Date: 20001124
Docket: T-213-00
BETWEEN:
LI ZHANG
Appellant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
NADON. J.
[1] This is an appeal by the appellant from a decision of Citizenship Judge William L. Day, dated December 14, 1999 pursuant to which his application for Canadian citizenship was refused. This appeal raises the following issues:
| 1. Whether the Citizenship Judge erred in finding that the appellant failed to meet the residency requirements of the Citizenship Act; |
| 2. Whether the Citizenship Judge failed to consider the question of whether the appellant had provided services of exceptional value, or erred in finding that there was no evidence before him of the appellant having provided services of exceptional services to Canada and, if so, the appropriate remedy for such failure or error. |
[2] The appellant, born on March 27, 1953, is a citizen of the Peoples' Republic of China. He was landed in Canada on July 29, 1995. On October 10, 1998 he submitted an application for citizenship. Between July 29, 1995 and October 10, 1998 the appellant was present in Canada for 456 days and absent for 712 days. During that period of time, he made 11 trips all of which, save 1, were on account of his business commitments. Thus, the appellant is well short of the number of days required under the residency requirements set out at section 5(1)(c) of the Citizenship Act, which reads as follows:
| 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; |
[3] By his decision dated December 14, 1999 the Citizenship Judge concluded that the appellant did not meet the residency requirements of section 5(1)(c). In so concluding, the Citizenship Judge made the following remarks at page 2 of his decision:
"Your pattern of travel, and the substance of the development projects outlined in the letter from your solicitors discussed at your hearing indicated activity related to land development, exports of products and materials, and the raising of capital in both directions -- China to Canada, and Canada to China. Your activity in bringing people from China to visit Canada is noted, as are your business projects relating to the possibility of export of water treatment technology and building materials from Canada to China, and the possible creation of a Canadian school in China.
As noted above, you have been absent from Canada for 712 days, and present for 456 days -- an absence of 61% of the time. Your absences appear to be structural -- that is, they appear to be a pattern of life rather than a temporary phenomenon. They are not related to a humanitarian emergency, the temporary assignment of overseas duties to an employee of a Canadian company, a unique educational program, or assignment by the Canadian government to overseas duties.
If the absences are a necessary part of your life as a business person, I must point out that you have chosen to spend more time outside the country than inside, and that the bulk of that time has been spent in the country of your birth.
It appears that you leading a dual existence. You have established your wife and son here, and have accumulated certain indicia of residence through acquisition of property, and joining certain organizations. It is also clear that you are leading a vigorous life in China, while spending the majority of your time there.
A key test for potential citizens of Canada is that enuciated by Justice Reed in the Koo decision -- the degree of which you have centralized your existence in Canada. I do not consider that you have centralized your existence in Canada. You are leading a dual existence, in which the majority of time is being spent elsewhere.
You will make a fine citizen of Canada some day, and I look forward to the time when you will have chosen to spend enough time in Canada to satisfy the requirements of the Citizenship Act".
[4] In my view, the Citizenship Judge made no error in concluding, as he did, that the appellant did not meet the residency requirements of the Act.
[5] In reaching his conclusion, the Citizenship Judge referred to and relied on the decision of Madam Justice Reed in Re Koo, (1992), 19 Imm. L.R. (2d) 1. After reviewing the relevant jurisprudence, Madam Justice Reed advanced the following test as a relevant test in the determination of whether an applicant for citizenship meets the residency requirements of the Act:
"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 dependants (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". |
[6] Since Madam Justice Reed's decision in Re Koo, there has been, to a certain extent, a shift in the jurisprudence of this Court. In Re Yi Cheng Jennifer Chuang (Docket T-6-99 rendered September 14, 1999) Madam Justice Reed made the following remarks:
"It is well known that the jurisprudence in this Court is divided. While some judges of this Court say you can not reside in a place where you are not physically present, others take a different view. The decision in Re Papadogiorgakis, [1978] 2 F.C. 208 (T.D.), is an example of the latter.
For many years a very liberal approach was adopted to the residency requirement of the Citizenship Act, as the decision in Re Papadogiorgakis was applied and, perhaps, stretched. In more recent times, a swing the other way has occurred; see, for example, Re Pourghasemi (1993), 19 Imm.L.R. (2d) 259 (F.C.T.D.), Re Chow (1997), 40 Imm.L.R. (2d) 308 (F.C.T.D.), and Re Chang (February 5, 1998) T-1183-97 (F.C.T.D.). As noted, some judges require physical presence within Canada for each of the 1095 days required by paragraph 5(1)(c); others do not. This lack of consistency in the jurisprudence must be very frustrating, both for citizenship judges and for counsel when advising their clients".
[7] I agree with Madam Justice Reed that the present situation is not an ideal one and that it is cause for concern. Unfortunately, the remedy to the ill is not available, i.e. an appeal to the Federal Court of Appeal. As an example of the swing in the jurisprudence referred to by Madam Justice Reed, is the decision of Muldoon, J. in Re Pourghasemi (1993), 19 Imm.L.R. (2d) 259 where, at pages 260 and 261, Muldoon J states the following:
"That provision exacts that the applicant must have 'within the four years immediately preceding the date of his application, accumulated at least three years of residence in Canada ...'. Parliament introduces an element of emphasis into the statutory text by enacting '... at least three years of residence in Canada ...'. Those emphasized words are unnecessary, except for emphasis. The appellant accumulated less than one year, before the date of his application for citizenship. In drawing a purposive interpretation of the statutory language it should be asked: Why did Parliament prescribe at least three years of Canadian residence in the four years immediately before applying for citizenship?
It is clear that the purpose of the paragraph 5(1)(c) is to ensure that everyone who is granted precious Canadian citizenship has become, or at least has been compulsorily presented with the everyday opportunity to become 'Canadianized'. . .
The statute does not direct the Court to evince sentimentality in order to evade, or to defy the statutory requirement for residence. Perhaps because of misunderstanding to this Court's previous jurisprudence, applicants seem to be advised to keep Canadian bank accounts, magazine subscriptions, medicare cards, lodgings, furniture, other property and good intentions to meet the statutory criterion, in a word, everything except really residing among Canadians in Canada for three out of the previous four years, as Parliament prescribes . . .".
[8] Another example of the shift is the decision of Mr. Justice Pinard in Re Su-Chen Chiu [1999] F.C.J. No. 896, Court File No. T-1892-98. At pages 2 and 3 of his reasons, Mr. Justice Pinard states:
"This Court has held that a proper interpretation of paragraph 5(1)(c) of the Act does not require physical presence in Canada for the entire 1,095 days of residence prescribed therein when there are special and exceptional circumstances. I consider, however, that actual presence in Canada remains the most relevant and crucial factor to be taken into account for establishing whether or not a person was "resident" in Canada within the meaning of the provision. As I have stated on many occasions, too long of an absence from Canada, albeit a temporary one, during that minimum period of time is contrary to the spirt of the Act, which already allows a person who has been lawfully admitted to Canada for permanent residence not to reside in Canada during one of the four years immediately preceding the date of that person's application for citizenship.
Therefore, given the substantial absences of the respondent from Canada in the present case (she was present in Canada for only 468 days leaving her short of the required 1,095 by 624 days), I find that the Citizenship judge's conclusion that the former met the residency requirements of the Act is totally unreasonable and that such conclusion is the result of an erroneous application of paragraph 5(1)(c) of the Act".
[9] I agree entirely with my colleagues Muldoon J and Pinard J. I, like them, am of the view that the Act requires, in most cases, physical presence in Canada for 3 years. There may well be cases where an applicant has not spent 3 years in Canada but nonetheless he will have established residence in this country so as to allow him to accumulate days even though these are spent abroad. However, the present case is not such a case. The appellant therefore fails on the first issue.
[10] I now turn to the second issue raised by the appellant.
[11] The appellant, in my view, cannot succeed on the second issue. In that regard I simply wish to refer to the decision of Strayer J (as he then was) in Re Khat (1991), 49 F.T.R. 252 where, at page 253, the learned Judge states:
"Her representative strongly urged that I should make a recommendation to the Minister to exercise his discretion under s. 5(3)(a) of the Act to waive the requirement . . . on compassionate grounds. The compassionate ground pressed was that Mrs. Khat cannot acquire a better knowledge of Canada and of the responsibilities and privileges of citizenship because she is illiterate in Cambodian as well as in both official languages in Canada. She has made serious efforts to learn English since coming to Canada but has made only moderate progress. This is her second unsuccessful application for citizenship.
There has been some division of opinion in this court concerning the jurisdiction of the court to make such recommendations. I respectfully agree with those judges who have found that the court has no such jurisdiction . . . The appeal to this court which is authorized under subs. 14(5) is an appeal "from the decision of the citizenship judge under subs. (2) . . .", and the decision referred to in that subsection is a decision of the judge to approve or not approve the application. The power given to a citizenship judge in s. 15(1) with respect to the exercise of discretion on compassionate grounds is that of making a recommendation to the Minister in this respect. This is not a "decision" under s. 14(2)".
[12] Strayer J then went on to say, at page 253:
"Section 14(2) provides, however, that as a precondition to making a decision under that subsection, the citizenship judge must consider whether or not to make a recommendation under s. 15(1). While it is not for this court, sitting on appeal, to review the conclusion of the citizenship judge as to whether a recommendation should be made, in a proper case it may be open to this court to refer the matter back to the citizenship judge if this court is not satisfied that relevant factors have been taken into account in the exercise of that discretion".
[13] In regard to the second issue, the appellant seeks the following orders. The orders sought by the appellant are set out at paragraphs 36, 37 and 38 of his Memorandum of Fact and Law:
36. In the alternative, the appellant seeks a recommendation by this honourable court to the Minister to grant citizenship to the appellant as a reward for services of an exceptional value to Canada.
37. In the further alternative, the appellant seeks a direction that the appellant's application for citizenship be referred back to the citizenship judge with a direction that a recommendation be made to the Minister to grant citizenship to the appellant as a reward for services of an exceptional value to Canada.
38. In the further alternative, the appellant seeks a direction that the appellant's application for citizenship be referred back to the citizenship judge with a direction that the judge consider whether to recommend to the Minister to grant citizenship to the appellant as a reward for services of an exceptional value to Canada.
[14] With respect to the first two orders sought by the appellant, I agree with Mr. Justice Strayer that this Court is without jurisdiction to recommend to the Minister that she grant citizenship to the appellant, I am further of the view that this Court cannot direct the Citizenship Judge to recommend to the Minister the granting of citizenship to the appellant.
[15] I now turn to the last order sought by the appellant. In Re Khat, supra, Mr. Justice Strayer appeared to be of the view that this Court could refer a matter back to the Citizenship Judge when not satisfied that the Judge had taken all relevant factors into account in the exercise of his discretion under section 15(1) of the Act. In Re Khat, Mr. Justice Strayer opined that the power given to a Citizenship Judge to recommend an exercise of discretion under section 15(1) was not a decision under section 14(2), thus not a proper subject of appeal to this Court. If the power exercised by the Citizenship Judge under section 15(1) is not a decision under section 14(2), then this Court is without jurisdiction over the matter. Consequently, whether the Citizenship Judge failed to consider the question altogether or whether he disregarded the material before him, is irrelevant. I must therefore conclude that the appellant cannot succeed in regard to the second issue.
[16] As I indicated to counsel during the hearing, if the power given to a Citizenship Judge under section 15(1) does not constitute a decision under section 14(2), then the only remedy open to an applicant is to proceed by way of judicial review of the Judge's exercise of discretion.
[17] I may perhaps add that, on the material before me, I have not been persuaded that the Citizenship Judge failed to consider the question of whether the appellant had provided services of exceptional value to Canada. In his December 14, 1999 decision, the Citizenship Judge, at page 2 of his reasons, writes the following:
| "I have consider and decided against making an affirmative recommendation under Subsection 5(3) or 5(4) of the Act, especially since there was no evidence of any health disability, or any special or unusual hardship, or services of an exceptional value to Canada." |
[18] Thus, on the face of the Record, the Citizenship Judge did turn his mind to the question.
[19] I should further add that I was not referred to any case law, nor were any arguments made, concerning the meaning of the words "services of an exceptional value to Canada" found in section 5(4) of the Act.
[20] For these reasons, this appeal shall be dismissed.
(Sgd.) "Marc Nadon"
Judge
VANCOUVER, British Columbia
November 24, 2000
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| DOCKET: T-213-00 |
| STYLE OF CAUSE: Li Zhang |
v.
MCI
| PLACE OF HEARING: Vancouver, British Columbia |
| DATE OF HEARING: November 20, 2000 |
| REASONS FOR ORDER OF NADON, J. |
| DATED: November 24, 2000 |
APPEARANCES:
| Ms. Kathleen MacDonald For the Appellant |
| Ms. Mandana Namazi For the Respondent |
SOLICITORS OF RECORD:
Loh & Company
Barristers & Solicitors
| Vancouver, BC For the Appellant |
Morris Rosenberg
Deputy Attorney
| General of Canada For the Respondent |