Date: 20010601
Docket: T-1242-00
Neutral Citation: 2001 FCT 579
BETWEEN:
CHANG FU HSU
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] Chang Fu Hsu (the "Applicant) appeals from the decision of Citizenship Judge Barbara Scott dated June 13, 2000, wherein the Citizenship Judge denied his application for Canadian citizenship. The issue arising from this appeal is whether the Citizenship Judge erred in law in her interpretation or application of the legal test she adopted to determine the eligibility of the Applicant to become a Canadian citizen.
FACTS
[2] The Applicant, a citizen of Taiwan, was landed in Canada on May 7, 1996. His two daughters arrived in Canada on June 12, 1996, also as landed immigrants. The Applicant's wife and daughters have now obtained Canadian citizenship.
[3] The Citizenship Judge made certain factual findings which appear from her reasons. The Applicant does not seriously challenge these findings but does object to the conclusions drawn from them. In particular, the Applicant submits that the Citizenship Judge unduly relied on the calculation of time which the Applicant physically spent in Canada during the four years preceding his application for citizenship, yet purported to apply the "substantial connection" test in assessing his application, without actually conducting a comparative analysis between the connection to Canada and his connection to any other country.
[4] The case law on citizenship appeals has clearly established that there are three legal tests which are available to determine whether an applicant has established residence within the requirements of the Citizenship Act, R.S.C. 1985, c. 29. In this regard, see Lam v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 177 (T.D.). According to that case, a Citizenship Judge may adopt either the strict count of days, consideration of the quality of residence or, analysis of the centralization of an applicant's mode of existence in this country. At paragraph 14, Justice Lutfy (as he then was) said as follows:
[14] Section 14 (6) of the Act is intended to preclude any appeal from the decision of the Federal Court - Trial Division. As a result, the Court of Appeal has not been called upon to resolve this conflicting case law, judges of the Trial Division have not been fettered in expressing their own view. 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. Until now, Federal Court trial judges, presiding over the de novo hearings, have generally felt free to substitute their view of the residency requirement for the one expressed in the decision under appeal. The divergence of views, both in this Court and among citizenship judges, has brought uncertainty to the administration of justice in these matters.
[5] The foregoing paragraph recognizes the authority of the Citizenship Judge to adopt one of three possible tests and the subsequent decision will not be subject to judicial interference as long as the record indicates that the chosen test was properly applied.
[6] In the present case, the Citizenship Judge expressed the test and her conclusion as to its applicability is as follows:
Given this review, I have concluded that, in the four years preceding the date of your application for citizenship, you did not meet the condition of centering your life in Canada, nor have you demonstrated a more substantial connection to Canada than to any other country. Your connection to this country inevitably weakened, when you began the practice of spending more time for business purposes in Taiwan and/or Hong Kong than in Canada - ten days in this country for every 45 (approximately) days elsewhere. Your connection to this country, in my view, is a connection to your wife and daughters - and a connection to family is not, in and of itself, a connection to Canada. It is very difficult to absorb Canadian values and to integrate oneself into Canadian society when there are lengthy absences. Regretfully, for the reasons cited above - because you do not meet the residence requirement under paragraph 5 (1) (c) of the Citizenship Act - I do not approve your application.
[7] In my opinion, it appears that the Citizenship Judge blended two tests, that is the strict calculation of time with the substantial connection test expressed in Re: Koo, [1993] 1 F.C. 286 (T.D.). While the reasons reflect consideration of the questions posed in Re: Koo, supra, there is no evidence in the record or the reasons that the Citizenship Judge fully or openly addressed her mind to the issue of "connection" to another country. Such analysis, in my opinion, would be required before the Citizenship Judge could reach the conclusion which she did, that is that the Applicant had failed to demonstrate a "known substantial connection to Canada than to any other country". I adopt the words of Justice Lemieux in Re: Agha (1999), 166 F.T.R. 245 (T.D.) at paragraph 49:
The lack of the Citizenship judge's analysis in this case is an error in principle which eliminates any reluctance I might have had in coming to a different factual conclusion notwithstanding the trial de novo context.
[8] In view of the misapplication of the test to determine residency requirements, I am of the view that the Citizenship Judge has erred in law and that this appeal should be allowed.
ORDER
The appeal is allowed.
"E. Heneghan"
J. F. C. C.