Federal Court Decisions

Date: 20011109

Docket: T-213-01

Neutral citation: 2001 FCT 1229

BETWEEN:

YAO SUNG CHEN

Applicant

and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

                                                              REASONS FOR ORDER

NADON J.

[1]              This is an appeal by the Applicant from a decision of Citizenship Judge Stuart Hodgson, dated December 12, 2000, pursuant to which his application for citizenship was denied.

[2]              The relevant facts can be summarized as follows. The Applicant, a citizen of Taiwan, arrived in Canada on May 31, 1996 as a landed immigrant. On January 11, 2000 he applied for Canadian citizenship. During the period between May 31, 1996 and January 11, 2000, the Applicant was present in Canada for 643 days and absent for 677 days, leaving him short by 452 days of the required 1,095 days under paragraph 5(1)(c) of the Citizenship Act (the "Act")which provides:

[3]              More particularly, during the relevant period, the Applicant spent 641 days in Taipei, 5 days in Florida, 5 days in Los Angelas, 3 days in Singapore and 23 days in Alaska, for a total of 677 days outside Canada. At pages 1,2 and 3 of his letter of refusal dated December 12, 2000, the Citizenship Judge explains his refusal, in part, in the following terms:

In this regard, I note that you arrived in Canada on May 31, 1996 as a landed immigrant.

On June 12, 1996 you left Canada for 10 days and you have remained outside of Canada until the present time with the exception of short visits to Canada.

Until the date of an application for Citizenship on January 11, 2000 you were absent for approximately 677 days leaving you a shortage of 452 days of the required 1095 days. A review of the facts of your case and the relevant case law has led me to conclude that you did not maintain sufficient ties with Canada during your absences to have those absences count as periods of residence under the Act. I am supported in this conclusion by the case law, such as in the Federal Court of Canada decision of the Ronaasen Case [where] Mr. Justice Mahoney states:

"While the authorities are clear that a person does not have to remain physically in Canada to maintain a Canadian residence, they are also clear that the intention to return to Canada, however firm, is not enough to establish ongoing residence. The person must also have maintained sufficient indicia of Canadian residence that it may be inferred in the circumstances that residence has been maintained and not merely intended to be resumed."

In the [Pourghasemi] federal appeal case, Mr. Justice F.C. Muldoon states:

That provision exacts that the applicant must have "within the four years immediately preceding the date of his application, accumulated at least three years of residence in Canada ... ".__Parliament introduces an element of emphasis into the statutory text by enacting "... at least three years of residence in Canada ... ".__Those emphasized words are unnecessary, except for emphasis.__The appellant accumulated less than one year, before the date of his application for citizenship.__In drawing a purposive interpretation of the statutory language it should be asked: Why did Parliament prescribe at least 3 years of Canadian residence in the 4 years immediately before applying for citizenship?

It is clear that the purpose of paragraph 5(1)(c) is to insure that everyone who is granted precious Canadian citizenship has become, or at least has been compulsorily presented with the everyday opportunity to become, "Canadianized".

The statute does not direct the Court to evince sentimentality in order to evade, or to defy the statutory requirement for residence. Perhaps because of misunderstanding to this Court's previous jurisprudence, applicants seem to be advised to keep Canadian bank accounts, magazine subscriptions, medicare cards, lodgings, furniture, other property and good intentions to meet the statutory criterion, in a word, everything except really residing among Canadians in Canada for three out of the previous four years, as Parliament prescribes.

Pursuant to the provisions of subsection 14(3) of the Citizenship Act, this letter constitutes formal notice of my non-approval of your application.

[4]              The Applicant challenges Judge Hodgson's decision on three grounds. Firstly, the Applicant submits that the Citizenship Judge erred in his interpretation of paragraph 5(1)(c) of the Act. Secondly, he submits that the Citizenship Judge erred in failing to provide reasons for his decision. Thirdly, the Applicant submits that the Citizenship Judge arrived at his decision in ignorance of relevant evidence.

[5]              With respect to the challenge based on the failure to give reasons, this submission cannot possibly succeed. It cannot be disputed, in my view, that the Citizenship Judge's letter of December 12, 2000 meets the requirements of subsection 14(3) of the Act.

[6]              A second ground of attack in these proceedings, is that the Citizenship Judge ignored relevant evidence. In my view, the Citizenship Judge did not ignore relevant evidence in reaching his conclusion that the Applicant's application should be denied. The Citizenship Judge considered the evidence before him and, based on that evidence, concluded that the Applicant had not met the residency requirements of paragraph 5(1)(c) of the Act. The true issue, in my view, is whether the Citizenship Judge properly interpreted paragraph 5(1)(c) in the light of the relevant facts. I, therefore, turn to that issue. For the reasons that follow, I am of the view that the Citizenship Judge made no error in that regard.

[7]              It is true, as counsel for the Applicant submits, that Muldoon J.'s decision in Re Pourghasemi, (1993) 19 Imm.L.R. (2d) 259 (F.C.T.D.) is at odds with the decisions of Thurlow J. (as he then was) in Re Papadogiorgakis, [1978] 2 F.C. 208 and of Reed J. in Re Koo, [1993] 1 F.C. 286. Counsel for the Applicant submits that the proper test is the one set out in Re Papadogiorgakis and Re Koo and that consequently that test is to be preferred over the test enunciated by Muldoon J. in Re Pourghasemi, which the Citizenship Judge appears to have adopted in concluding against the Applicant.

[8]              I accept counsel's proposition that the issue relating to the interpretation of paragraph 5(1)(c) of the Act is a question of law and, hence, the standard of review is that of correctness.

[9]              Counsel for the Applicant submits that although the Citizenship Judge intended to apply the test set out in Re: Papadogiorgakis and Re: Koo, he nonetheless applied the test enunciated by Muldoon J. in Pourghasemi. At paragraphs 27, 28 and 29 of his Memorandum of Law and Argument, counsel for the Applicant makes the following submissions:

27.         The Applicant submits that by referring to Re: Pourghasemi, the Citizenship Judge created a doubt as to whether he was applying the approach which he described in the earlier paragraphs of his reasons, in which absence from Canada can count towards the period of residence, or whether he was applying the test set out in Re: Pourghasemi in which physical presence in Canada for 1,095 days is required and periods of absence in excess of the 365-day allowance provided for in the Act are fatal to the application. There are no additional notes of the Citizenship Judge in the Notice to the Minister to assist this Honourable Court in making this determination.

28.         The task of this Honourable Court is made even more difficult because of the absence of sufficient findings of fact by the Citizenship Judge to support the decision to refuse the Applicant's application for citizenship.

29.         Accordingly, the Applicant submits that for both of the above reasons, the Citizenship Judge failed to comply with the requirements of subsection 14(3) of the Act in failing to clearly set out for the benefit of the Applicant and thus erred in law.

[10]          What counsel for the Applicant argued at the hearing was that it was open to the Citizenship Judge to choose and, hence, decide the case on the basis of either the Pourghasemi test or the Papadogiorgakis test as modified by Koo. As the Citizenship Judge failed to clearly choose one of the two tests, he committed a reviewable error. Consequently, according to the Applicant, I am perfectly entitled to intervene. Counsel further submits that I should allow the Applicant's judicial review application and grant him Canadian citizenship.

[11]          The Applicant's above submission stems from Lutfy A.C.J.'s decision in Lam v. M.C.I., T-1310-98 dated March 26,1999 where the Associate Chief Justice stated his view that a citizenship judge could apply the law that he or she felt was most appropriate, as long as he properly applied the correct and relevant principles to the facts of the case before it. After noting the conflicting views regarding the interpretation of subsection 5(1)(c) of the Act, the Associate Chief Justice made the following comments at paragraph 14 of his reasons:

            Subsection 14(6) of the Act is intended to preclude any appeal from the decision of the Federal Court - Trial Division. As a result, the Court of Appeal has not been called upon to resolve this conflicting case law. Judges of the Trial Division have not been fettered in expressing their own view. In my opinion, 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 chosen approach, the decision of the citizenship judge would not be wrong. Until now, Federal Court trial judges, presiding over the de novo hearings, have generally felt free to substitute their view of the residency requirement for the one expressed in the decision under appeal. The divergence of views, both in this Court and among citizenship judges, has brought uncertainty to the administration of justice in these matters.

[Underlining added]

[12]      The Associate Chief Justice's rationale for the above proposition can be found at paragraph 33 of his reasons where, in dealing with the appropriate standard of review, he states:

Justice and fairness, both for the citizenship applicants and the Minister, require some continuity with respect to the standard of review while the current Act is still in force and despite the end of the de novo trials. The appropriate standard, in these circumstances, is one close to the correctness end of the spectrum. However, where citizenship judges, in clear reasons which demonstrate an understanding of the case law, properly decide that the facts satisfy their view of the statutory test in paragraph 5(1)(c), the reviewing judges ought not to substitute arbitrarily their different opinion of the residency requirement. It is to this extent that some deference is owed to the special knowledge and experience of the citizenship judge during this period of transition.

[12]          With respect, I cannot agree with the view stated by the Associate Chief Justice in Lam. In my view, there cannot be two correct interpretations of paragraph 5(1)(c). The fact that decisions of the Trial Division cannot be appealed to the Court of Appeal is regrettable but cannot, in my view, give rise to a hybrid interpretation of the statute. In my respectful view, justice and fairness will not be achieved by the approach which the Associate Chief Justice suggests. His approach will simply create another form of injustice in that two persons applying for citizenship before different citizenship judges will not get the same treatment. Let us assume, as an example, that the fact in the two applications for citizenship are identical, i.e. both applicants have spent a considerable amount of time outside Canada travelling on business. In the first case,

if the citizenship judge follows the Papadogiorgakis and Koo test, he might well say yes to the application. However, in the second case, if the citizenship judge believes that the Pourghasemi approach is the correct one, he will refuse the application. No one would argue that different results for these applicants, constitutes "justice and fairness". The scenario that I have outlined is no different from what presently happens by reason of the conflicting views regarding the interpretation of paragraph 5(1)(c) of the Act. As I have already said, the situation is most regrettable but only Parliament can provide a remedy for the situation.

[13]          If Muldoon J.'s interpretation of paragraph 5(1)(c) of the Act in Pourghasemi is correct, then that is the law which citizenship judges must apply. They must apply their findings of fact in light of that legal interpretation. Consequently, pursuant to that view of the law, an applicant who does not spend three years in Canada, in the four years immediately preceding the day of his or her application for citizenship, cannot be granted citizenship. However, under the Papadogiorgakis and Koo test, an applicant may succeed even if he or she has not spent the required three years in Canada.

[14]          Unfortunately, citizenship judges are caught between a hard place and a rock. Citizenship judges, in reaching a decision, will follow one of the two tests. If the appeal of their decision is heard by a judge of the Trial Division who follows the "other" test, i.e. the test which the citizenship judge did not follow, the decision will likely be overturned. That, as I have already indicated, is a regrettable state of affairs but it cannot be helped save by a clarification by Parliament.

[15]          Even if I were to accept counsel for the Applicant's submission that the Citizenship Judge made an error in law by confusing the two tests, the result which he seeks cannot be obtained. If there is an error of law, I am therefore entitled to intervene and decide the question of law. Since it is my view that the correct test in the one enunciated by Muldoon J. in Pourghasemi, the Applicant cannot succeed.

[16]          Even if I were to accept that the correct test is the one stated in Papadogiorgakis as modified by Koo, I nevertheless come to the same conclusion. In Re Koo, Madam Justice Reed, after a thorough review of the relevant jurisprudence, reformulated the relevant test in the following terms:

10          The conclusion I draw from the jurisprudence is that the test is whether it can be said that Canada is the place where the applicant "regularly, normally or customarily lives". Another formulation of the same test is whether Canada is the country in which he or she has centralized his or her mode of existence. Questions that can be asked which assist in such a determination are:

(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 1,095-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 employment abroad?

(6)         what is the quality of the connection with Canada: is it more substantial than that which exists with any other country?

[17]          In my view, the Applicant fails in regard to questions (1), (3), (4), (5) and (6). The record before me is clear that the Applicant's actual physical presence in Canada is one of "merely visiting the country". It is also clear, in my view, that the Applicant's connection is more substantial with Taiwan than it is with Canada.

[18]          Consequently, whether I apply one or the other of the tests, the result is the same. As I indicated earlier, the Applicant spent 677 days outside Canada, of which 641 were spent in Taiwan. Although I am sympathetic to the Applicant's plight, I cannot allow his appeal since he does not meet the residence criteria of paragraph 5(1)(c).

[19]          For these reasons, this judicial review application will be dismissed.

(Sgd.) "Marc Nadon"                           Judge

Vancouver, British Columbia

November 9, 2001

                                                   FEDERAL COURT OF CANADA

                                                                    TRIAL DIVISION

                             NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                            T-213-01

STYLE OF CAUSE:                        Yao Sung Chen v. The Minister of Citizenship and Immigration

PLACE OF HEARING:                   Vancouver, British Columbia

DATE OF HEARING:                      October 23, 2001

REASONS FOR ORDER OF THE COURT BY: Nadon J.

DATED:                                               November 9, 2001

APPEARANCES:                          

Andrew Z. Wlodyka                                                                     FOR APPLICANT

Peter Bell                                                                                      FOR RESPONDENT

SOLICITORS OF RECORD:

Lowe & Company                                                                       FOR APPLICANT

Vancouver, British Columbia

Deputy Attorney General of Canada                                      FOR RESPONDENT

Department of Justice

Vancouver, British Columbia