Date: 20010703
Court File No.: T-1656-99
Neutral Citation: 2001 FCT 735
Ottawa, Ontario, this 3rd day of July, 2001
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
YONGYING ZOU
Respondent
REASONS FOR ORDER AND ORDER
[1] The respondent failed to appear at the hearing of this matter. Being satisfied that the respondent was notified of the hearing date, I proceeded with the hearing in the presence of counsel for the applicant only.
[2] This is an appeal from the decision of Citizenship Judge Roberti dated July 20, 1999, wherein the Citizenship Judge approved the application of the respondent for a grant of citizenship under subsection 5(1) of the Citizenship Act, R.S.C. 1985, c. C-29.
Facts
[3] The respondent was born in the People's Republic of China, on March 11, 1956 and is married with one child. She first came to Canada with her husband and child on February 21, 1995, and was granted landed immigrant status that same day. On August 28, 1998, the respondent made her application for citizenship.
[4] In her residence questionnaire, the respondent stated that upon her arrival in Canada she and her family lived with relatives at 5 Forester Cres. in Markham, Ontario. In June of 1995, the family purchased a home at 36 Fawndale Cres. in Scarborough, Ontario. The family has resided in their home ever since. Indeed, the closing date on the agreement of purchase and sale is shown to be on June 21, 1995.[1]
[5] In her application, the respondent noted that when she came to Canada, "...we opened a business, purchased a car, a house, my daughter started school. I went to English school, opened a bank account and paid taxes." She further noted that her first absence from Canada was for personal reasons, the second was to visit her sick mother and the third was for business reasons.
[6] The Citizenship Judge found that the respondent was present in Canada for 684 days, leaving her 411 days short of the requisite 1095 days.
[7] The respondent produced the following indicia of residence in Canada:
- OHIP [Tribunal Record p. 58]
- Social Insurance Number [Tribunal Record p. 59]
- Toronto Public Libraries card [Tribunal Record p. 60]
- Royal Bank Visa and Royal Bank account [Tribunal Record p. 61]
- Capital One Gold Visa [Tribunal Record p. 62]
- Bank of Montreal account [Tribunal Record p. 63]
- Zellers Credit Card and Club Z card [Tribunal Record p. 64]
- Sears Credit Card [Tribunal Record p. 65]
- Canadian Tire Options Mastercard [Tribunal Record p. 66]
- Price Costco Membership Card [Tribunal Record p. 67]
- Chinese Information & Community Service of Toronto Membership Card [Tribunal Record p. 68]
- RRSP contributions with Royal Bank [Tribunal Record p. 70]
- Life Insurance [Tribunal Record p. 72]
- Lease of Safe Deposit Box with the Royal Bank [Tribunal Record p. 75]
- Car Insurance [Tribunal Record p. 81]
[8] The Citizenship Judge produced the following handwritten reasons contained in a printed form decision and found at paragraph 18 of the applicant's memorandum of argument at page 126 of the applicant's record:
I carefully considered the documentation in this file [and] my interview with the Applicant. The Applicant came to Canada in February, 1995, when she became a [landed immigrant]. She returned to China for [approximately] 3 months to settle her affairs[,] after which she came back to Canada and started her own business (a bedding retail store). Applicant travelled to China, Cambodia [and] Thailand for business purposes on three separate occasions to purchase materials for her store. Her only other absence from Canada was due to her mother's illness. She went to visit her and look after her in 1996. While she was absent her husband [and] daughter stayed in Canada in the home they had purchased in 1995. Applicant went to school here and studied English as second language. Her English was excellent [and] her knowledge of Canada was very good. Applicant has centralized her mode of living in Canada and has Canadianized herself [and] I have therefore approved her application.
Standard of Review
[9] In determining the standard of review to be applied in reviewing the decision of a Citizenship Judge I adopt the analysis of Lutfy J. (as he then was) in Lam v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 410, T-1310-98 (March 26, 1999) T.D. at 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.
[10] During the course of the hearing, counsel for the applicant argued that the Citizenship Judge erred in concluding that the respondent had established residence in Canada at least three years prior to her application for citizenship as required by paragraph 5(1)(c) of the Citizenship Act. The applicant contends that, in her first four months, the respondent was in Canada for a period of five days in February 1995 and a period of fifteen days in June 1995, not long enough for the Citizenship Judge to conclude that she had established residence here.
[11] The applicant argues that the Citizenship Judge misapprehended the fact that the respondent visited her sick mother in June 1996, when this visit occurred one year earlier in June of 1995. This according to the applicant led the judge to erroneously conclude that the respondent had established residence.
[12] The applicant argued in the alternative that the respondent is not resident in Canada since she did not meet the test set out by Madam Justice Reed in Re Koo, [1993], 1 F.C. 286, at pp. 293-294, in other words, she did not demonstrate sufficient attachment to Canada to justify the granting of citizenship. Essentially, the applicant points to the respondent's extended absences from Canada at regular intervals; that she did not "appear" (emphasis added) to be earning her living in Canada as evidenced by her tax returns and her unprofitable company; and her apparent lack of attachment to Canada.
[13] I will not review the history of the divided opinion of this Court on residence requirement under paragraph 5(1)(c) of the Citizenship Act. Suffice it to say that certain judges have followed the test set out in Re Pourghasemi [1978] 2 F.C. 208, where physical presence in Canada for the required number of days is deemed essential, with little regard to reasons for the shortfall. Other judges of this Court have adopted the reasoning of Mr. Justice Thurlow in Papadogiorgakis, and have held that, notwithstanding absences that exceeded that of the statutory requirement of minimum days in Canada, what matters is that the applicant has centralized his ordinary mode of existence in Canada.
[14] The Re Koo decision, referred to by the applicant, was an attempt by Madam Justice Reed to reconcile the two positions. In Re Koo Madam Justice Reed listed those factors which she felt would point to sufficient attachment to Canada to justify the granting of citizenship, even if the periods of absence exceed the statutory maximum.
[15] The jurisprudence supports the proposition that a Citizenship Judge may adopt and apply whichever of the above test he or she choses as long as it is applied properly. In Lam, at paragraph 14, Lutfy J. (as he then was) stated:
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.
[16] Mr. Justice MacKay, in Singh v. MCI, [1999] F.C.J. No. 786 expressed a reviewing court's function in applying the standard of review described in Lam as follows:
The approach Lutfy J. suggests for review of the Citizenship Judge's decision is to assess whether the judge has made reference to one or other of these classifications of jurisprudence, and if that is done, whether that is then applied correctly to the facts of the case. If so there is no basis for intervention of the Court.
[17] I am satisfied that the Citizenship Judge in the case at bar opted for the test expressed by Thurlow J. in Re Papadogiorgakis. It is useful to reproduce here the words of Mr. Justice Thurlow at pages 213-215:
It seem as to me that the words "residence" and "resident" in paragraph 5(1)(b) of the new Citizenship Act are not as strictly limited to actual presence in Canada throughout the period as they were in the former statute but can include, as well, situations in which the person concerned has a place in Canada which is used by him during the period as a place of abode to a sufficient extent to demonstrate the reality of his residing there during the material period even though he is away from it part of the time. [...]
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. 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".
[...]
He did so without closing out or breaking the continuity of his maintaining or centralizing his ordinary mode of living there. He took with him what he needed for the purpose of his stay in Massachusetts, but left the remainder of his belongings at the home where he had been living.
[18] In the present proceeding, after carefully reviewing the evidence that was before the Citizenship Judge, and hearing counsel for the applicant, I am satisfied that the Citizenship Judge did not err in applying the facts of this case to the "Thurlow" test. The respondent, her husband, and child lived in their own home in Canada, she owned and operated a business in Canada although not profitably. The respondent may well have travelled extensively for business reasons and to visit her sick mother, the fact that her family stayed behind, while she was away, allows me to conclude that her absences were temporary and that she had every intention to return home to Canada. I am satisfied that the Citizenship Judge did not err in concluding that the respondent had centralized her mode of living in Canada.
[19] In applying the standard of review specified in Lam and in considering all of the submissions advanced by counsel for the applicant, I have not been persuaded that the Citizenship Judge erred in law by failing to apply the proper legal principles of residency to the facts before him in the present case.
[20] For these reasons the appeal will be dismissed.
ORDER
THIS COURT ORDERS that:
1. The appeal by the Minister of Citizenship and Immigration to have the decision of the Citizenship Judge Roberti dated July 20, 1999 set aside is dismissed.
"Edmond P. Blanchard"
Judge