Date: 20130529
Docket: T-253-12
Citation: 2013 FC 576
Ottawa, Ontario, May 29, 2013
PRESENT: THE CHIEF JUSTICE
BETWEEN:
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HONG YING HUANG
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Applicant
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and
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THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This case is yet another example of why something needs to be done
to address the unacceptable state of affairs concerning the test for citizenship
in this country.
[2]
The optimal resolution of this state of affairs would be for Parliament
to legislate a clearer test for citizenship under the Citizenship Act,
RSC 1985 c C-29. The Court has noted this on several occasions (see, for
example, Harry (Re) [1998] FCJ No 189, at paras 15-26; Imran v
Canada (Minister of Citizenship and Immigration),
2012 FC 756, at para 32 [Imran]; Hao v
Canada (Minister of Citizenship and Immigration),
2011 FC 46, at para 50 [Hao]; and Ghaedi v Canada (Minister of
Citizenship and Immigration), 2011 FC 85, at para 16). Another potential approach
would be for a citizenship judge to bring a reference to the Court under subsection
18.3(1) of the Federal Courts Act, RSC 1985, c F-7 [FC Act]. Among
other things, this would provide an opportunity for the issue to then be
brought before the Federal Court of Appeal, pursuant to paragraph 27(1)(d) of
the FC Act, to finally settle the divergence in this Court’s
jurisprudence that has persisted now for several decades.
1. Overview
[3]
The Applicant, Ms. Huang, is appealing an adverse determination by
a citizenship judge of her application for citizenship.
[4]
Ms. Huang submits that the citizenship judge erred by:
i.
breaching the principles of procedural fairness in handling her
case;
ii.
failing to properly assess her residence in Canada; and
iii. failing to properly assess her proficiency in English.
[5]
I disagree. For the reasons that follow, this appeal is dismissed.
2. Background
Facts
[6]
Ms. Huang is a citizen of China. She arrived in Canada on February 26, 2005, on an investor class visa.
[7]
After several trips back and forth between Canada and China, including two in which she gave birth to a child here, she applied for Canadian
citizenship on August 6, 2009.
[8]
Accordingly, the relevant period [Relevant Period] for the
purposes of calculating her residence was from August 6, 2005 to August 6,
2009.
3. Relevant
legislation
[9]
Subsection 5(1) of the Citizenship Act sets forth a
conjunctive test for citizenship. That provision states:
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.
[10]
Pursuant to subsection 14(6), and subject to section 20 (which is
not relevant to this case), no appeal lies from a decision of this Court on an
appeal from a decision of a citizenship judge.
4.
Standard of Review
[11]
The
issue that has been raised with respect to procedural fairness is reviewable on
a standard of correctness (Dunsmuir v New Brunswick, 2008 SCC 9, [2008]
1 SCR 190, at paras 55 and 79 [Dunsmuir];
Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009]
1 SCR 339, at para. 43).
[12]
The issue that has been raised with respect to the citizenship judge's
assessment of Ms. Huang’s residence in Canada has two prongs. Generally
speaking, the first prong concerns the legal test for citizenship, namely, whether
it was open to the citizenship judge to apply a particular test. That is a
question of law which concerns the interpretation of section 5 of the
Citizenship Act and this Court’s jurisprudence.
[13]
In interpreting the Citizenship Act, a citizenship judge is
interpreting either his or her “home statute” or a statute closely connected
with the judge’s function, and with which he or she can be presumed to have
particular familiarity. The Supreme Court of Canada’s jurisprudence teaches
that, absent exceptional circumstances, determinations reached by
administrative tribunals in this context should be presumed to be reviewable on
a standard of reasonableness (Alberta (Information and Privacy Commissioner) v
Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at para 34 [Alberta
Teachers]).
[14]
One
such exceptional circumstance is where the question of law is “of central
importance to the legal system as a whole and … outside the adjudicator’s
expertise” (Alberta Teachers, above, at paras 30, 34 and 43). In Martinez-Caro
v Canada (Minister of Citizenship and Immigration), 2011 FC 640, at para 38
[Martinez], Justice Rennie concluded, in obiter, that the
interpretation of section 5 of the Citizenship Act is such a question.
While I am very sympathetic to his reasoning, I am reluctant to embrace it
because the Supreme Court subsequently noted that it had yet to encounter the
type of exceptional situation involving statutory interpretation that would
merit review on a standard of correctness (Alberta Teachers, above, at
para 34; see also Hao, above, at para 39).
[15]
As
noted above, the issue of the legal test for
citizenship concerns not only the interpretation of paragraph 5(1)(c) of
the Citizenship Act, but also the interpretation of this Court’s extensive
jurisprudence on this issue.
[16]
The specific question of law that has been raised by Ms. Huang is
whether the Citizenship judge was entitled to apply the test articulated by
this Court in Koo (Re) [1993] 1 FC 286, at para 10 [Koo].
[17]
As discussed in part 5.B of these reasons below, the test set
forth in Koo, above, is one of three tests for citizenship that have long
been established in this Court’s jurisprudence. It is a qualitative test that
is similar to one of the other tests, and is very different from the third test
(the “physical presence” test), which is quantitative in nature.
[18]
These three tests continue to be embraced by this Court. The
ongoing existence of this divergence of views within the Court reflects a very
peculiar state of the law that developed and has persisted in part due to the
fact that, pursuant to subsection 14(6) of the Citizenship Act, no
appeal lies from a decision of this Court on an appeal from a decision of a citizenship
judge.
[19]
In Lam v Canada (Minister of Citizenship and Immigration),
[1999] FCJ No 410, at paras 11 and 32 [Lam], Justice Lutfy, as he then
was, took note of this “conflicting jurisprudence,” which essentially pertains
to the proper interpretation of paragraph 5(1)(c) of the Citizenship
Act. He observed, at paragraph 11, that “[t]he divergence of views, both in
this Court and among citizenship judges, has brought uncertainty to the
administration of justice in these matters.” However, given that legislation
which would have clarified the citizenship test was then pending, he concluded
that, during the period of transition, deference should be accorded to a citizenship
judge’s choice of which of the three tests to apply, provided that he or she
demonstrates an understanding of the case law and properly decides that the
facts meet the test that has been applied (Lam, above, at para 33).
[20]
A decade later, in Takla v Canada (Minister of Citizenship and
Immigration), 2009 FC 1120 [Takla], at paragraph 44, Justice
Mainville observed that over the course of the intervening period the approach
adopted by Justice Lutfy had been largely followed. However, after noting that
the decision in Lam had been “rendered in a situation that was perceived
to be temporary given the statutory amendments that were under consideration at
that time,” he concluded that the time had come to settle upon a single
interpretation of paragraph 5(1)(c) if the Citizenship Act. To
this end, and after observing that the test set forth in Koo had become
the dominant test in this Court’s jurisprudence, he concluded that this test
should henceforth be the sole test to be applied under paragraph 5(1)(c).
He reached that conclusion notwithstanding his view that the “physical presence
test,” discussed below, appears to have been contemplated by the clear wording
of that provision.
[21]
As it has turned out, Justice Mainville’s laudable “attempt to
standardize the applicable law” (Takla, above at para 47), has not been
successful. In short, while his view that the Koo test should be the
sole standard has been endorsed in several subsequent decisions of this Court
(see for example, the cases listed in Hao, above, at para 42, and in El
Khader v Canada (Minister of Citizenship and Immigration), 2011 FC
328, at para 17 [El Khader]; see also Imran, above, at
para 32), a citizenship judge’s discretion to apply one of the other recognized
tests has been upheld in several other decisions (see, for example Dachan v
Canada (Minister of Citizenship and Immigration), 2010 FC 538, at para 19; Sarvarian
v Canada (Minister of Citizenship and Immigration), 2010 FC 1117, at
paras 8-9; Shubeilat v Canada (Minister of Citizenship and
Immigration), 2010 FC 1260, at paras 30-37 [Shubeilat]; Cardin
v Canada (Minister of Citizenship and Immigration), 2011 FC 29, at para
18; Hao, above, at paras 48-50; El Khader, above, at para 23; Canada
(Minister of Citizenship and Immigration) v Saad, 2011 FC 1508, at para 14
[Saad]; Murphy v Canada (Minister of Citizenship and Immigration),
2011 FC 482, at paras 6-8; Alinaghizadeh v Canada (Minister of Citizenship
and Immigration), 2011 FC 332, at para 28; Canada
(Minister of Citizenship and Immigration) v Abdallah,
2012 FC 985, at para 14 [Abdallah]; Zhou
v Canada (Minister of Citizenship and Immigration),
2013 FC 19, at para 30 [Zhou]).
[22]
Indeed, this Court has held in a number of other decisions that
the “physical presence” test, discussed below, is the correct test to apply (Martinez,
above, at para 52; Al Khoury c Canada (Ministre
de la Citoyenneté) 2012 CF 536, at para 27; Canada (Minister of Citizenship and
Immigration) v Dabbous, 2012 FC 1359, at para 12; Ghosh v Canada
(Minister of Citizenship and Immigration), 2013 FC 282, at para 25).
[23]
In other decisions, the Court appears to have adopted a hybrid
approach, which would require a citizenship judge to proceed to conduct a
qualitative assessment, as contemplated by the Koo test, even if the
“physical presence” test has been selected by the citizenship judge and failed by
the applicant (Canada (Minister of Citizenship and Immigration) v Elzubair,
2010 FC 298, at para 14 [Elzubair]; Salim
v Canada (Minister of Citizenship and Immigration),
2010 FC 975, at para 10; Canada (Minister of Citizenship and Immigration) v
Nandre, 2003 FCT 650, at para 21).
[24]
What is clear from the foregoing is that the jurisprudence
pertaining to the test(s) for citizenship remains divided and somewhat unsettled.
[25]
In this context, it is particularly appropriate that deference be
accorded to a citizenship judge’s decision to apply any of the three tests that
have a long and rich heritage in this Court’s jurisprudence.
[26]
This conclusion is consistent with the dominant view in this Court
that the standard to be applied in reviewing a citizenship judge’s decision reasonableness
(Saad, above, at para 9; Hao, above, at para 13; Abdallah,
above, at para 8; Zhou, above, at para 13).
[27]
The second prong of the issue that has been raised regarding the citizenship
judge’s assessment of Ms. Huang’s application for citizenship concerns the
application of the legal test for citizenship to the facts of this case. That
is a question of mixed fact and law that is also reviewable on a standard of
reasonableness.
[28]
The issue that has been raised with respect to whether the Citizenship
judge erred by failing to properly assess her
proficiency in English is also a question of mixed fact and law that is subject
to review on a standard of reasonableness.
5. Analysis
A. Did
the citizenship judge breach the principles of procedural fairness in handling
Ms. Huang’s case?
[29]
Ms. Huang submits that her procedural fairness rights were
breached because she was not given adequate notice of her interview with the Citizenship
judge, and because the interview notice did not advise her of the purpose of
the interview. I disagree.
[30]
In a letter dated October 25, 2010, Ms. Huang was advised that the
citizenship judge required further information and that further processing of
her application could not continue until she supplied that information.
[31]
Then, on February 21, 2011, Ms. Huang was advised by way of a form
letter that the information she had supplied had been reviewed and that the citizenship
judge requested a hearing to finalize the processing of her application. That
letter also advised that her appointment with the Citizenship judge was “for
residency assessment.”
[32]
On April 4, 2011, Ms. Huang received a Notice to Appear from the
Citizenship Office in Vancouver, requesting her to appear for an interview the
following day. Among other things, that notice stated that she would “be asked
questions to determine if [she had] an adequate knowledge of English or French
and an adequate knowledge of Canada.” In addition, the notice stated: “If you
do not attend this hearing, at the above date, time and place, you will receive
a second and final notice.”
[33]
In my view, the Notice to Appear sent on April 4, 2011 must be
viewed together with the form letter that was sent on February 21, 2011. When
those two written communications are viewed together, it is clear that Ms.
Huang was given more than adequate notice to appear for her interview. She was
also clearly informed that residency and language issues would be addressed
during that interview. With this in mind, and given that she was informed that
she would be given another opportunity to appear if she did not appear for her
scheduled interview on April 5, 2011, her procedural fairness rights were not
breached by virtue of the amount of notice she was given or the topics that
were covered in the interview.
[34]
My conclusion in this regard is reinforced by the fact that, following
her interview, Ms. Huang was provided an opportunity to supply further
information. In addition, she does not appear to have objected, at the time of
her interview, to the short notice that had been given in the Notice to Appear,
and she was accompanied by an interpreter.
[35]
Ms. Huang also asserts that the citizenship judge did not conduct
herself in an objective and independent manner. This allegation appears to rest
on the fact that the citizenship judge re-tested Ms. Huang’s knowledge of
English and knowledge of Canada during the interview, notwithstanding that she
had passed a prior written test. Given the nature of the written notices,
summarized above, that she received, I am satisfied that the citizenship judge’s
decision to re-test Ms. Huang on these matters during the interview did not
breach her procedural fairness rights.
B. Did the Citizenship judge fail to properly assess Ms.
Huang’s residence in Canada?
i. The test for citizenship that was applied
[36]
Ms. Huang submits that the citizenship judge erred by applying the
test articulated in Koo, above, rather than the “physical presence” test.
I disagree.
[37]
As noted above, the jurisprudence of this Court has established
three tests for citizenship. These are generally known as the “centralized mode
of living” test, the Koo test (which focuses upon where the applicant “regularly,
normally or customarily lives”) and the “physical presence” test.
[38]
It is now well established that before any of these tests can be
applied, an applicant for citizenship must establish that he or she is physically
resident in Canada (Takla, above, at para 50; Martinez, above, at
para 9; Hao, above, at para 24; Elzubair, above, at para 13).
[39]
The “centralized mode of living test” was articulated by Associate
Chief Justice Thurlow, as he then was, in Papadogiorgakis (Re), [1978] 2
FC 208, at paras 16-17 [Papadogiorgakis]. This test is a qualitative
test that focuses upon “the degree to which a person in mind and fact settles
into or maintains or centralizes his ordinary mode of living with its
accessories in social relations, interests and conveniences at or in the place
in question,” even though the person may have lengthy absences from Canada.
[40]
The “regularly, normally or customarily lives” test was
established by Justice Reed, in Koo, above, at para 10, who identified
six factors to guide the assessment of whether this test has been met in any
given case. Those factors will be discussed in the next section of these
reasons below.
[41]
The “physical presence” test is commonly attributed to Justice
Muldoon, who stated in Pourghasemi (Re), [1993] FCJ No 232, at paras 3-9
[Pourghasemi], that paragraph 5(1)(c) of the Citizenship Act requires,
among other things, that an applicant for citizenship be physically present for
a minimum of three years (1,095 days) in the four year period immediately
preceding his application.
[42]
In Lam, above, Justice Lutfy, as he then was, held that “it
is open to the citizenship judge to adopt either one of the conflicting schools
in this Court and, if the facts of the case were properly applied to the
principles of the chose approach, the decision of the citizenship judge would
not be wrong” (Lam, above, at para 14).
[43]
As it turned out, the proposed legislation discussed in Lam
was not enacted. Nevertheless, in my view, a reasonable interpretation of this
Court’s jurisprudence is that the law as articulated by Justice Lutfy has not
changed with respect to a citizenship judge’s ability to apply any one of the
three tests for citizenship described above (see the second line of cases
referred to at paragraph 21 above). I have reached this conclusion
notwithstanding the fact that I personally find the reasoning in Martinez, above, and its progeny to be compelling. As noted at paragraph 22 above, that
line of jurisprudence holds that the physical presence test is the correct test
to apply, and is indeed the only one contemplated by paragraph 5(1)(c)
of the Citizenship Act.
[44]
However, with respect to those who hold a contrary view, I do not
believe that this Court’s jurisprudence, on balance, supports an approach that
would effectively require a blending of two or more of the three
aforementioned tests (Mizani v Canada (Minister of Citizenship and
Immigration), 2007 FC 698, at para 13, Shubeilat, above, at para 31).
For example, if a citizenship judge decides to apply the physical presence test
and concludes that the applicant in question did not meet that test, it would
be inconsistent with a fair reading of the main branches of this Court’s
jurisprudence (namely, the approaches set forth in Papadogiorgakis, Pourghasemi,
Koo and Lam, respectively, and in their respective progenies) for
the citizenship judge to be required to then apply the Koo test
or the “centralized mode of living test.” This would effectively require the citizenship
judge to give the applicant “two kicks at the can.” In the present state of the
Court’s jurisprudence, it would be reasonably open to the citizenship judge to
terminate the assessment under paragraph 5(1)(c) of the Citizenship
Act upon concluding that the physical presence test had not been met by the
applicant.
[45]
In this case, that is not what happened. The citizenship judge appears
to have decided to not apply the physical presence test, after concluding that
she was not satisfied that the information provided by Ms. Huang accurately
reflected the number of days that she was, in fact, physically present in
Canada. She therefore decided to apply the Koo test. Under the
longstanding jurisprudence of this Court, she was at liberty to do so. Stated
differently, it was reasonably open for her to do so. This was well “within the range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir, above,
at para 47). This aspect of the decision under review was also reasonably
justified, transparent and intelligible.
[46]
Ms. Huang also takes issue with the citizenship judge’s use of the
words “in fact,” and asserts that this imposed a higher threshold than a
“balance of probabilities.” I disagree.
[47]
The citizenship judge explicitly stated that she was “not
satisfied, on a balance of probabilities” that the information supplied by Ms.
Huang accurately reflected the number of days that she was, in fact, physically
present in Canada. Based on my reading of the decision as a whole, I am
satisfied that she did not apply a standard different from the balance of
probabilities standard she stated she had applied.
i.
The Citizenship judge’s application of the Koo test to the facts
in the record
[48]
Ms. Huang submits that the citizenship judge misapprehended
several aspects of the evidentiary record and, that as a result of those
errors, the conclusion that she had not satisfied the test for citizenship was
unreasonable. I disagree.
[49]
In Koo, above, Justice Reed identified the following six
questions to be addressed in determining whether an applicant for citizenship
“regularly, normally or customarily” lives in Canada:
i.
Was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application
for citizenship?
ii.
Where are the applicant’s immediate family and dependents (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 absences – if an applicant is
only a few days short of the 1,095-day total it is easier to find deemed
residence than if those absences are extensive?
v.
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 employment abroad?
vi.
What is the quality of the connection with Canada: is it more substantial than that which exists with any other country?
[50]
With respect to the first factor, the citizenship judge concluded
that Ms. Huang had only been in Canada for a total of 99 days prior to the
Relevant Period, and that this did not constitute a “long period” as
contemplated by Koo, above. Ms. Huang did not take issue with this
finding.
[51]
With respect to the second factor, the citizenship judge concluded
that the applicant lives with her husband, daughter and two sons in China, where her parents, her two sisters and her extended family also live. The citizenship
judge also noted that Ms. Huang has no relatives living in Canada. Ms. Huang did not take issue with this finding.
[52]
Turning to the third factor, the citizenship judge concluded that
Ms. Huang’s travel history between China and Canada reflects that her home is
in China, and that she simply visited Canada for the purpose of giving birth to
two of her children here, and to give her eldest and middle children the
opportunity to attend school and preschool here. In my view, this conclusion is
entirely consistent with the facts in the record.
[53]
In reaching that conclusion, the citizenship judge identified a
number of inconsistencies in the materials that had been submitted by Ms. Huang
in support of her application. For example, in her Residence Questionnaire, she
indicated that she resided in Canada with her husband from February 2005 until
November 21, 2010, and that, from May 2006 to the end of that period she lived
at a particular address in Richmond, British Columbia from May 2006. However,
during the hearing, she acknowledged that her husband returned to live in China in 2005, that he only returned for a few months each year to live with her and that
she returned to live with him on August 21, 2009.
[54]
In the course of reaching her conclusion with respect to this
third Koo factor, the citizenship judge also questioned some of the
documentation that Ms. Huang had provided to support her position that she was
present in Canada between April 8, 2006 and June 6, 2006. Ms. Huang asserts
that this aspect of the citizenship judge’s analysis was unreasonable. I will
deal with Ms. Huang’s submissions in this regard below, as this aspect of the citizenship
judge’s analysis overlaps with her assessment of the fourth Koo factor.
[55]
In assessing the fourth Koo factor, the citizenship judge
concluded that Ms. Huang fell 54 days short of the 1,095 days specified in
paragraph 5(1)(c) of the Citizenship Act. She reached this conclusion after
stating that she had not been convinced that Ms. Huang had been present in Canada for the 59 day period between April 8, 2006 and June 7, 2006 [Disputed Period].
[56]
As noted above, Ms. Huang asserts that this finding was not
reasonable. In particular, Ms. Huang states that, based on the fact that her
passport was stamped with an exit stamp from China on April 8, 2006 and did not
contain entry stamps or visas from other countries during that period
immediately following that date, the only reasonable conclusion available to
the citizenship judge was that she entered Canada on that date and remained
there until her next declared trip. I disagree.
[57]
Ms. Huang’s passport reflects a very active travel history,
including to Australia, Malaysia, and the United States. Among her declared
absences from Canada during the Relevant Period, four were to the United States (Certified Tribunal Record, at p 128). Particularly in this context, it was
not unreasonable for the citizenship judge to fail to infer that Ms. Huang was
in Canada during the Disputed Period, simply because she was not in China. The burden was on Ms. Huang’s to establish on a balance of probabilities the number
of days that she was in Canada. Contrary to Ms. Huang’s position, the exit
stamp from China in her passport is not “reliable proof as far as her travel in
and out of Canada is concerned.”
[58]
Ms. Huang also takes issue with the citizenship judge’s statement
that “[t]here is no supporting evidence or documentation to show that the
applicant was resident in Canada between August 6, 2005 and June 7, 2006.”
[59]
After making that statement, the citizenship judge acknowledged
that Ms. Huang came to Canada for 49 days between October 22, 2005 and December
10, 2005. Ms. Huang therefore only takes issue with respect to the period April
8, 2006 and June 7, 2006.
[60]
Based on my reading of this part of the citizenship judge’s
decision as a whole, I am satisfied that what the citizenship judge meant is
that there was no supporting evidence or documentation to persuasively
establish that Ms. Huang was in Canada during the Disputed Period. The citizenship
judge appropriately discussed the principal documentation that Ms. Huang relies
upon to establish her presence in Canada during that period. However, the citizenship
judge reasonably concluded that it did not establish such presence.
[61]
The documentation in question included information with respect to
credit card activity that reflected transactions to purchase a car and car
insurance on April 16, 2006 and April 30, 2006. That information did not
reflect any other transactions in Canada until June 7, 2006, whereas other
information that had been provided reflected significant activity in Canada on Ms. Huang’s MasterCard during the aforementioned 49 day period that she was in Canada in late 2005.
[62]
Other documentation included a car purchase document that the citizenship
judge found to be very faded, difficult to read, and to contain unfilled
sections, including uncompleted signature and identification verification
sections. The citizenship judge observed that someone else could well have
purchased the vehicle in Canada on Ms. Huang’s behalf.
[63]
In my view, it was not unreasonable for the citizenship judge to
conclude that the foregoing documentation did not establish that Ms. Huang was
in Canada during the Disputed Period, particularly given the previously
mentioned inconsistencies in her evidence and the citizenship judge’s
observations that (i) Ms. Huang did not provide any leases or rental agreements
for any accommodation or residence during the Disputed Period, and (ii) a
letter from her doctor states that there were no visits between March 26, 2005
and June 20, 2006, when she returned, three months into her pregnancy with her
third child.
[64]
Ms. Huang asserts that she provided other documentation evidencing
her presence in Canada during the Disputed Period, including (i) an invoice
from BC Hydro evidencing a “transfer” payment in the amount of $3.41; (ii) an
invoice from Shaw Cable; and (iii) statements from the Bank of Montreal.
However, as with the other documentation discussed above, this documentation
does not demonstrate on its face that Ms. Huang was present in Canada during the Disputed Period, and it was not unreasonable for the citizenship judge to
fail to explicitly address this documentation. Indeed, the invoice from BC Hydro
reflects a very low electricity usage charge of only $3.75 for the period May
16, 2006 to June 13, 2006; the invoice from Shaw Cable does not evidence any
previous charges or outstanding balance; and the transactions identified in the
Bank of Montreal statement consist of transfers, online transfers,
pre-authorized payments, cheques, incoming wire payments, debit memos and error
corrections. None of this persuasively demonstrates that Ms. Huang was
physically present in Canada. This was all activity that may well have been
conducted from abroad (Eltom v Canada (Minister of Citizenship and
Immigration), 2005 FC 1555, at para 25; Hernando Paez v Canada (Minister
of Citizenship and Immigration), 2008 FC 204, at para 18; Canada
(Minister of Citizenship and Immigration) v Carmolinga-Posch, 2009
FC 613, at paras 23-26, 80; Canada (Minister of Citizenship and
Immigration) v Zhang, 2011 FC 844, at para 18).
[65]
I acknowledge that the citizenship judge may have erred when she
observed that certain credit card transactions reflecting activity in Canada in July 2007 were inconsistent with a statement allegedly made by Ms. Huang that she was in China at that time. However, this error is not material, as it did not relate to the Disputed
Period, and Ms. Huang appears to have been given credit for being in Canada at that time. Likewise, I do not consider the citizenship judge’s apparent error
regarding a credit card transaction that she believed reflected a transaction
in China on May 28, 2006 to be material, because it does not appear to have
played a material role in the conclusion that Ms. Huang had not established on
a balance of probabilities that she was physically present during the Disputed
Period.
[66]
Turning to the fifth Koo factor, the citizenship judge
concluded that Ms. Huang’s absences from Canada were not due to any temporary
situation, but rather involved returns to China to be with her husband and to
spend time with her immediate and extended family. Ms. Huang did not contest
this finding.
[67]
Finally, with respect to the sixth Koo factor, the citizenship
judge concluded it was “evident that [Ms. Huang’s] ties to China, the place
where she was born, raised, educated, married, where her entire family resides,
and where she has returned to live, are significantly stronger than her ties to
Canada.” Once again, Ms. Huang did not contest this finding.
[68]
Based on all of the foregoing, the citizenship judge concluded
that Ms. Huang did not satisfy the Koo test for citizenship.
[69]
In my view, that conclusion was well “within the range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir, above,
at para 47). It was also reasonably justified, transparent and
intelligible.
C. Did
the Citizenship judge fail to properly assess Ms. Huang’s proficiency in
English?
[70]
Given my responses to the first two of the three principle issues
raised in this application, and given that the test for citizenship set forth
in subsection 5(1) of the Citizenship Act is conjunctive, it is
unnecessary for me to address this third issue.
Conclusion
[71]
For the reasons set forth above, this appeal is dismissed.
[72]
The Respondent has sought its costs in this proceeding. However, I
am not satisfied that facts in this case are sufficiently exceptional to
warrant the exercise of my discretion to grant this request (McIlroy v Canada (Minister of Citizenship and Immigration), 2010 FC 685, at para 34).
JUDGMENT
THIS
COURT DECLARES, ADJUDGES AND ORDERS that: this appeal is
dismissed.
"Paul S.
Crampton"
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