is
not justified, transparent, or intelligible: Dunsmuir v New Brunswick,
2008 SCC 9.
[11]
Moreover, although the Citizenship Judge
examined each of the Koo factors, her analysis that these extensive and
repeated absences from Canada were merely temporary periods of absence from his
principal residence is unreasonable. The situation of Mr. Chang is very
similar to that of Ms. Willoughby in The Minister of Citizenship and
Immigration v Willoughby, 2012 FC 489, wherein at paras 8 to 10, Justice
Snider writes:
[T]he Judge has, in my view, misapprehended the nature of
Ms. Willoughby’s attachment to Canada and failed to carry out an analysis
of the evidence before him. Of primary concern, the Citizenship Judge did not
consider the nature of Ms. Willoughby’s absences from Canada. These absences were not temporary and were not going to be altered in the future.
Indeed, almost every fact before the Citizenship Judge
points away from a grant of Canadian citizenship. Not only had Ms. Willoughby
spent 745 days out of Canada, her pattern of absences was not about to change. Ms.
Willoughby maintains a dwelling in Australia that she uses during her visits
with her immediate family members (her daughters and grandchildren) in Australia. Even though Ms. Willoughby has a home and husband in Canada, her extensive
absences from Canada constitute “a structural mode of living abroad rather
than just a temporary situation” (Canada (Minister of Citizenship and
Immigration) v Camorlinga-Posch, 2009 FC 613 at para 50, 347 FTR 37
[emphasis omitted]). The most that can be said is that Ms. Willoughby has
established two homes – one in Canada and one in Australia. As pointed out by Justice
Martineau in Canada (Minister of Citizenship and Immigration) v Chen,
2004 FC 848 at para 10, [2004] FCJ No 1040:
When
absences are a regular pattern of life rather than a temporary phenomenon,
they will indicate a life split between two countries, rather than a
centralized mode of existence in Canada, as contemplated by the Act.
In my view, the decision of the Citizenship Judge is well
outside the range of possible acceptable outcomes and does not accord with the
principles of justification, transparency and intelligibility.
[12]
Here, as there, the evidence points not to
temporary absences from Canada where one has centralized one’s mode of
living, it points to a pattern of splitting one’s life between two countries
(with the greater portion spent elsewhere than in Canada), and that situation
is not sufficient to result in Canadian citizenship.
[13]
The parties agreed that the successful party
would be entitled to costs, fixed at $1,500.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that the appeal is allowed; the decision
of the Citizenship Judge is set aside; and the Minister is awarded costs
fixed at $1,500.
“Russel
W. Zinn”
Email this Content