Federal Court Decisions

Date: 20020429

Docket: T-290-01

Neutral citation: 2002 FCT 489

Ottawa, Ontario, this 29th day of April, 2002

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                                                          HAO, BIN

                                                                                                                                                       Applicant

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                 This is an appeal of the decision of the Citizenship Judge dated December 7, 2000, wherein the applicant's application for Canadian citizenship under paragraph 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29 was not approved.

[2]                 The applicant seeks:

1.          an order for a writ of certiorari quashing the decision of the Citizenship Judge;

2.          an order declaring that the applicant meets the requirement of subsection 5(1) of the Citizenship Act, supra;

3.          an order for a writ of mandamus directing that the Citizenship Office grant citizenship to the applicant;

4.          an order allowing the appeal.

Background

[3]                 The applicant, Mr. Bin Hao, first came to Canada as a visitor in December, 1993.

[4]                 The applicant subsequently submitted an application for permanent residence in Canada as an entrepreneur.

[5]                 The applicant landed in Canada as a permanent resident on November 21, 1995. The applicant's wife arrived in Canada separately but on the same day, also landing as a permanent resident via Niagara Falls. The applicant's two children from his previous marriage landed in Canada on January 12, 1996 and March 28, 1996 respectively. The applicant also has a son born in Canada on May 15, 1995.

[6]                 On November 23, 1998, the applicant submitted an application for Canadian Citizenship. The application for citizenship was completed 1,097 days (about three years) after he landed as a permanent resident in Canada. On October 12, 2000, he appeared before the Citizenship Judge who subsequently determined that he did not meet the residency requirement set out in paragraph 5(1)(c) of the Citizenship Act, supra.

[7]                 According to the applicant's citizenship application, the applicant's history of absence from Canada since landing is as follows:

[8]                 According to the information provided by the applicant, the applicant claims to have been absent from Canada for 575 days and present 522 days, during the period between becoming a permanent resident and applying for Canadian Citizenship. The 522 days he claims to have been in Canada during the four years preceding his application for citizenship is 573 days short of three years (1,095 days) as required by paragraph 5(1)(c) of the Citizenship Act, supra.

[9]                 In the letter containing the decision, the Citizenship Judge stated in part:

I found that you did not meet the requirement of residence. Under Subsection 5(1)(c) of the Citizenship Act, an applicant is required to have accumulated at least three years (1,095 days) of residence in Canada within the four years immediately preceding his or her application.

[10]            The applicant's wife had applied for Canadian citizenship at the same time as the applicant and was also denied for failure to meet the requirements of paragraph 5(1)(c) of the Citizenship Act, supra.

[11]            This is the judicial review of the decision of the Citizenship Judge to not approve the applicant's application for Canadian citizenship.

Applicant's Submission

[12]            The applicant submits that correctness is the appropriate standard of review for the review of a decision made by a Citizenship Judge.

[13]            The applicant submits that the applicant meets the requirements prescribed under paragraph 5(1)(c) of the Citizenship Act, supra.

[14]            The applicant submits that this Court in Re Koo [1993] 1 F.C. 286 held that there are six questions that should be used by the Court as guidance in reaching a conclusion on residency, and physical presence is only one of the many factors.

[15]            The applicant submits that the Citizenship Judge should have taken into account that the applicant's absences were due to business activities. The applicant submits that his wife and children remain in Canada while he travels outside Canada, and this indicates that he remains a resident in Canada.

[16]            The applicant submits that there are ample indicia that the applicant resides in Canada, and submits that the Citizenship Judge erred in finding that the applicant had not centralized his mode of living in Canada during the four years preceding his citizenship application.

[17]            The applicant submits that the Citizenship Judge breached the duty of fairness in failing to confront the applicant with her concerns regarding the applicant's application, specifically with regards to the alleged discrepancies concerning the applicant's absence from Canada.

[18]            The applicant submits that he was not given an opportunity to explain that the stamps in his passport were the equivalent of a multiple entry visa in Canada and did not necessarily correspond with the time the applicant actually spent in Japan.

Respondent's Submissions

[19]            The respondent submits that the applicant's passport indicates permits were used that indicate long absences out of Canada. The respondent notes that page 27 of the applicant's passport includes long term resident permits that were issued to, and used by, the applicant in Japan and China.

[20]            The respondent submits that the applicant has not established or maintained his presence in Canada, and has not centralized his mode of existence in Canada.

[21]            The respondent submits that there is no indication in the documentary record, and it is improbable that the applicant applied for an Ontario Health Card between November 21 and November 27, 1995 as stated in the applicant's sworn affidavit.

[22]            The respondent submits that there is no indication in the documentary record of participation in various community events, charity banquets or of specific donations to charities. The respondent submits that the applicant indicated on his residence questionnaire that he did not maintain memberships in Canadian associations. In addition, the respondent submits that it would have been open to the Citizenship Judge to find that attendance at occasional dinners and making of tax donations does not demonstrate active and personal participation in the Canadian community.

[23]            The respondent submits that presence during the four year period under paragraph 5(1)(c) must be substantial. The respondent submits that establishment in Canada is essential because unless an applicant can demonstrate establishment, absences from Canada cannot be counted as periods of residence.

[24]            The respondent submits that the Citizenship Judge did not find that the applicant was absent from Canada during the entire periods that the various permits were issued by other foreign governments. The respondent submits that the Citizenship Judge correctly found that they indicated the applicant's continuing connection to other countries. For example, the respondent submits that the applicant was issued a Change Permit to be a long term resident in a foreign country for the one year period June 18, 1998 to June 18, 1999.

[25]            The respondent submits that the Citizenship Judge did not breach procedural fairness if she did not review all of the details of the passport with the applicant at the interview. Moreover, the respondent submits that the refusal was based on the total number of absences as reported by the applicant on his application form.

[26]            Issues

1.          Did the Citizenship Judge base the decision on erroneous findings of fact made in a perverse and capricious manner or without regard to the material submitted before her, thereby committing a reviewable error?

2.          Did the Citizenship Judge fail to observe a principle of procedural fairness by failing to confront the applicant with her concerns regarding the applicant's application?

Relevant Statutory Provisions and Regulations

[27]            Paragraph 5(1)(c) of the Citizenship Act, supra states:

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; . . .

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; . . .

[28]            Subsections 24(1) and (2) of the Immigration Act, R.S.C. 1985, c. I-2 state:

24. (1) A person ceases to be a permanent resident when (a) that person leaves or remains outside Canada with the intention of abandoning Canada as that person's place of permanent residence; or (b) a removal order has been made against that person and the order is not quashed or its execution is not stayed pursuant to subsection 73(1). (2) Where a permanent resident is outside Canada for more than one hundred and eighty-three days in any one twelve month period, that person shall be deemed to have abandoned Canada as his place of permanent residence unless that person satisfies an immigration officer or an adjudicator, as the case may be, that he did not intend to abandon Canada as his place of permanent residence.

24. (1) Emportent déchéance du statut de résident permanent_: a) le fait de quitter le Canada ou de demeurer à l'étranger avec l'intention de cesser de résider en permanence au Canada; b) toute mesure de renvoi n'ayant pas été annulée ou n'ayant pas fait l'objet d'un sursis d'exécution au titre du paragraphe 73(1). (2) Le résident permanent qui séjourne à l'étranger plus de cent quatre-vingt-trois jours au cours d'une période de douze mois est réputé avoir cessé de résider en permanence au Canada, sauf s'il convainc un agent d'immigration ou un arbitre, selon le cas, qu'il n'avait pas cette intention.

Analysis and Decision

[29]            In reviewing the Citizenship Judge's decision, I will apply the standard of review of "close to correctness" set out by Lutfy J. (as he then was) in Lam v. Canada (1999) 164 F.T.R. 177 (F.C.T.D.).

[30]            Issue 1

Did the Citizenship Judge base the decision on erroneous findings of fact made in a perverse and capricious manner or without regard to the material submitted before her, thereby committing a reviewable error?

In her decision, the Citizenship Judge wrote:

You came to Canada alone in 1993 as a visitor and landed on 21 November 1995. You left the country after 6 days of landing. You travelled a great deal to Japan and China, which made you 575 days short of the residency requirement. In my opinion, you have very little connection to Canada. I found a great deal of discrepancy concerning your absences outside of Canada. There is no evidence of your involvement in this community, and therefore, you have not established or maintained your presence nor centralized your mode of existence 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 evidence 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 have, therefore carefully examined your case to determine whether you had established residence in Canada prior to your absences such that those absences could nevertheless be counted as periods of residence.

After having considered the evidence that I received both by way of testimony and documentation, I could not find that you have established a residence in Canada by virtue of a centralized mode of living in Canada in the four years preceding your application for Canadian Citizenship.

[31]            A review of the information submitted by the applicant indicates that he did travel a great deal to Japan and China, and that he was 573 days short of 1,095 day requirement as listed in paragraph 5(1)(c) of the Citizenship Act, supra.

[32]            As noted in the quoted passage from the Citizenship Judge, she noticed "a great deal of discrepancy concerning [the applicant's] absences outside of Canada".

[33]            The applicant's passport (which is included in the Tribunal Record) indicates a large number of discrepancies with the dates that the applicant claimed to be in Canada. For example, stamps in his passport indicate that he was in Japan on March 13, 1996, in Japan on May 19, 1996, in China on October 15, 1996, in Japan on December 7, 1996, and in China on December 12, 1996.    The applicant was in Japan on February 15, 1997, in China on March 5, 1997, entered Hong Kong on March 24, 1997, and left Hong Kong on March 29, 1997. Passport stamps further indicate that the applicant was in China on March 29, 1997 and on October 9, 1997.

[34]            These dates comprise a non-exhaustive list of examples where the applicant's passport clearly contradicts the applicant's application by indicating that the applicant was not physically present in Canada during periods claimed by the applicant.

[35]            The Citizenship Judge reported discrepancies on pages 9, 18, 22, 23 and 27 of the applicant's passport. The applicant submits that these stamps only reflect multiple entry visas issued by the Japanese Government and not the duration of time spent in Japan. I do not accept this explanation for all the discrepancies in the applicant's passport. As listed above, many of the discrepancies clearly include immigration stamps showing dates of entry and exit from Hong Kong, Japan and China during periods when the applicant claimed to be in Canada. At any rate, the applicant was rejected on the basis of the number of days the applicant admitted being absent from Canada on his application form.

[36]            The applicant claims to have been absent for 575 days in the period since landing in Canada. The discrepancies, as revealed by the applicant's passport, suggest that the true number of days absent from Canada is likely much higher than the number provided by the applicant. Even though the applicant may have been present in Canada much less than the 522 days he claimed to be present in Canada, the Citizenship Judge used the number of days submitted by the applicant to find that the applicant fell far short of the requirements of the Act. Even if the applicant's numbers are correct, the applicant has been in Canada less than half the time required under the Act to be resident in Canada.

[37]            It is a requirement of paragraph 5(1)(c) of the Act that an applicant for citizenship has three years (1,095 days) of residence in Canada in the four years immediately preceding the date of the application for citizenship.

[38]            This Court has previously held that in certain circumstances, periods of time spent away (absences) from Canada can be counted as time to accumulate the required 1,095 days of residence that are required by paragraph 5(1)(c) of the Act.

[39]            The applicant is 573 days short of the required 1,095 days required by paragraph 5(1)(c) of the Act. He was absent from Canada for 575 days in the period between his landing in Canada and his application.

[40]            The absences from Canada can only be counted towards the required residence time of 1,095 days if an applicant has centralized his or her mode of living in Canada prior to the absences.

[41]            Dubé J. of this Court stated in Canada (Minister of Citizienshp) v. Lo [1999] F.C.J. No. 130 (QL) at paragraphs 3 to 6:

Physical presence in Canada throughout the period is less essential where a person has in mind and fact settled into or maintained or centralized his or her own ordinary mode of living in this country. That was the case of the student in the Papadogorgakis case (supra), who had established a mode of living in Nova Scotia before going to study in the United States.

Unfortunately such is not the case of the respondent here who, obviously, cannot have established a mode of living in Canada in only 7 days.

Consequently her application was premature. Now that she has completed her studies and has settled in Vancouver, she may in due course make a fresh application for Canadian citizenship and undoubtedly will be successful.

Thus the appeal of the Minister is allowed.

[42]            In my opinion the applicant did not establish a centralized mode of living in Canada in the seven days that he was in Canada before his first absence of 93 days. As a result, I am not prepared to count his periods of absences from Canada towards his residence requirement. Consequently, I find that the Citizenship Judge did not err in denying citizenship to the applicant.

[43]            The applicant argues that if the test in Re Koo [1993] 1 F.C. 286 (F.C.T.D.) is applied, the applicant should succeed. The test in Re Koo, supra is stated at pages 293 to 294 as follows:

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 temporary employment abroad?

(6)            what is the quality of the connection with Canada: is it more substantial than that which exists with any other country?

[44]            I have reviewed the evidence with respect to the factors outlined in Re Koo, supra and I would come to the same conclusion as the Citizenship Judge.

[45]            Issue 2

Did the Citizenship Judge fail to observe a principle of procedural fairness by failing to confront the applicant with her concerns regarding the applicant's application?

The applicant submits that the Citizenship Judge did not give him an opportunity to explain that the stamps in his passport were the equivalent of a multiple entry visa in Canada and did not necessarily correspond with the time the applicant actually spent in Japan. The applicant submitted his passport as part of his application and the Citizenship Judge was entitled to draw conclusions from the entries in the passport. The Citizenship Judge did not, in this case, breach the rules of procedural fairness.

[46]            The application (appeal) of the applicant is dismissed.

[47]            The applicant's citizenship application was simply premature as I have no doubt that the applicant will become a citizen of Canada when he is able to satisfy the residence requirements of paragraph 5(1)(c) of the Citizenship Act, supra.

ORDER

[48]            IT IS ORDERED that the application (appeal) of the applicant is dismissed.

                                                                                   "John A. O'Keefe"             

                                                                                                      J.F.C.C.                       

Ottawa, Ontario

April 29, 2002