Date: 20050713
Docket: T-1797-04
Citation: 2005 FC 981
CALGARY, Alberta, July 13, 2005.
PRESENT: THE HONOURABLE MR. JUSTICE GIBSON
BETWEEN:
LISHENG WANG
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
INTRODUCTION
[1] These reasons follow the hearing of an appeal pursuant to subsection 14(5) of the Citizenship Act[1] from a decision of a Citizenship Judge dated the 18th of August, 2004 wherein the learned Citizenship Judge denied the Applicant's application for Canadian citizenship.
BACKGROUND
[2] The Applicant arrived in Canada as a permanent resident on the 31st of August, 1999. Less than a month later, he left Canada for the People's Republic of China in pursuit of his employment. Although he changed employer in October of 2000, he has continued to spend the greater part of his time in China in the pursuit of his employment. Since October of 2000, his employer has been Propak Systems Ltd., an Albertan corporation with its principal office located in Airdrie, Alberta. Propak provides engineering, design, fabrication and construction and maintenance services to the oil and gas processing industry worldwide. It has substantial sales and operations in China. In a letter dated the 7th of July, 2004, the President of Propak describes the Applicant as "...a valued member of the team and engineers who effectively build and service our products. He is most often based from our China Office in Beijing...".
[3] The Applicant's wife and son live in Calgary. They are both Canadian citizens. The Applicant's wife works for the same employer as her husband. At the time the Applicant applied for Canadian citizenship, his son was enrolled in engineering studies at the University of Calgary.
[4] According to the Applicant's application for citizenship, he has parents and a sister who live in the People's Republic of China and who are citizens of that country. The Applicant's in-laws are permanent residents of Canada.
[5] The Applicant has all of the usual "passive" indicia of establishment in Canada. He owns two (2) houses in Calgary, one (1) of which he rents. He owns and drives two (2) cars in Canada. He pays Canadian taxes. He has a Registered Retirement Savings Plan. He has additional investments in Canada as well as credit cards and health coverage and the like.
[6] The Applicant applied for Canadian citizenship on the 10th of June, 2003, some 1,379 days after being landed in Canada. Of those days, he was absent from Canada for 695 days and present in Canada some 684 days. Thus, against the criterion for a grant of Canadian citizenship that is set out in paragraph 5(1)(c) of the Citizenship Act, the Applicant was 418 days short of the required number of days of residence in Canada if residence is equated with physical presence.
THE DECISION UNDER APPEAL
[7] The learned Citizenship Judge, in addressing the residency requirement as an element of her decision, utilized a "template" form referring to Re Koo[2] and citing the six (6) questions posed in the reasons of Justice Reed for that decision as a non-exclusive list of the factors to be considered in arriving at a determination of whether or not an applicant has demonstrated that Canada is the country in which he or she has centralized his or her mode of existence. Following each of the six (6) questions recited in the template form, space is left for the Citizenship Judge to respond to each question. There then follows a further blank space for the recording of a conclusion.
[8] The Citizenship Judge recorded comments following each of the six (6) questions. Regrettably, the comments are, in most cases, not directly responsive to the questions. Indeed, in relation to the second question regarding the "quality of the connection with Canada" and its "substantiality" in relation to the Applicant's connection with any other country, while the learned Citizenship Judge notes that the Applicant's parents and sister reside in China and are citizens of that country, it provides no analysis of the Applicant's relationship to those relatives when he is in China. It would appear that there was no evidence before the learned Citizenship Judge as to that relationship.
[9] Following the responses to the six (6) questions, in the space for general comment, the Judge wrote:
Client stated he thought it was early to apply for citizenship - well on for transfer to Canada. Pays Canadian taxes, electric bills, phone, gas & cable payments, pay AHC. Propak packages American & Canadian equipment for China market also manufacture [sic] seventy percent (70%) of machines in Canada. Company sent client to China to hire new staff since there was ongoing disagreement between staff and management - mgnt resigned and client was able to rectify the situation.
Client states he can come back to Canada & work for the same company. He stated if he does not his wife will want to separate & get a divorce.
Not recommended for citizenship, suggest he return to Canada where his company says they will employ him. Not recommended for citizenship.
ANALYSIS
[10] In Re Koo, Justice Reed phrases the test for establishment of whether or not the residency requirement of paragraph 5(1)(c) of the Citizenship Act has been met notwithstanding that the specified number of days of physical presence is insufficient as "...whether it can be said that Canada is the place where the Applicant regularly, normally or customarily lives or whether Canada is the country in which he or she has centralized his or her mode of existence".
[11] I adopt the words of my colleague Justice Shore in Morales v. Canada (Minister of citizenship and Immigration)[3] where he wrote at paragraph 6:
The standard of review in citizenship appeals is the standard of reasonableness simpliciter because the question of whether a person has met the residency requirement under the Act is a question of mixed fact and law and citizenship judges are owed some deference by virtue of their special degree of knowledge and experience...
[citations omitted]
[12] Against a standard of review of reasonableness simpliciter, I am satisfied that this appeal must succeed. Although the learned Citizenship Judge purports to rely on the test in Re Koo for determining whether the residency element of the test is met, as she was entitled to do, her reasons simply do not disclose that she understood the test or properly applied the test to the evidence before her.
[13] In the result, this appeal will be allowed. Counsel for the Applicant urged that the Court should substitute for the decision of the learned Citizenship Judge, the decision and recommendation that, in the view of the Court, should have been made. The Court declines to do so. The materials before the Court are insufficient to allow it to do so. In the result, the decision under review will be set aside and the Applicant's application for Canadian citizenship will be referred back to the Citizenship Court for rehearing and redetermination, if required, by a different judge.
"Frederick E. Gibson"
JUDGE
Calgary, Alberta
July 13, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1797-04
STYLE OF CAUSE: LISHENG WANG v. MCI
PLACE OF HEARING: CALGARY, ALBERTA
DATE OF HEARING: July 11, 2005
REASONS FOR
JUDGMENT BY: GIBSON, J.
APPEARANCES:
Mr. Stephen G. Jenuth FOR APPLICANT
Mr. W. Brad Hardstaff FOR RESPONDENT
SOLICITORS OF RECORD:
Ho MacNeil Jenuth
Calgary, Alberta FOR APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT