Date: 20020517
Neutral citation: 2002 FCT 579
Docket: T-1262-01
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Appellant
and
TZU CHIN FAN WU
Respondent
- AND -
Docket: T-1263-01
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Appellant
and
JAN FU WU
Respondent
[1] This is an appeal brought by the appellant, the Minister of Citizenship and Immigration, pursuant to subsection 14(5) of the Citizenship Act, R.S.C., 1985, c. C-29 [hereinafter referred to as the "Act"] and section 21 of the Federal Court Act for judicial review of the decision of the Citizenship Judge Paul Gallagher [hereinafter referred to as the "Citizenship Judge"], dated May 15, 2001, wherein the Citizenship Judge approved the respondents' applications for a grant of citizenship, on the basis that they met the residence requirements of paragraph 5(1)(c) of the Act.
[2] At the commencement of the hearing, neither Respondent appeared. I was informed by counsel for the Appellant that Mrs. Wu, on July 10, 2001, was personally served with the present Notice of Application and the application of appeal. She was also served, or accepted the Notice of Application and application of appeal for her husband. A Notice of Hearing was mailed to the Respondents, by registered mail, on or about December 4, 2001. The Respondents failed to go to the post office to retrieve the said registered letter.
Facts
[3] The respondent Mr. Wu was born December 5, 1940 in Taiwan. His wife, the respondent Mrs. Wu, was born in Taiwan on October 5, 1946. They have three (3) daughters.
[4] The respondents and their family entered Canada as landed immigrants on June 15, 1993.
[5] In 1998, the respondents applied for Canadian citizenship. Their applications were denied due to a shortfall of the residency requirement.
[6] On April 28, 2000, the respondents applied once again for Canadian citizenship.
[7] In the four (4) years immediately preceding the second application, the respondents' pattern of extended absences from Canada continued. The respondent Mr. Wu was physically present in Canada for 243 days, and absent for 1217 days - equivalent to 3 and 1/3 years. The respondent Mrs. Wu, was physically present in Canada for 400 days, and absent for 1060 days - equivalent to 2 years and 10 months.
[8] The respondent Mr. Wu's first absence during this period was part of a trip that lasted 156 days. He indicated that his absences were for business purposes and were temporary in nature. In regards to the respondent Mrs. Wu's first absence during this period, it occurred approximately one (1) month into the qualifying period and lasted for almost two (2) months. After returning to Canada for 17 days, she then again returned to Taiwan.
[9] Although the respondent Mr. Wu was short some 852 days, or 2 and 1/3 years of the residence requirement under the Act, the Citizenship Judge approved his application. And although the respondent Mrs. Wu was short some 695 days, or 1 year and 10 months of the residence requirement under the Act, the Citizenship Judge also approved her
application.
[10] The appellant now seeks to have both decisions overturned on the grounds that the Citizenship Judge made errors of fact, considered irrelevant facts and ignored relevant material evidence that was before him.
Impugned decision
[11] On May 15, 2001, the Citizenship Judge approved both of the respondents' applications for citizenship. At page 8 of both Certified records, it is written:
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These applications are approved.
Although both Mr + Mrs Wu have been actually resident in Canada for only a short period of time in total, they have used their time in Canada aggressively to demonstrate their strong connection and attachment to Canada - the quality of their time in Canada, in the community and with their children has been exemplary.
Please also note that Mr Wu is over age of 60 and that Mrs W [sic] has been out of Canada only to accompany her husband. |
Appellant 's position
[12] The appellant submits that the Citizenship Judge erred in rendering his decision as he made errors of fact, considered irrelevant facts and ignored material evidence that was before him.
[13] The appellant relies on the criteria of the test laid out in Koo (Re) (T.D.), [1993] 1 F.C. 286 (F.C.T.D.) to demonstrate that the respondents did not meet the residency requirement for the grant of citizenship.
Pertinent legislation
[14] Section 5 of the Act sets out the right to citizenship. Paragraph 5(1)(c) of the Act provides the test that must be satisfied by all applicants in order to meet the residence requirement for Canadian citizenship.
| 5. (1) The Minister shall grant citizenship to any person who ...
(c) has been lawfully admitted to Canada for permanent residence, has not ceased since such admission to be a permanent resident pursuant to section 24 of the Immigration Act, and has, within the four years immediately preceding the date of his 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; |
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5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois : ...
c) a été légalement admise au Canada à titre de résident permanent, n'a pas depuis perdu ce titre en application de l'article 24 de la Loi sur l'immigration, 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 :
(i) un demi-jour pour chaque jour de résidence au Canada avant son admission à titre de résident permanent, (ii) un jour pour chaque jour de résidence au Canada après son admission à titre de résident permanent;
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[15] Pursuant to the calculation prescribed by paragraph 5(1)(c) of the Act, in order to be granted citizenship, the applicant must have accumulated at least three years (1095 days) of residence in Canada within the four years immediately preceding the date of her application.
[16] Subsection 14(5) of the Act provides the statutory basis by which the Minister or an applicant for citizenship may appeal the decision of a Citizenship Judge.
| 14. (5) The Minister or the applicant may appeal to the Court from the decision of the citizenship judge under subsection (2) by filing a notice of appeal in the Registry of the Court within sixty days after the day on which
(a) the citizenship judge approved the application under subsection (2); or
(b) notice was mailed or otherwise given under subsection (3) with respect to the application. |
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14. (5) Le ministre et le demandeur peuvent interjeter appel de la décision du juge de la citoyenneté en déposant un avis d'appel au greffe de la Cour dans les soixante jours suivant la date, selon le cas :
a) de l'approbation de la demande;
b) de la communication, par courrier ou tout autre moyen, de la décision de rejet.
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Issue
17. Did the Citizenship Judge err in determining that the respondents Mr. and Mrs. Wu met the residency requirements for obtaining Canadian citizenship?
Analysis
Standard of review
[17] The jurisprudence frequently refers to the decision of Lam v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 410 (F.C.T.D.) where Lutfy A.C.J. held:
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[para 33] 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. |
[18] Pelletier J. in Canada (Minister of Citizenship and Immigration) v. Mindich, [1999] F.C.J. No. 978 (F.C.T.D.) characterized the duty of the Federal Court, as the appellate court in Citizenship decisions, as follows:
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[para 9] Given the divergence in the views of the members of the Federal Court, a Citizenship Judge could choose one approach or the other and not be wrong on that count alone. The function of the judge sitting in appeal is to verify that the Citizenship Judge has properly applied the test of his or her choosing. |
[19] Pelletier J. again addresses this issue in Canada (Minister of Citizenship and Immigration) v. Wu, [2000] F.C.J. No. 111 (F.C.T.D.) where he held:
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[para 8 ] [...] On an appeal however, a court ought not simply to substitute its opinion for that of the original tribunal where that tribunal has relative expertise and is acting within the scope of its expertise. Canada v. Southam Inc. [1997] 1 S.C.R. 748. On appeal, the Court is able to intervene apart from cases of jurisdictional error (which is often expressed in terms of a decision being patently unreasonable) but ought not to interfere simply because it would have come to a different conclusion (which is often expressed as the correctness test). In Southam, Iaccobucci J. identified this middle ground as reasonableness. In other words, where a specialized tribunal is acting within its area of relative expertise, a court to whom a statutory appeal lies ought not to interfere with the tribunal's decision if the decision is a reasonable one.
[para 9] In Lam, Lutfy J. found that the relative expertise of the Citizenship Judge in assessing whether the residence requirement had been met was not so great as to merit that degree of deference to which a truly specialized tribunal would be entitled. He therefore found that the standard of review was closer to the correctness end of the scale, though he still allowed for some measure of deference. |
[20] As well, O'Keefe J. in Wang v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1030 (F.C.T.D.) held:
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[para 11] The decision in Lam, supra, puts the standard of review for decisions of Citizenship Judges somewhere between correctness and reasonableness simpliciter, but closer towards the correctness end of the spectrum. Even if the standard is one of reasonableness simpliciter for matters of mixed fact and law (see Canada (Director of Investigation and Research v. Southam Inc., (1997) 1 S.C.R. 748) it will not be important for the disposition of this application. I might add that it is generally accepted that tribunals must be correct in their interpretation of the law. |
[21] From this collection of jurisprudence, it would seem that the applicable standard of review is that of correctness where the appellate court, the Federal Court of Canada - Trial Division in the case at bar, must verify that the Citizenship Judge has correctly applied one of the accepted residency tests. However, with regard to the standard of review for the perception of the facts in a citizenship application by the Citizenship Judge, this Court ought not to substitute its opinion for that of the Citizenship Judge unless the Citizenship Judge was clearly wrong, or made his or her finding in a perverse or capricious manner.
Accepted residency tests
[22] Several tests for residency have evolved through the jurisprudence of this Court. It has been established in Hsu v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 862 (F.C.T.D.), per Heneghan J., that Citizenship Judges may properly apply any test, but may not blend different tests together. Heneghan J. held:
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[para 7] In my opinion, it appears that the Citizenship Judge blended two tests, that is the strict calculation of time with the substantial connection test expressed in Re: Koo, [1993] 1 F.C. 286 (T.D.). While the reasons reflect consideration of the questions posed in Re: Koo, supra, there is no evidence in the record or the reasons that the Citizenship Judge fully or openly addressed her mind to the issue of "connection" to another country. Such analysis, in my opinion, would be required before the Citizenship Judge could reach the conclusion which she did, that is that the Appellant had failed to demonstrate a "known substantial connection to Canada than to any other country". I adopt the words of Justice Lemieux in Re: Agha (1999), 166 F.T.R. 245 (T.D.) at paragraph 49:
The lack of the Citizenship judge's analysis in this case is an error in principle which eliminates any reluctance I might have had in coming to a different factual conclusion notwithstanding the trial de novo context. |
[23] In re Citizenship Act and in re Antonios E. Papadogiorgakis, [1978] 2 F.C. 208 (F.C.T.D.), Thurlow A.C.J. set out the central existence test:
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A person with an established home of his own in which he lives does not cease to be resident there when he leaves it for a temporary purpose whether on business or vacation or even to pursue a course of study. The fact of his family remaining there while he is away may lend support for the conclusion that he has not ceased to reside there. The conclusion may be reached, as well, even though the absence may be more or less lengthy. It is also enhanced if he returns there frequently when the opportunity to do so arises.
It is, as Rand J. [Thomson v. M.N.R., [1946] S.C.R. 209] appears to me to be saying in the passage I have read, "chiefly a matter of 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" |
[24] Dubé J. restated this test in Banerjee (Re) (F.C.T.D.), [1994] F.C.J. No. 1360 (F.C.T.D.) at 238 as: "It is the quality of the attachment to Canada that is to be ascertained."
[25] The physical presence test set out by Muldoon J. in Pourghasemi (Re) (F.C.T.D.), [1993] F.C.J. No. 232 (F.C.T.D.) calls for the applicant for citizenship to be physically present in Canada for the required number of days. Paragraphs 3 reads follows:
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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". This happens by "rubbing elbows" with Canadians in shopping malls, corner stores, libraries, concert halls, auto repair shops, pubs, cabarets, elevators, churches, synagogues, mosques and temples - in a word wherever one can meet and converse with Canadians - during the prescribed three years. One can observe Canadian society for all its virtues, decadence, values, dangers and freedoms, just as it is. That is little enough time in which to become Canadianized. If a citizenship candidate misses that qualifying experience, then Canadian citizenship can be conferred, in effect, on a person who is still a foreigner in experience, social adaptation, and often in thought and outlook. If the criterion be applied to some citizenship candidates, it ought to apply to all. So, indeed, it was applied by Madam Justice Reed in Re Koo, T-20-92, on December 3, 1992 [Please see [1992] F.C.J. No. 1107.], in different factual circumstances, of course. |
[26] Finally, with respect to the centralized existence test, Reed J. in Koo (Re) (T.D.), [1993] 1 F.C. 286 (F.C.T.D.) [hereinafter referred to as Koo] set out a list of six factors which point to sufficient attachment to Canada so as to allow for the granting of citizenship, even where a required minium number of days has not been met:
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The conclusion I draw from the jurisprudence is that the test is whether it can be said that Canada is the place where the appellant "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 appellant'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 appellant 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? |
[27] All these tests have been held to be applicable. As Blanchard J. stated in So v. Canada (Minister of Citizenship & Immigration), [2001] F.C.J. No. 1232 (F.C.T.D.):
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[para 29] The jurisprudence supports the proposition that a Citizenship Judge may adopt and apply whichever of the above test he or she chooses as long as it properly applied.
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[28] It appears from his decision that the Citizenship Judge applied the Koo test to the facts in the present matter. I have closely examined the questions and answers found in the Reasons for Decision regarding Residence, by the Citizenship Judge, which can be found at pages 7 and 8 of the Certified records.
Physical presence in Canada for a long period prior to recent absences
[29] The first question asked by the Citizenship Judge is a reiteration of the first factor of the Koo test verbatim:
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Was the individual physically present in Canada for a long period prior to his first absence. Are most of the absences recent and occurred immediately before the application for citizenship? |
To which the Citizenship Judge wrote at page 7 of the decision:
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Mr Wu is an importer-exporter landed in 1993. Company is Canadian.
Mrs Wu accompanies her husband on business trips.
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[30] This finding does not address the question of whether the respondents have been physically present in Canada for a long period of time prior to their first absence. In fact, at no time does the Citizenship judge consider whether the respondents had become established in Canada prior to their first departure.
Extended family
[31] The second factor of the Koo test attempts to establish a connection between the applicant for citizenship, the applicant's immediate and extended family. At page 7 of the Certified records, the question and response are as follows:
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Where are the applicant's immediate family and dependants (and extended family)?
3 daughters are Canadian, all in Canada now |
[32] It would seem that the Citizenship Judge's finding ignored the fact that the question asked about the respondents extended family.
Pattern of physical presence in Canada
[33] The third factor set out in the Koo test pertains to the applicant's pattern of physical presence in Canada. Again at page 7 of the Certified records, it is read:
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Does the pattern of physical presence in Canada indicate a returning home or merely visiting the Country?
Returning home each time - returned to 2 daughters in Canada +1 in US studying at Northwestern U. |
[34] The Citizenship Judge incorrectly answered this question. There is no logical connection between the question asked and the answer provided.
Number of days present and absent from Canada
[35] The fourth factor set out in the Koo decision refers to the extent of the applicant's absences. The Citizenship Judge wrote the following at the bottom of page 7 of the Certified records:
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What is the extent of the physical absence? (Number of days away from Canada VS number of days present in Canada)
Mr Wu Mrs W [sic] present 243 present 400 absent 1217 absent 1060
* applied previously but not accepted - not resident for long enough. |
[36] The comment made by the Citizenship Judge at the bottom insinuates that he was basing his decision upon the fact the respondents had previously applied for citizenship. However, based on the significant absence on behalf of both respondents this time around, the Citizenship Judge should have realized that it would be impossible for the respondents to meet the residency requirement as set out in paragraph 5(1)(c) of the Act.
Temporary Situation
[37] In regards to the fifth factor in the Koo test, the Citizenship Judge does not answer whether the respondents absences were cause by a clearly temporary situation. Rather, he writes:
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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?
Mr Wu - international business man - export/import. Mrs Wu - accompanied husband on business to Taiwan on most occasions. |
[38] Again, there is no connection between the question asked and the answer provided.
Substantial connection with Canada
[39] The sixth and last factor in the Koo decision allows the Citizenship Judge to determine the quality of the respondents connection to Canada compared to the connection that may exist with another country. At page 8 of the Certified record, the Citizenship Judge wrote:
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What is the quality of the connection with Canada? Is it more substantial than that which exists with any other country?
-own home + car -active community member -3 daughters are Canadian resident in Canada -all standard cards + credentials -very good knowledge of Canada as judged by test results. |
[40] This answer stems more from the Knowledge Questions asked of the respondents during their interview. The Citizenship Judge erred in drawing conclusions from the Knowledge Questions since those questions are to be considered separately as part of the respondents complete evaluation for Canadian citizenship.
Irrelevant considerations
[41] I also find that the Citizenship Judge focussed on some irrelevant considerations under the DECISION heading. I cannot fathom why the Citizenship Judge included the following sentence at the end of his decision:
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Please also note that Mr Wu is over age of 60 and that Mrs W [sic] has been out of Canada only to accompany her husband. |
[42] The Citizenship Judge may be trying to imply that the respondent Mr. Wu's age and the respondent Mrs. Wu's sole reason for accompanying her husband somehow justify the shortfall for the residency requirement. I am however unable to find that this conclusion logically flows from his reasons.
[43] After a full examination of the present matter, it seems as though the Citizenship Judge did not accurately provide the answers to the questions according to the criteria laid out in Koo. Rather, his answers are indefinite and lack analysis. In addition, the facts of the case at bar reveal that the respondents' behaviour is that of substantial and frequent absences from Canada with infrequent and shorter visits to Canada with the majority of their time spent in Taiwan. Thus the shortfall in the present matter is substantial: the respondent Mr. Wu is short 852 days and the respondent Mrs. Wu is short 695 days. This clearly demonstrates that the respondents have not met the residency requirements during the relevant time period in accordance with paragraph 5(1)(c) of the Act.
[44] The Citizenship Judge was clearly wrong when he approved the respondents' application for Canadian citizenship which justifies the intervention of the Court.
[45] Therefore this appeal is allowed, with costs in favour of the Appellant.
(Sgd.) "Max M. Teitelbaum" Judge
Vancouver, British Columbia
May 27, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1262-01
T-1263-01
STYLE OF CAUSE: MCI v. Tzu Chin Fan Wu
MCI v. Jan Fu Wu
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: May 16, 2002
REASONS FOR ORDER OF THE COURT BY: Teitelbaum J.
DATED: May 17, 2002
APPEARANCES:
Peter Bell FOR APPELLANT
- RESPONDENT
SOLICITORS OF RECORD:
Deputy Attorney General of Canada FOR APPELLANT
Department of Justice
Vancouver, British Columbia
- FOR RESPONDENT