Ottawa, Ontario, February 9, 2007
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
and
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Wai Kwong Yu (the “Applicant”) appeals from the decision of Citizenship Judge Brenda Brown. In her decision, dated March 17, 2006, the Citizenship Judge refused the Applicant’s application for Canadian citizenship on the ground that he had failed to satisfy the residency requirements of the Citizenship Act, R.S.C. 1985, c. C-29 (the “Act”).
II. Facts
[2] The Applicant was born in Hong Kong and became a permanent resident in Canada on November 5, 1998. Upon arrival in Canada, he was accompanied by his wife and two young sons. He applied for Canadian citizenship on October 3, 2002, together with his wife and children. The application of his wife and children was subsequently separated from that of the Applicant, and citizenship was subsequently awarded to the wife and children.
[3] The relevant time period for the purpose of assessing his citizenship application was the period from November 5, 1998 to October 3, 2002, a period of 1,428 days. The Citizenship Judge determined that the Applicant’s actual physical residence in Canada was 740 days less than the residency requirement of 1,095 days as set out in the Act.
[4] She then proceeded to consider the question of whether the Applicant had centralized his way of life in Canada and proceeded to address the six factors identified in Koo (Re) (1992), 59 F.T.R. 27, pertaining to the issue of centralization of life in Canada. The Citizenship Judge addressed each of the following factors:
i) Was the individual physically present in Canada for long periods prior to his first absence? Are most of the absences recent and did they occur immediately before the application for citizenship?
ii) Where are the Applicant’s immediate family and dependants (and extended family) resident?
iii) Does the pattern of physical presence in Canada indicate a returning home or merely visiting the country?
iv) What is the extent of the physical absence?
v) Is the physical absence caused by a clearly temporary situation?
vi) What is the quality of the connection with Canada? Is it more substantial than that which exists with any other country?
[5] After considering the evidence before her, including certain documents that had been submitted by the Applicant’s representative, Ms. Bertha Mok of Alexander Ng Notary Corporation, the Citizenship Judge concluded that the Applicant had failed to show that he had centralized his mode of living in Canada. She concluded that his absences from Canada, for the purpose of assisting in the operation of his father’s business in Hong Kong, were more than a temporary situation. She also determined that the Applicant’s connection with Canada was not more substantial than his connection with Hong Kong.
[6] Following her assessment of the evidence, the Citizenship Judge dismissed the Applicant’s application.
[7] She then went on to consider the positive exercise of discretion, pursuant to subsections 5(3) and 5(4) of the Act, as a means of recommending the grant of citizenship to the Applicant. The Citizenship Judge found that the Applicant had failed to submit any evidence that would justify the positive exercise of discretion in that regard and said the following:
After having carefully considered all the circumstances of the applicant’s case, I have decided that there is no reason to make a favourable recommendation for the use of discretion, since there was no evidence of any health disability, any special or unusual hardship or services of an exceptional value to Canada.
III. Summary of Arguments
A. The Applicant
[8] In this appeal, the Applicant raises two issues. First, he submits that the Tribunal Record that was before the Citizenship Judge was incomplete. He says that he had submitted two statutory declarations dated January 12, 2004, to the Citizenship and Immigration Office in Vancouver. In his affidavit, filed as part of the Record for this appeal, the Applicant stated that at some earlier time, the two statutory declarations were on the file. These statutory declarations were made on January 12, 2004, one by the Applicant and the other by his wife. The Applicant now argues that because these documents are not included in the Tribunal Record, it must be presumed that this evidence was not before the Citizenship Judge when she made her decision.
[9] The Applicant argues that this evidence is relevant to the assessment of the degree to which he had centralized his life in Canada because the statutory declarations offer an explanation for his temporary absences from Canada and further, demonstrate his strong emotional ties to his home in Canada.
[10] Relying on the decision of this Court in Ahmed v. Canada (Minister of Citizenship and Immigration), 2003 FCT 180 the Applicant argues that the incomplete Record gives rise to a breach of natural justice. He submits that the decision should be set aside on this ground alone.
[11] Next, the Applicant submits that the Citizenship Judge erred in misstating the relevant time period for the purpose of assessing the evidence before her. He notes that she initially identified the relevant time period as being November 5, 1998 to October 3, 2002, that is the time period beginning when the Applicant received permanent resident status in Canada and up to the time that he applied for Canadian citizenship.
[12] The Applicant then argues that the Citizenship Judge referenced facts that occurred outside of this relevant time period. Specifically, he suggests that the Citizenship Judge considered facts corresponding to the period after August 2004 and up to the time of her decision. In this regard, the Applicant refers to the Citizenship Judge’s references to the current place of residence of his family and dependents, as well as to the fact that he is currently living in Hong Kong in order to assist with his father’s business.
B. The Respondent
[13] The Minister of Citizenship and Immigration (the “Respondent”) addresses three issues in his submissions. First, he submits that the applicable standard of review in this case is that of reasonableness simpliciter, on the basis that an assessment of whether a person has satisfied the requirements of the Act involves a question of mixed fact and law. In this regard, the Respondent relies on Canada (Minister of Citizenship and Immigration) v. Fu, 2004 FC 60; Chen v. Canada (Minister of Citizenship and Immigration), 2006 FC 85 and Rasaei v. Canada (Minister of Citizenship and Immigration), 2004 FC 1688.
[14] Next, the Respondent submits that the Citizenship Judge did not breach any principles of natural justice. Although he acknowledges that the two statutory declarations in issue were not before the Citizenship Judge at the time of her decision, the information contained in those declarations was before the decision-maker. The Respondent says that the two statutory declarations addressed the reasons for the Applicant’s travel outside Canada, that is the ill health of his parents and his obligations to assist with the family business in Hong Kong.
[15] The Respondent argues that all this evidence was before the Citizenship Judge, notwithstanding the absence of the two statutory declarations from the Tribunal Record. Furthermore, the Applicant appeared before the Citizenship Judge and had the opportunity to advance any necessary information for the purpose of succeeding in his application for citizenship.
[16] Finally, the Respondent argues that the Applicant’s submissions with respect to the Citizenship Judge’s alleged misapprehension of the relevant time frame are without foundation. He submits that the Citizenship Judge, in her decision, consistently refers to the four year period immediately preceding the Applicant’s application for citizenship as being the relevant time frame. The Respondent argues that there was no merit in this submission.
IV. Discussion and Disposition
[17] I will first address the relevant standard of review. Essentially, the mandate of a Citizenship Judge is to assess the evidence submitted in support of an application for citizenship, in light of the statutory requirements, I agree with the submissions of the Respondent that the applicable standard of review in this case is reasonableness simpliciter, since the Citizenship Judge is required to consider a question of mixed fact and law.
[18] I will first address the argument advanced by the Applicant concerning an alleged breach of natural justice arising from the absence of the two statutory declarations from the Tribunal Record.
[19] I agree wholly with the submissions of the Respondent that all the information contained in those documents was otherwise before the Citizenship Judge. The Tribunal Record contains material that was released to the Applicant, upon his request pursuant to the Access to Information Act, R.S.C. 1985, c. A-1. The Tribunal Record refers to an access request that was made in April 2004. Enclosed in the documents that were released following that request is a letter, dated January 12, 2004, from Ms. Mok, the Applicant’s representative
[20] That letter was addressed to Citizenship and Immigration Canada, to the attention of A. Carmichael, Citizenship Officer, in Vancouver, British Columbia. The letter refers to a request from Citizenship and Immigration for production by the Applicant of his Statement of Travel Records (“STRs”) and copies of Passports for the Applicant and his wife. In response to that request, Ms. Mok forwarded certain documents, including STRs for the Applicant and his wife and copies of their Passports. The letter also refers to additional documentation and says as follows:
You may be aware that the absences computed from the STRs do not correspond with those in the application, the reasons and explanations are set out in client’s Statutory Declaration (SD) attached herewith, and the following copies are additional information to be read with:
a) 2 Computation of Present & Absent as per STR;
b) Notice of Assessment of Mr. Yu for Tax Year from 1999 – 2002;
c) State of Title Certificate in name of our clients as joint tenants; and
d) 2 doctor certificates relating to the health condition of Mr.Yu’s parents.
[21]
All of
these documents, that is documents a) to d), are included in the materials that
were released pursuant to the access request made by the Applicant. The two
statutory declarations referenced in the letter of Ms. Mok are not included in
the Tribunal Record that was produced pursuant to the Federal Courts Rules,
SOR/98-106, as amended (the “Rules”). However, according to the Applicant’s
affidavit, these statutory declarations were provided to Ms. Mok when she
received a response to the access request. Paragraph 23 of that affidavit
provides as follows:
Further I am advised by Ms. Bertha Mok that these two statutory declarations were received by the citizenship office because copies of same were provided to her in a response to an Access to Information Act request she made on April 14, 2004 for copies of the Citizenship records for me and my wife. It is from that Access to Information Act response that the copies in Exhibit “A” have come from.
[22] In spite of the absence of the statutory declarations from the Tribunal Record, I am satisfied that the information contained in the statutory declarations of the Applicant and his wife was otherwise before the Citizenship Judge. She fully appreciated the reason for the Applicant’s absences from Canada, that is to care for his ailing parents in Hong Kong and to run the family business in Hong Kong, for the purpose of generating income for his immediate family and his extended family.
[23] In these circumstances, the absence of the statutory declarations from the Tribunal Record had no material effect. There was no breach of natural justice. In any event, not every breach of natural justice gives rise to a remedy; see Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994]1 S.C.R. 202. The Applicant’s submissions in this regard appear to elevate form over substance. The relevant evidence was before the Citizenship Judge and was duly assessed by her.
[24] Finally, I turn to the Applicant’s submissions concerning the alleged miscalculation of time by the Citizenship Judge. I agree with the Respondent that there is no merit in this argument. The Citizenship Judge correctly identified the relevant time periods, that is the four year period immediately preceding the Applicant’s application for Canadian citizenship. She did not err in this regard.
[25]
It follows
that the Applicant’s appeal is dismissed, no order as to costs.
ORDER
The appeal is dismissed, no order as to costs.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-844-06
STYLE OF CAUSE: Wai Kwong Yu v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: November 30, 2006
APPEARANCES:
|
Mr. Douglas Cannon |
FOR THE APPLICANT |
|
Ms. Liliane Bantourakis |
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
|
Elgin, Cannon & Associates Vancouver, B.C. |
FOR THE APPLICANT |
|
John H. Sims, Q.C. Deputy Attorney General of Canada |
FOR THE RESPONDENT |