Date: 20040615
Docket: T-673-03
CALGARY, Alberta, this 15th day of June, 2004.
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
YUNAN YAN
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an appeal pursuant to subsection 14(5) of the Citizenship Act, R.S.C., 1985, c. C-29 ("Act"), and section 21 of the Federal Court Act, R.S.C. 1985, c. F-7 by the Minister of Citizenship and Immigration from the decision of Citizenship Judge Mary Patricia Gleason, dated March 18, 2003, wherein the Citizenship Judge approved the application of the respondent for a grant of citizenship under subsection 5(1)(c) of the Act.
FACTS
[2] The respondent is a citizen of China who, accompanied by his wife and daughter, entered Canada as a permanent resident on April 22, 1999. Shortly after landing, the respondent rented an apartment in Toronto where he lived with his family and he began employment with Nova Chemicals Corp. ("NOVA"), a Canadian petrochemical company. His employment with NOVA required him to make frequent international travels. He applied for Canadian citizenship on September 5, 2002, at which time he had been physically present in Canada for 653 days out of the required 1095 days, resulting in a shortfall of 442 days. The respondent's absences were as follows:
August 29, 1999 to September 4, 1999 - 6 days in China
January 22, 2000 to January 27, 2000 - 5 days in Switzerland
February 13, 2000 to February 14, 2000 - 1 day in USA
February 28, 2000 to August 25, 2001 - 544 days in Switzerland
November 15, 2001 to November 25, 2001 - 10 days in Korea/China
May 5, 2002 to May 18, 2002 - 13 days in Korea/China
[3] The respondent presented the following supporting evidence to demonstrate a centralized mode of existence in Canada:
- his spouse and child live in Canada
- he has maintained medical insurance since August 1, 1999
- he has maintained a bank account with TD Canada Trust since September 15, 1999
- he obtained a Returning Resident Permit for his extended absence of 544 days, and stored his furniture in Canada
- he owns a home in Calgary, Alberta
- he has ongoing employment with NOVA
- he has an Alberta health care card
- he has an Alberta operator's licence
- he pays Canadian income tax
[4] The Citizenship Judge approved the respondent's application because she found that all of the respondent's absences had been temporary in nature, for the purposes of Canadian employment, and that the respondent always considered Canada as his home. Her final decision reads as follows:
Considers Canada Home - always returns at every opportunity - now owns home - pays Cdn taxes, Cdn driver licence, health care insurance, bank account, speaks good English. Has investment with Nova, owns his home where he lives with wife and family. Owns nothing outside of Canada. Present 653 days out 578 days all for Canadian Company.
RELEVANT LEGISLATION
[5] The relevant portion of the Citizenship Act is subsection 5(1)(c)(ii) which provides:
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5. (1) The Minister shall grant citizenship to any person who
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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: [...]
(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;
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Attribution de la citoyenneté 5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois_:
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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_: [...]
(ii) un jour pour chaque jour de résidence au Canada après son admission à titre de résident permanent;
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STANDARD OF REVIEW
[6] The standard of review on an appeal of this nature is correctness insofar as it relates to whether or not an applicant has been deemed to be physically present for the requisite time period. See Zhang v. Canada (MCI), 2001 FCT 501, [2001] F.C.J. No. 778 (T.D.)(QL) at paragraph 7; and Canada (MCI) v. Hung (1998), 47 Imm. L.R. (2d) 182 (F.C.T.D.) at paragraph 12. Nonetheless, the Court should show some degree of deference to the Citizenship Judge and not substitute its opinion for that of the Judge if she, in clear reasons which demonstrate an understanding of the case law, properly decides that the facts satisfy her view of the statutory test in paragraph 5(1)(c), see Lam v. Canada (MCI) (1999), 164 F.T.R. 177 (T.D.) at paragraph 33. The function of this Court is to verify that the Citizenship Judge has properly applied the test of her choosing, see Canada (MCI) v. Mindich (1999), 170 F.T.R. 148 (T.D.) at paragraph 9.
ANALYSIS
[7] The sole issue in this appeal is whether or not the Citizenship Judge correctly determined that the respondent meets the statutory residence requirements under subsection 5(1)(c)(ii) of the Act. The applicant submits that the Citizenship Judge either misunderstood or misapplied the test set out by this Court in Koo, [1993] 1 F.C. 286 (T.D.). The applicant submits that the Citizenship Judge failed to properly consider all the relevant factors and argues that there is no evidence indicating that the respondent established himself as a resident of Canada prior to his absences, or that he had centralized his mode of living in Canada during the relevant time period. The applicant submits that this is not a close case which might justify a departure from the strict requirements of the Act, since the respondent falls short of the requisite time by more than a year.
[8] The respondent submits that his absences from Canada were never voluntary and were simply business travels for his Canadian employer. The respondent argues that the evidence demonstrates a centralized mode of living in Canada, despite his absences.
Test for residency
[9] This Court has set out a number of different residency tests with respect to subsection 5(1)(c) of the Act. In this case, the Citizenship Judge applied the test in Koo, supra, wherein Madam Justice Reed set out a flexible six-part test for residency, that is not dependent solely on how many days an applicant has been physically present in Canada. At paragraph 10, Reed J. states:
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?
[10] I have reviewed the certified record, including the Citizenship Judge's "reasons for decision regarding residence". It is clear from those reasons that the Citizenship Judge misapplied the factors to be considered under the Koo test.
[11] Subsection 5(1)(c) of the Act requires that an applicant acquire at least 3 years of residence within the 4 years immediately preceding the date of application for Citizenship. The facts show that the respondent is short of this requirement by over a year. While the Koo test allows residency to be interpreted such that physical presence may not be required for the entire three year period, the Koo test cannot be used to deem an applicant to have been physically present for the requisite period if the individual was absent for 1½ years.
[12] On his citizenship application questionnaire, the respondent indicated that he did not maintain a residential base in Canada or pay Canadian income tax while he lived in Switzerland. Even though the respondent obtained a Returning Resident Permit, maintained a Canadian bank account, Canadian medical insurance, a provincial driver's licence, and put his furniture into storage during his extended absence in Switzerland, this is insufficient to meet the Koo test for deemed physical presence. In Koo, short absences will be counted after the individual has been physically presented so as to have centralized his or her existence in Canada. Here Mr. Yan did centralize his existence in Canada for 10 months after arriving in Canada as a permanent resident, but he then left Canada for 1½ years with his family. Such an absence is too extensive to be deemed residence in Canada for the purpose of the Koo test.
[13] Mr. Yan will undoubtedly become a Canadian citizen, but must wait until he can satisfy the criteria set out in Koo. A physical absence of 1½ years does not satisfy that criteria. If Mr. Yan has now centralized his existence in Calgary with his family since returning from Switzerland, then he will soon meet the 3 year physical presence in Canada criteria and can obtain his citizenship. For these reasons, the appeal is allowed.
ORDER
THIS COURT ORDERS THAT:
This appeal is allowed and the decision of the Citizenship Judge is set aside.
"Michael A. Kelen" _______________________________
JUDGE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-673-03
STYLE OF CAUSE: Minister of Citizenship and Immigration
Applicant
- and -
Yunan Yan
Respondent
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: June 14, 2004
REASONS FOR ORDER AND ORDER : KELEN J.
DATED: June 15, 2004
APPEARANCES:
Ms. Camille Audain FOR APPLICANT
Mr. Yunan Yan (On His Own Behalf)
RESPONDENT
SOLICITORS OF RECORD:
Morris A. Rosenberg
Deputy Attorney General of Canada FOR APPLICANT
Mr. Yunan Yan (On His Own Behalf)
Calgary, Alberta RESPONDENT