Date: 20050601
Docket: T-713-04
Citation: 2005 FC 785
Ottawa, Ontario, this 1st day of June, 2005
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
HOYEE FLORA LEE
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an appeal by the Minister under section 21 of the Federal Courts Act, R.S.C. 1985, c. F-7 and subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 (the "Act"), of the decision dated February 2, 2004 of a Citizenship Judge wherein the respondent's application for Canadian citizenship was granted.
[2] The applicant seeks an order quashing the decision of the Citizenship Judge dated February 2, 2004 and an order giving the decision that the Citizenship Judge should have given, namely, refusing the respondent's application for Canadian citizenship.
Background
[3] Ms. Hoyee Flora Lee (the "respondent") is a citizen of the People's Republic of China. Between 1982 and 1985, she attended the University of Windsor. She then returned to Hong Kong for study and obtained a Master's degree. She returned to Canada in July 1991 and married her husband in August 1991. She was granted permanent residence in Canada on October 11, 1993. From September 1994 to December 2002, the respondent attended Fuller Theological Seminary in California for doctoral studies. The respondent had a Returning Resident Permit while at school in California. The respondent applied for Canadian citizenship on February 12, 2003 indicating that in the four years preceding the date of application, she had been in Canada for 45 days and absent from Canada for 1,415 days. The respondent's citizenship application was approved on February 2, 2004.
[4] This is the appeal from that decision.
Reasons of the Citizenship Judge
[5] In determining whether the respondent met the residency requirements, including the question of centralizing the mode of existence, the Citizenship Judge utilized the six part test set out in Re Koo, [1993], 1 F.C. 286 (T.D.). His analysis was as follows:
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?
She was in Canada for 2 years before she left to study in USA, the study work that she was going for can't be accomplished in Canada.
Where are the applicant's immediate family and dependants (and extended family) resident?
The husband is in Canada. Her parents Father passed away her Mother lives in H.K.. Her sister and brother are in H.K.
Does the pattern of physical presence in Canada indicate a returning home or merely visiting the Country?
She has been in Canada since she finished studying which was Dec 2002.
What is the extent of the physical absence ? (number of days away from Canada VS number of days present in Canada).
46 days in Canada and 1414 days out of Canada.
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?
Her absence was while she was studying. She is finished. She want to set up her own psychology clinic in Van.
What is the quality of the connection with Canada? Is it more substantial than that which exists with any other country?
She loves Canada, she married a Canadian.
[6] The Citizenship Judge then made the following determination:
Decision
She was in Canada for 730 days before she left to go to school in a special school to study head injuries. When she finished school she came back to Canada. Has been here for over a year. She wants to set up a business in Canada but can't if she is not a Canadian citizen. I approve her application for Canadian citizenship under sec 5(4). She would be a great asset to Canada with her knowledge of head injuries.
Issues as Framed by the Applicant
[7] 1. Did the Citizenship Judge err in law by approving Ms. Lee's application under subsection 5(4) of the Act, without jurisdiction to do so?
2. Did the Citizenship Judge err in determining that Ms. Lee had met the residency requirements for obtaining Canadian citizenship?
Applicant's Submissions
[8] Standard of review
The applicant submitted that the issue of jurisdiction pursuant to subsection 5(4) of the Act is a question of law and therefore the standard of review is correctness (see Wang v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1030 (T.D.)(Q.L.)).
[9] The applicant further submitted that as to the issue of the residence requirement, this Court has recently held that the standard of review of a Citizenship Judge's decision is reasonableness simpliciter (see Canada (Minister of Citizenship and Immigration) v. Fu [2004] F.C.J. No. 88 (T.D.) (Q.L.)).
[10] Issue 1
The applicant submitted that by purporting to approve the application under subsection 5(4) of the Act, the Citizenship Judge acted without jurisdiction. Under section 15 of the Act, a Citizenship Judge may recommend to the Minister that discretion be exercised under subsection 5(4) of the Act to approve an application for citizenship. Only the Governor in Council may direct that citizenship be granted under subsection 5(4) of the Act.
[11] Issue 2
The applicant submitted that a citizenship applicant must meet two criteria in order to satisfy the residence requirement under paragraph 5(1)(c) of the Act; (i) the applicant must establish a centralized mode of living in Canada before they leave Canada, and (ii) the applicant must maintain their centralized mode of living in Canada during their absence from Canada (Re Koo, supra, Wu v. Canada (Minister of Citizenship and Immigration) 2003 FCT 435).
[12] The applicant submitted that the Citizenship Judge erred in mis-applying the test in Re Koo, supra, and failed to properly consider the six factors set out therein. The Citizenship Judge failed to carry out a proper analysis of the quality of the respondent's connection to Canada and whether the respondent had centralized her mode of living in Canada.
[13] The applicant submitted that in regards to the third Re Koo, supra, factor, the Citizenship Judge merely stated that the respondent had been in Canada since she finished studying in December 2002. He failed to consider, inter alia, variables such as whether she had returned to Canada at all after she left in September 1994, her reasons for not returning, her efforts to return, and whether her pattern of returning indicated a mere visit or returning home.
[14] In regards to the fourth Re Koo, supra, factor, the Citizenship Judge acknowledged that the respondent had only been in Canada for 46 days but failed to weigh the extent of the respondent's absence against the other factors.
[15] In regards to the sixth Re Koo, supra, factor, the Citizenship Judge merely noted, that she loves Canada, she married a Canadian. The Citizenship Judge failed to consider the quality of the respondent's connections to Canada and whether it was more substantial than with any other country.
[16] The applicant submitted that a Returning Residence Permit issued under the transitional provisions of IRPA confirms that the respondent was a permanent resident at the time she applied for Canadian citizenship. It does not, however, show whether the respondent has centralized her mode of living in Canada and maintained her ties to Canada in such a way as to become "Canadianized"(see Wan v. Canada (Minister of Citizenship and Immigration) 2004 FC 65). This Court has held that Returning Resident Permits are not relevant to a Citizenship Judge's determination (Sharma v. Canada (Minister of Citizenship and Immigration), 2003 FC 1384).
Respondent's Submissions
[17] The respondent submitted that pursuant to subsections 382(2) and (3) of the Immigration and Refugee Protection Regulations, S.O.R. 2002/227, (the "IRPA Regulations"), she has fulfilled her residency requirement as during her absence from Canada while studying in the United States, she had a Returning Resident Permit. A permanent resident should not be penalized for pursuing lengthy professional training outside of Canada.
[18] The respondent submitted that in regards to the Citizenship Judge's decision to approve her application for citizenship under subsection 5(4) of the Act, the approval was appropriate, although the reason for approval might be faulty.
[19] The respondent submitted that she maintained her ties to Canada while undertaking professional training in the United States by: (i) keeping bank accounts in Canada and having active transactions, (ii) applying for Returning Resident Permits since resuming graduate studies in the United States, (iii) making visits to Canada (as evidenced by the dates stamped on her old certificate of identity issued by the Hong Kong government in 1990), and (iv) asking her husband to open a storage unit for their furniture in 1998 so that they could furnish their home upon her return to Vancouver.
[20] The respondent submitted that what qualifies as "Canadianized" depends upon a person's experiences in, and relationship with, Canada. The respondent submitted that she is truly "Canadianized" through her undergraduate education in Canada in her mid 20s, living in Canada, as well as her life experience and education in North America for an extended period of time.
[21] The respondent submitted that she was absent from Canada for an extended period of time for good reasons. She was pursuing her doctoral studies in a graduate school of her choice in the United States (the Fuller Theological Seminary Graduate School of Psychology). In addition, in 1993, she was injured in a motor vehicle accident which slowed down her studies and in 2001, her academic mentor resigned necessitating her to abandon the project and await the return from sabbatical of a new mentor. She had tried to transfer to Canadian universities in 1993, but was advised that she would have to redo her clinical training from the start.
[22] The respondent submitted that her address in Scarborough Ontario is
not just a mailing address.
Relevant Statutory Provisions
[23] Subsections 5(1), 5(4) and 15(1) of the Citizenship Act and Section 28 of the Immigration and Refugee Protection Act, S.C. 2001, C. 27 ("IRPA") and 328 of the IRPA Regulations respectively, state as follows:
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5. (1) The Minister shall grant citizenship to any person who
(a) makes application for citizenship;
(b) is eighteen years of age or over;
(c) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, and has, within the four years immediately preceding the date of his or her application, accumulated at least three years of residence in Canada calculated in the following manner:
. . .
(4) In order to alleviate cases of special and unusual hardship or to reward services of an exceptional value to Canada, and notwithstanding any other provision of this Act, the Governor in Council may, in his discretion, direct the Minister to grant citizenship to any person and, where such a direction is made, the Minister shall forthwith grant citizenship to the person named in the direction.
15. (1) Where a citizenship judge is unable to approve an application under subsection 14(2), the judge shall, before deciding not to approve it, consider whether or not to recommend an exercise of discretion under subsection 5(3) or (4) or subsection 9(2) as the circumstances may require. |
5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois:
a) en fait la demande;
b) est âgée d'au moins dix-huit ans;
c) est un résident permanent au sens du paragraphe 2(1) de la Loi sur l'immigration et la protection des réfugiés 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:
. . .
(4) Afin de remédier à une situation particulière et inhabituelle de détresse ou de récompenser des services exceptionnels rendus au Canada, le gouverneur en conseil a le pouvoir discrétionnaire, malgré les autres dispositions de la présente loi, d'ordonner au ministre d'attribuer la citoyenneté à toute personne qu'il désigne; le ministre procède alors sans délai à l'attribution.
15. (1) Avant de rendre une décision de rejet, le juge de la citoyenneté examine s'il y a lieu de recommander l'exercice du pouvoir discrétionnaire prévu aux paragraphes 5(3) ou (4) ou 9(2), selon le cas.
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28. (1) A permanent resident must comply with a residency obligation with respect to every five-year period.
(2) The following provisions govern the residency obligation under subsection (1):
(a) a permanent resident complies with the residency obligation with respect to a five-year period if, on each of a total of at least 730 days in that five-year period, they are
(i) physically present in Canada,
(ii) outside Canada accompanying a Canadian citizen who is their spouse or common-law partner or, in the case of a child, their parent,
(iii) outside Canada employed on a full-time basis by a Canadian business or in the public service of Canada or of a province,
(iv) outside Canada accompanying a permanent resident who is their spouse or common-law partner or, in the case of a child, their parent and who is employed on a full-time basis by a Canadian business or in the public service of Canada or of a province, or
(v) referred to in regulations providing for other means of compliance;
(b) it is sufficient for a permanent resident to demonstrate at examination
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28. (1) L'obligation de résidence est applicable à chaque période quinquennale.
(2) Les dispositions suivantes régissent l'obligation de résidence:
a) le résident permanent se conforme à l'obligation dès lors que, pour au moins 730 jours pendant une période quinquennale, selon le cas:
(i) il est effectivement présent au Canada,
(ii) il accompagne, hors du Canada, un citoyen canadien qui est son époux ou conjoint de fait ou, dans le cas d'un enfant, l'un de ses parents,
(iii) il travaille, hors du Canada, à temps plein pour une entreprise canadienne ou pour l'administration publique fédérale ou provinciale,
(iv) il accompagne, hors du Canada, un résident permanent qui est son époux ou conjoint de fait ou, dans le cas d'un enfant, l'un de ses parents, et qui travaille à temps plein pour une entreprise canadienne ou pour l'administration publique fédérale ou provinciale,
(v) il se conforme au mode d'exécution prévu par règlement;
b) il suffit au résident permanent de prouver, lors du contrôle, qu'il se conformera à l'obligation pour la période quinquennale suivant l'acquisition de son statut, s'il est résident permanent depuis moins de cinq ans, et, dans le cas contraire, qu'il s'y est conformé pour la période quinquennale précédant le contrôle;
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(i) if they have been a permanent resident for less than five years, that they will be able to meet the residency obligation in respect of the five-year period immediately after they became a permanent resident;
(ii) if they have been a permanent resident for five years or more, that they have met the residency obligation in respect of the five-year period immediately before the examination; and
(c) a determination by an officer that humanitarian and compassionate considerations relating to a permanent resident, taking into account the best interests of a child directly affected by the determination, justify the retention of permanent resident status overcomes any breach of the residency obligation prior to the determination. |
c) le constat par l'agent que des circonstances d'ordre humanitaire relatives au résident permanent - compte tenu de l'intérêt supérieur de l'enfant directement touché - justifient le maintien du statut rend inopposable l'inobservation de l'obligation précédant le contrôle. |
[24] Section 328 of the IRPA Regulations states:
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328. (1) A person who was a permanent resident immediately before the coming into force of this section is a permanent resident under the Immigration and Refugee Protection Act.
(2) Any period spent outside Canada within the five years preceding the coming into force of this section by a permanent resident holding a returning resident permit is considered to be a period spent in Canada for the purpose of satisfying the residency obligation under section 28 of the Immigration and Refugee Protection Act if that period is included in the five-year period referred to in that section. |
328. (1) La personne qui était un résident permanent avant l'entrée en vigueur du présent article conserve ce statut sous le régime de la Loi sur l'immigration et la protection des réfugiés.
(2) Toute période passée hors du Canada au cours des cinq années précédant l'entrée en vigueur du présent article par la personne titulaire d'un permis de retour pour résident permanent est réputée passée au Canada pour l'application de l'exigence relative à l'obligation de résidence prévue à l'article 28 de la Loi sur l'immigration et la protection des réfugiés pourvu qu'elle se trouve comprise dans la période quinquennale visée à cet article. |
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(3) Any period spent outside Canada within the two years immediately following the coming into force of this section by a permanent resident holding a returning resident permit is considered to be a period spent in Canada for the purpose of satisfying the residency obligation under section 28 of the Immigration and Refugee Protection Act if that period is included in the five-year period referred to in that section. |
(3) Toute période passée hors du Canada au cours des deux années suivant l'entrée en vigueur du présent article par la personne titulaire d'un permis de retour pour résident permanent est réputée passée au Canada pour l'application de l'exigence relative à l'obligation de résidence prévue à l'article 28 de la Loi sur l'immigration et la protection des réfugiés pourvu qu'elle se trouve comprise dans la période quinquennale visée à cet article. |
Analysis and Decision
[25] Standard of Review
The standard of review to be applied to the jurisdictional issue is correctness and the standard of review to be applied to the Citizenship Judge's decision with respect to residency requirements is reasonableness simpliciter (Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 and Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226).
[26] I will deal firstly with Issue 2.
Did the Citizenship Judge err in determining that Ms. Lee had met the residency requirements for obtaining Canadian citizenship?
The respondent only had 45 (or 46) days of actual residence in Canada during the four years immediately preceding her application for citizenship. Paragraph 5(1)(c) of the Act requires that the applicant be a permanent residence and have accumulated at least three years (1,095 days) of residence in Canada in the four years immediately preceding the date of her application.
[27] The respondent submitted that because she had a returning residence permit, section 328 of the IRPA Regulations essentially deems her to have been resident in Canada during her absence, and therefore, she has met the residency requirements for citizenship. I do not agree with the respondent. Section 328 of the IRPA Regulations are transitional and only relate to meeting the residency requirements under section 28 of IRPA for retaining permanent residency status when you are the holder of a returning resident permit. It does not relate to the residency requirements for the granting of citizenship.
[28] The Citizenship Act, supra, requires that a successful applicant for citizenship be a permanent resident of Canada and also that the applicant has accumulated 1,095 days of residency in Canada in the four years immediately preceding the date of her application for citizenship. The respondent thus had to show that she met the residence requirements by having 46 days of actual residence in Canada in the four years immediately preceding her application.
[29] In the relevant time period from February 12, 1999 to February 12, 2003, the respondent only had 46 days of residence in Canada. In order to grant the respondent citizenship, the Citizenship Judge would have to have had to find that the respondent had established a centralized mode of living in Canada before she returned to the United States for her studies and that she maintained this centralized mode of living during her absence.
[30] The Citizenship Judge applied the factors of Re Koo in order to determine whether Canada was the country in which the respondent had centralized and maintained her mode of living. I am of the view that the Citizenship Judge must do a full analysis of all of the Re Koo factors, especially when the respondent has only been actually resident in Canada for 46 days in the four years immediately preceding the date of her application.
[31] In response to factor 3 of the Re Koo analysis, "does the pattern of physical presence in Canada indicate a returning home or merely visiting the country?", the Citizenship Judge stated: "She has been in Canada since she finished studying which was December 2002".
[32] The Citizenship Judge failed to provide any analysis of the time period the respondent was out of the country from 1994 (or at least during the totality of the four years preceding her application for citizenship). The only period he addressed was the short period immediately prior to her application. That she was at the time of the application physically present in Canada does not address the question of the pattern of physical presence during the four year period in question. The Citizenship Judge failed to address the questions of whether (if at all), or how frequently, the respondent returned to Canada during the preceding four years.
[33] In response to factor 6, "What is the quality of connection with Canada? Is it more substantial than that which exists with any other country?", the Citizenship Judge stated: "She loves Canada, she married a Canadian".
[34] That the respondent "loves Canada and married a Canadian" does not address the question of the quality of her connection to Canada, or whether it is more substantial than that which exists with any other country. Marrying a Canadian citizen does not in and of itself, for example, provide prima facie proof that a person's connection to Canada is more substantial than that which exists with any other country. An analysis is required and the Citizenship Judge failed to do so.
[35] The Citizenship Judge was required to do a full analysis of all the factors which, in my opinion, did not happen. I am of the view that the Citizenship Judge erred in not doing a proper analysis of the Re Koo factors.
[36] Because of my finding on Issue 2, I need not deal with Issue 1.
[37] The appeal of the applicant is therefore allowed and the matter is returned to a different Citizenship Judge for redetermination.
ORDER
[38] IT IS ORDERED that the appeal of the applicant is allowed and the decision of the Citizenship Judge is set aside and the matter is returned to a different Citizenship Judge for redetermination.
"John A. O'Keefe"
J.F.C.
Ottawa, Ontario
June 1, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-713-04
STYLE OF CAUSE: MINISTER OF CITIZENSHIP AND
IMMIGRATION
- and -
HOYEE FLORA LEE
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: March 10, 2005
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
APPEARANCES:
Caroline Christiaens
FOR APPLICANT
Hoyee Flora Lee
FOR RESPONDENT
On Own Behalf
SOLICITORS OF RECORD:
John H. Sims, Q.C.
Deputy Attorney General of Canada
FOR APPLICANT
Hoyee Flora Lee
Vancouver, British Columbia
FOR RESPONDENT
On Own Behalf