Date: 20010703
Court File No.: T-20-00
Neutral Citation: 2001 FCT 733
Ottawa, Ontario, this 3rd day of July, 2001
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
INGRID WAN GAR SO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Nature of the Proceeding
[1] This is an appeal by Ingrid Wan Gar So to have the decision of the Citizenship Judge Silva, dated November 12, 1999 set aside. The Citizenship Judge refused the applicant's application for citizenship since she did not satisfy the residency requirements set out in paragraph 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29.
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 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
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,
Facts
[2] The applicant was born on June 16, 1977 in Hong Kong, and entered Canada along with her parents and two sisters on July 23, 1990. On July 26, 1994, the applicant, her parents and her two sisters were landed in Canada. Prior to her coming to Canada, the applicant was a student in Hong Kong, living with her grandmother.
[3] During the two years that followed her landing in Canada, the applicant attended Havergal College, a high school in Toronto. The applicant opened bank accounts with Canadian chartered banks, obtained her driver's license, OHIP card, SIN card, credit card and the usual documentary indicia of residence in Canada.
[4] The applicant was financially dependant on her parents and did not own properties in Canada, she nevertheless filed an income tax return every year as a resident of Canada.
[5] The applicant's immediate family has been residing in Canada since landing. Her family owns a condominium in North York and a car. Other relatives of the applicant are Canadian citizens residing in Toronto and Vancouver. They include her father's three uncles anf their families as well as her aunt and her family.
[6] In the first two years of her landing, the applicant lived in the boarding school of Havergal College in Toronto. The evidence indicates that the applicant was very involved in school activities and was even appointed junior don in her second year.
[7] The applicant was also involved in community activities, volunteering with the Toronto Association of Parents with Multiple Children
[8] In 1996, the applicant elected to attend Northwestern University in the United States despite being accepted at York University in Canada. She elected to attend Northwestern University because their communication program was more diversified than the one offered at York University. The applicant obtained a returning resident permit from Citizenship and Immigration Canada, in order to validate her absences from Canada for the time she was studying in the United States.
[9] The applicant has immediate and extended family in Canada. While the applicant was studying in the United States, she kept a room in her parents home in North York, Ontario, where she stored her personal belongings.
[10] In the Spring of 1998, the applicant applied for summer jobs in Canada but was unsuccessful.
[11] On March 24, 1998, the applicant applied for citizenship. From the date she landed in Canada, July 26, 1994, to the date of her application, March 24, 1998, the applicant was only physically present in Canada for a period of 752 days. Therefore, she was 343 days short of the 1,095 days required under paragraph 5(1)(c) of the Citizenship Act. Here is a summary of the applicant's absences from Canada for the relevant period of time [List at page 10 of the Record]:
Dates Destination Reasons
Dec. 12, 94 - Jan 2, 95 Hong Kong Visit
Dec 18, 95 - Jan 2, 96 Hong Kong Visit
July 12, 96 - Aug. 26, 96 Hong Kong Visit
Sept. 15, 96 - Dec. 12, 96 United States Study
Jan. 5, 97 - June 12, 97 United States Study
June 18, 97 - Sept. 7, 97 Hong Kong Visit
Sept. 15, 97 - Dec. 12, 97 United States Study
Dec. 15, 97 - Jan. 3, 98 Hong Kong Visit
Jan. 3, 98 - Mar. 18, 98 United States Study
The applicant contends, that her residence questionnaire incorrectly states that she was studying in the United States during the period from November 27, 1996 to December 1, 1996. The applicant claims that she returned to Canada during that period to be with her family because of the U.S. Thanksgiving holiday.
[12] On September 30, 1999, the applicant had her interview with Citizenship Judge Silva. During her interview, the Citizenship Judge asked her questions on her knowledge of Canada. The Citizenship Judge then asked the applicant to provide him with a completed residence questionnaire and supporting documents.
[13] On October 28, 1999, the applicant had her second interview with the same Citizenship Judge. At this time, she provided him with her residence questionnaire and supporting documents. The applicant alleges that at the end of the interview, the Citizenship Judge told her that he would study her case again before making his decision. However, as it is pointed out by the applicant, according to the Notice to the Minister, the Citizenship Judge refused her application on the day of her second interview, i.e. October 28, 1999 [page. 52 of Record].
Citizenship Judge's Decision
[14] It is not disputed that the Citizenship Judge chose the Re: Pourghasemi test in determining in his November 12, 1999 decision that the applicant did not meet the residency requirements of paragraph 5(1)(c) of the Act.
Issues
[15] Did the Citizenship Judge err in determining that the applicant did not meet the requirements prescribed under paragraph 5(1)(c) of the Citizenship Act?
[16] The applicant raises these following sub-issues:
(a) whether the applicant was given a fair opportunity to present her case to the Citizenship Judge;
(b) whether the Citizenship Judge misapprehended the facts of the applicant's case and accordingly reached erroneous factual conclusion;
(b) whether the Citizenship Judge in making his finding of facts acted in a perverse or capricious manner or without regard to the evidence;
(d) whether the Citizenship Judge erred in law by adopting a wrong legal test in assessing whether the applicant had met residence requirements under the Citizenship Act; and
(e) in the event that the Citizenship Judge had adopted the correct legal test, whether the Citizenship Judge erred in application of the law to the facts of the applicant's case.
Standard of Review
[17] In Lam v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 410, p. 11 at paragraphs 32-33, Lutfy J., as he then was, indicated that the standard of review for decisions by a citizenship judge pursuant to paragraph 5(1)(c) of the Citizenship Act should be close to the correctness end of the spectrum. However, it was also held that a certain amount of deference is owed to the special knowledge and experience of citizenship judges.
In short, even though the objective factors might dictate more deference to the decisions of citizenship judges, this is neither the time nor the environment in which to depart radically from the current standard of review.
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.
Analysis
[18] The applicant submits that the Citizenship Judge breached his duty of procedural fairness since he did not put forward the issue of "Canadianization" during the interview. Therefore the applicant states that the Citizenship Judge did not give her a fair opportunity to contradict the case against her since she did not have the opportunity to prove that she was "Canadianized".
[19] The respondent contends that the applicant was given a fair opportunity to present her case and that there was no onus on the Citizenship Judge to explicitly advance the issue of "Canadianization" during the interview.
[20] In Maharatnam v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 405, p. 2 at paragraph 5, Gibson J. states:
I am satisfied that the onus is on the applicant for Canadian citizenship to satisfy a Citizenship Judge that he or she fulfills the requirements of the Act.
[21] I am also of the view that the onus is on the applicant to convince the Citizenship Judge that she had been "Canadianized". There is no obligation on the Citizenship Judge to raise the issue during the interview.
[22] The applicant submits that no consideration appears to have been given to the length and quality of the applicant's attachments to Canada prior to her study in the United States. The applicant states that the Citizenship Judge may not have considered carefully all of the applicant's documentary evidence before his conclusion was drawn as his decision was made on the same day as the receipt of the applicant's residence questionnaire and supporting documents.
[23] However, it is the respondent's submission that the applicant has not established that any evidence has been ignored or misunderstood. The respondent also submits that the Citizenship Judge is not required to summarize or refer to every piece of evidence in his or her decision.
[24] In fact, as it is stated by Blais J. in Cheng v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 614, p. 3 at paragraph 17, a Citizenship Judge does not have to mention all the evidence in his decision.
The fact that all the evidence is not mentioned does not constitute an error. The Citizenship judge is presumed to have taken into consideration all the evidence submitted. It would be too onerous a task to mention every piece of evidence submitted either written or during the interview.
[25] The applicant contends that the "centrality of the mode of living" test laid down in Re Papadogiorgakis and Re Koo is the principal legal test for residence when dealing with students. The applicant alleges that the Citizenship Judge erred in law by adopting the "Canadianization" test in Re: Pourghasemi and that the applicant's application would have been treated more favourably if the legal test in Re Papadogiorgakis and Re Koo had been adopted. However, the applicant then concedes that there are different views concerning the proper interpretation of paragraph 5(1)(c), and that it is open to the Citizenship Judge to adopt either one of the conflicting schools set out by this Court. The applicant also concedes that 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.
[26] The respondent submits that the Citizenship Judge did not apply the wrong test. He states that there is no "right" or "wrong" test, but only the careful application of one of the three tests.
[27] 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.
[28] In the Re Koo decision, referred to by the applicant, 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.
[29] 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.
[30] 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.
[31] In applying the facts in this case to the Re Pourghasemi test, the applicant submits that the Citizenship Judge erred in ignoring the length and quality of the time she spent in Canada prior to her leaving for Northwestern University. Furthermore, the applicant contends that it appears that the Citizenship Judge did not give consideration to the fact that she made efforts to return to Canada whenever the circumstances allowed it.
[32] It is my opinion that the Citizenship Judge did take this evidence into account when he made his decision. Indeed in his reasons, the Citizenship Judge makes reference to the applicants visits to Canada to visit family and friends while she was a student living in the U.S.A. The Judge went on to conclude that as a result of the applicant's need to travel outside Canada she was 343 days short of the required 1095 days, she did not spend sufficient time in Canada to "Canadianize" herself. Such a finding is open to the Citizenship Judge in the application of the Re Pourghasemi test he elected to follow.
[33] The test chosen by the Citizenship Judge treats residence under the Act as meaning physical presence so that the counting of days of physical presence in Canada has considerable significance. In Pourghasemi, Mr. Justice Muldoon, in his reasons, addressed the requirements of paragraph 5(1)(c) of the Citizenship Act, "That provision enacts that the applicant must have ‘within the four years immediately preceding the date of this application, accumulated at least four years of residence in Canada. Parliament introduces an element of emphasis into the statutory test by enacting' at least three years of residence in Canada..."
[34] I have reviewed the reasons of the Citizenship Judge and find that he did identify and apply the test set out in Pourghasemi. I find that the Citizenship Judge did demonstrate in his reasons an understanding of the case law, and properly decided that the facts satisfy his view of the statutory test in paragraph 4(1)(c).
Conclusion
[35] In my opinion, the Citizenship Judge did not err in determining that the applicant did not meet the requirements prescribed under paragraph 5(1)(c) of the Citizenship Act. Therefore, this appeal should be dismissed.
ORDER
1. The appeal by Ingrid Wan Gar So to have the decision of the Citizenship Judge Silva dated November 12, 1999 set aside is dismissed.
"Edmond P. Blanchard"
Judge