Date: 20040116
Docket: T-909-03
Citation: 2004 FC 65
BETWEEN:
YUEFAN WAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HARRINGTON J.:
[1] How do I love Canada? Let me count the days. With apologies to Elizabeth Barrett Browning, that is what this case is all about.
[2] Mr. Wan is a landed immigrant who applied for Canadian citizenship. A Citizenship judge dismissed his application because he had not accumulated at least three years of residence in the four years immediately preceding his application, as contemplated under section 5(1)(c) of the Citizenship Act, RSC 1985, c. C-29.
[3] He has appealed that decision to this Court.
[4] It is readily conceded that Mr. Wan was not physically present in Canada for at least three of the four years immediately preceding his application. In fact he was only here approximately 210 days, while the Act calls for a minimum of 1,095 days. However, Mr. Robins on his behalf submitted that once one's life is centralized in Canada, days spent abroad count as "Canadian" days for the purpose of accumulating days which count for citizenship and in any event days spent abroad working for a Canadian company must be deemed to be days spent in Canada.
[5] The decision also came under fire on the basis that the Citizenship judge not only looked at the four years immediately preceding the application, but also looked at the period of April 1 to August 5, 1997, which should not have figured into the count because the application for citizenship was filed on August 5, 2001.
[6] The other grounds of appeal are more procedural. The Citizenship judge took more than the 60 days allowed by law to hand down her decision and, it is suggested, she did not give cogent reasons.
THE FACTS
[7] Mr. Wan applied for citizenship on August 5, 2001. He initially entered Canada with his wife (who is now a Canadian citizen) on April 1, 1997. He left for France two weeks later to continue doctorate studies. After completing those studies in July 1998 he was hired by a Canadian company and has been working for them in China ever since. Although he spent only about seven months here, his wife lives here, and for the most part his daughter has also lived here. He is a Canadian taxpayer.
[8] The pertinent part of the Citizenship judge's decision is as follows:
I found that you met all of the requirements for citizenship set out in the Citizenship Act, except for the requirement of residence. Under paragraph 5(1)(c) of the Act, an applicant is required to have accumulated at least three years of residence in Canada within the four years immediately preceeding[sic] his or her application.
According to the evidence in your file and presented at your hearing, you came to Canada on [sic]. You were granted permanent resident status on April 1, 1997. You filed for Canadian citizenship on August 5, 2001, and at that time, your absences from Canada totalled 1460 days. In these circumstances, you had to convince me, in order to meet the residence requirements, that your absences from Canada, could be considered as a period of residence in Canada.
Federal Court precedents require that, to establish residence, an individual must show, in mind and in fact, a centralization of his or her mode of living in Canada. If such residence is established, absences from Canada do not affect this residence, as long as it is demonstrated that the individual left for a temporary purpose only and maintained in Canada some real and tangible form of residence.
I carefully examined your case to determine if you established residence in Canada before your absences so that these absences could be considered as a period of residence; and if during your absences you maintained sufficient links with Canada. The facts lead me to the conclusion that you have not established nor maintained residence in Canada and therefore you do not meet the residence requirements.
THE LAW
[9] While it is true that the Citizenship judge did not render her decision within 60 days as required by s. 14 of the Act, Mr. Wan suffered no prejudice. The Act does not give him citizenship as a remedy, or without further ado the right to a new hearing before a different judge.
[10] As to the submission that cogent reasons were not given, I disagree. Although they were not cited by name, it is clear that the Citizenship judge had re: Antonius E. Papadogiorgakis, [1978] 2 F.C. 208 and re: Koo, [1993] 1 F.C. 286 in mind. Indeed, reasons in very similar language were upheld in Gheorghiu v. Canada (Minister of Citizenship and Immigration) (2000), 5 Imm.L.R. (3d) 219, at paras. 33 and 34.
[11] In Papadogiorgakis, supra, Thurlow, A.C.J. looked at the period before the four years immediately preceding the application for citizenship to see if the applicant had already established himself here. Indeed, it was potentially to Mr. Wan's advantage that the Citizenship judge looked at that period. However, he was only here for two weeks before he left, and stayed away for 15 months.
[12] Since Mr. Wan returned to Canada on returning resident permits, it was submitted that his absences should be counted towards the residency requirements. Like O'Keefe J. in Sharma v. Canada (Minister of Citizenship and Immigration), 2003 FC 1384, I do not agree. In fact, in Sharma the applicant's first absence from Canada came 13 days after he was landed here. It was held that he had not established a centralized mode of living in those 13 days prior to his first absence of 160 days from Canada. The same applies here.
[13] Nor do I consider the fact that he was working abroad for a Canadian company particularly relevant. Mr. Robins pointed out that days working abroad for a Canadian business count towards the residency obligations of a permanent resident under s. 28 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. If those days were counted as Canadian days Mr. Wan still would not have reached the three years, but would have been a lot closer.
[14] "Residence" within the meaning of the Citizenship Act has not been defined which has given rise to different schools of thought. As I mentioned in Pau v. The Minister of Citizenship and Immigration, 2003 FC 1439, some judges have interpreted the word as meaning actual physical presence in Canada for a total of three years, as set out in Pourgasemi (Re) (1993), 62 F.T.R. 122. Others have held that a person can be resident in Canada even while temporarily absent if the person was already established here, re: Papadogiorgakis, supra, and the third strand, which seems to be the most popular, defines residence as the place where one "regularly, normally or customarily lives" or the place where one has "centralized his or her mode of existence", Koo (Re), [1993] 1 FC 286.
[15] Ms. Dagenais, on behalf of the Minister, pointed out that while the Immigration and Refugee Protection Act included some consequential amendments to the Citizenship Act, they were not substantial. I agree that Parliament could not possibly have intended to put the residency debate in the Citizenship Act to rest in this manner. I find there is still no definition of residency for citizenship purposes.
[16] If taken to its logical extreme, assuming another country has an identical Citizenship act, an immigrant could become a citizen of two countries over the same four year period by establishing himself, or centralizing his mode of existence in one, while being physically present in the other for at least three years.
[17] Mr. Wan chose to spend a large part of his time abroad in connection with his business. In consequence his application for citizenship has been adversely affected (Alibhal v. Canada (Minister of Citizenship and Immigration), 2003 FCT 169 and Re Leung (1991), 42 F.T.R. 149).
[18] I find that the Citizenship judge identified and correctly applied the residency test in Re Koo, supra, and demonstrated in her reasons an understanding of the test and correctly applied the facts to that test. Accordingly, there is no reviewable error, and the appeal shall be dismissed.
"Sean Harrington"
J.F.C.
Ottawa, Ontario
January 16, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-909-03
STYLE OF CAUSE: YUEFAN WAN
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JANUARY 8, 2004
REASONS FOR ORDER : HARRINGTON J.
DATED: JANUARY 16, 2004
APPEARANCES:
Mr. Sheldon Robins FOR APPLICANT
Ms. Diane Dagenais FOR RESPONDENT
SOLICITORS OF RECORD:
Sheldon M. Robins
Toronto, ON FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT