Date: 20020301
Docket: T-85-01
Neutral Citation: 2002 FCT 228
BETWEEN:
TONG QIAO
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent.
REASONS FOR ORDER
KELEN J.:
[1] This is an appeal pursuant to subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 ("the Act"), and section 21 of the Federal Court Act, 1985, c.F-7 from the decision of Citizenship Judge Jeanine Beaubien, dated November 20, 2000, wherein the Citizenship Judge did not approve the application of Tong Qiao for a grant of citizenship under subsection 5(1) of the Act on the basis that the appellant did not meet the residence requirements of paragraph 5(1)(c) of the Act.
FACTS
[2] The appellant was born February 24, 1971. She is a citizen of China. The appellant came to Canada on January 22, 1991. She became a permanent resident on April 27, 1992. Since then, she spent extensive time outside Canada, in the US, England and Germany, pursuing her studies. During that time she maintained bank accounts and personal relations in Canada, and considered Canada to be her home.
[3] On October 14, 1998, the appellant applied for Canadian citizenship. The appellant's interview with the citizenship judge took place on May 23, 2000. The interview allegedly took ten minutes and in the appellant's opinion, the judge was ill-informed as to her application and appeared to be uninterested.
STANDARD OF REVIEW
[4] The standard of review for a decision of a Citizenship Judge with regard to the selection and application of a residency test is set out by McKeown J. in Zhang v. M.C.I., [2001] F.C.J. No.778 at paragraph 7:
The standard of review applicable in such matters is correctness. The test is refined further by Justice Lutfy in Lam v. Canada (M.C.I.) (1999), 164 F.T.R. 177 where he stated at paragraph 33:
However, where citizenship judges, in clear reasons which demonstrate an understanding of the case law, properly decide that the facts satisfy their view of the statutory test in paragraph 5(1)(c), the reviewing judges ought not to substitute arbitrarily their different opinion of the residency requirement. It is to this extent that some deference is owed to the special knowledge and experience of the Citizenship Judge [...]
It was further refined by Justice Pelletier in Canada (M.C.I.) v. Mindich (1999), 170 F.T.R. 148 (T.D.) where he stated at paragraph 9:
Given the divergence in the views of the members of the Federal Court, a Citizenship Judge could choose one approach or the other and not be wrong on that count alone. The function of the judge sitting in appeal is to verify that the Citizenship Judge has properly applied the test of his or her choosing. [emphasis added]
Accordingly, the standard of review is correctness, in that the appeal court must verify that the Citizenship Judge has correctly applied one of the residency tests. The appeal court ought not substitute its different opinion unless the Citizenship Judge has made an error in applying the residency test.
QUALIFICATION FOR CITIZENSHIP
[5] Pursuant to the calculation prescribed by paragraph 5(1)(c)of the Citizenship Act, in order to be granted citizenship, the appellant must have accumulated at least three years (1095 days) of residence in Canada within the four years immediately preceding the date of her application.
Subsection 5(1) of the Act reads as follows:
Grant of citizenship
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) 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:
Attribution de la citoyenneté
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) 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) 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;
(d) has an adequate knowledge of one of the official languages of Canada;
(e)has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship; and
(f) is not under a deportation order and is not the subject of a declaration by the Governor in Council made pursuant to section 20.
(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;
(d) a une connaissance suffisante de l'une des langues officielles du Canada;
e) a une connaissance suffisante du Canada et des responsabilités et avantages conférés par la citoyenneté;
(f) n'est pas sous le coup d'une mesure d'expulsion et n'est pas visée par une déclaration du gouverneur en conseil faite en application de l'article 20.
TEST FOR RESIDENCY
[6] Several tests for residency have been developed by the Federal Court of Canada, Trial Division. It has been established in Hsu v. M.C.I., [2001] F.C.J. No. 862 (F.C.T.D.), per Heneghan J., that citizenship judges may properly apply any test, but may not blend different tests together. Heneghan J. held at paragraph 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 Appellant 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.
[7] In re Citizenship Act and in re Antonios E. Papadogiorgakis, [1978] 2 F.C. 208 (F.C.T.D.), Thurlow A.C.J. set out the "central existence" test such that notwithstanding absences that exceed the minimum requirements, the application hinges on whether or not the appellant has centralized their ordinary existence in Canada:
A person with an established home of his own in which he lives does not cease to be resident there when he leaves it for a temporary purpose whether on business or vacation or even to pursue a course of study. The fact of his family remaining there while he is away may lend support for the conclusion that he has not ceased to reside there. The conclusion may be reached, as well, even though the absence may be more or less lengthy. It is also enhanced if he returns there frequently when the opportunity to do so arises.
It is, as Rand J. [in Thomson v. M.N.R., [1946] S.C.R. 209] appears to me to be saying in the passage I have read, "chiefly a matter of the degree to which a person in mind and fact settles into or maintains or centralizes his ordinary mode of living with its accessories in social relations, interests and conveniences at or in the place in question"
[8] Dubé J. restated this test in Re: Banerjee (1994), 25 Imm.L.R. (2d) 235 (F.C.T.D.) at 238 as: "It is the quality of the attachment to Canada that is to be ascertained."
[9] The "physical presence" test set out by Muldoon J. in Pourghasemi (Re), [1993] F.C.J. No. 232 (F.C.T.D.) calls for the appellant to be physically present in Canada for the required number of days. Paragraphs 3-4 read:
It is clear that the purpose of paragraph 5(1)(c) is to insure that everyone who is granted precious Canadian citizenship has become, or at least has been compulsorily presented with the everyday opportunity to become, "Canadianized". This happens by "rubbing elbows" with Canadians in shopping malls, corner stores, libraries, concert halls, auto repair shops, pubs, cabarets, elevators, churches, synagogues, mosques and temples - in a word wherever one can meet and converse with Canadians - during the prescribed three years. One can observe Canadian society for all its virtues, decadence, values, dangers and freedoms, just as it is. That is little enough time in which to become Canadianized. If a citizenship candidate misses that qualifying experience, then Canadian citizenship can be conferred, in effect, on a person who is still a foreigner in experience, social adaptation, and often in thought and outlook. If the criterion be applied to some citizenship candidates, it ought to apply to all. So, indeed, it was applied by Madam Justice Reed in Re Koo, T-20-92, on December 3, 1992 [Please see [1992] F.C.J. No. 1107.], in different factual circumstances, of course.
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 of this Court's previous jurisprudence, appellants 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. One may ask: So what if the would-be citizen be away at school or university? What is the urgency? If the candidate cannot find an adequate school or university in Canada, let him or her study abroad and then come back to Canada in order to comply with the residence requirement.
[10] Finally, with respect to the "centralized existence" test, Reed J. in Koo (Re), [1993] 1 F.C. 286, [1992] F.C.J. No. 1107 (F.C.T.D.) set out a list of factors which point to sufficient attachment to Canada so as to allow for the granting of citizenship even where a required minimum number of days has not been met:
The conclusion I draw from the jurisprudence is that the test is whether it can be said that Canada is the place where the appellant "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 appellant's immediate family and dependents (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 appellant 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 employment abroad?
(6) what is the quality of the connection with Canada: is it more substantial than that which exists with any other country?
[11] All these tests have been held to be applicable. As Blanchard J. stated in So v. Canada (Minister of Citizenship & Immigration), [2001] F.C.J. No. 1232 (F.C.T.D.), at paragraph 29:
The jurisprudence supports the proposition that a Citizenship Judge may adopt and apply whichever of the above tests he or she chooses as long as it properly applied.
In Lam v. Canada (Minister of Citizenship & Immigration), [1999] F.C.J. No. 410 (F.C.T.D.) at paragraph 14, Lutfy J. (as he then was) stated:
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.
DECISION OF THE CITIZENSHIP JUDGE
[12] The Citizenship Judge in this case did not approve the application of Tong Qiao for a grant of citizenship on the basis that the appellant did not meet the requirements of paragraph 5(1)(c), which requires an appellant to have accumulated a minimum of three years residence in Canada during the four years preceding her application for citizenship.
[13] In the Citizenship Judge's Reasons for the Decision attached to the "Notice to the Minister of the Decision", the Judge writes:
The applicant Miss Qiao has spent too much time out of Canada to qualify for citizenship.
[...]
Her total of declared absences for the 4 years previous to her application is 1460 days, which leaves 110 days of presence for these 4 years.
Even if we count the few days of presence there are many occasions when the applicant could have proven her real attachment to Canada more solid than just words.
She has no family in Canada, but certainly made many friends at university and although Miss Qiao is extremely knowledgeable and has been very successful at her studies, I cannot accept her application for citizenship at this time because of the lack of days spent in Canada.
[14] In the Letter of Decision, dated November 20, 2000, the Citizenship Judge writes:
Federal Court precedents require that, to establish residence, an individual must show, in mind and in fact, centralization of his or her mode of living in Canada. If such residence is established, absences from Canada do not affect this residence, as long as it is demonstrated that the individual left for a temporary purpose only and maintained in Canada some real and tangible form of residence.
ISSUE
[15] Did the Citizenship Judge err in determining that the appellant failed to comply with paragraph 5(1)(c) of the Act?
ANALYSIS
[16] The appellant has submitted that in the case at bar, it is not possible to determine which test the Judge has applied. In her Motion Record, the appellant has suggested that while the Judge's written reasons appear to apply the Pourghasemi test, the refusal letter appears to be more in line with Koo and Papadogiorgakis.
[17] The reference in the letter of refusal to "Federal Court precedents" shows an awareness of the tests available to the Citizenship Judge in deciding upon the application for citizenship. The reference to "centralization" refers to the Papadogiorgakis and Koo tests. The facts of this case are reminiscent of the Koo case, in that the appellant, like Koo, has some indicia of having established a connection to Canada, but is lacking the quality of residence which demonstrates that Canada is the place where the appellant regularly, normally and customarily resides. Reed J. in delivering the decision inKoo, supra wrote:
In assessing the quality of this appellant's connection with this country, by reference to the questions set out above, I note first that his situation is not one in which there has been an extensive period of residence in Canada prior to the more recent extended absences. While his wife has been here long enough to obtain citizenship, it is not possible to say that the family really has "roots" here.[...] The pattern of physical presences in Canada is more consistent with visits to this country rather than demonstrating a return to a place where one "regularly, normally and customarily lives." He falls very, very far short of the 1,095-day requirement of actual residence. The absences are not related to an obviously temporary cause. While the appellant speaks of the possibility of moving the head office of Valles
Steamship Company Ltd. to Canada, as I have noted, this is speculative. In so far as the quality of the appellant's attachment to Canada is concerned, he has acquired many of what I might call the standard indicia, probably on the recommendation of his consultants: property in the form of a residence; a driver's licence; bank accounts; B.C. medical coverage; a library card (which, clearly, he rarely uses); a tennis club membership (which he certainly does not use since he does not play tennis). Despite these formal indicia of connection to Canada, I have not been persuaded that the quality of the appellant's residence in Canada is more substantial than the quality of his residence in Hong Kong. I cannot conclude that the quality of that residence demonstrates that Canada is the place where he regularly, normally and customarily resides. Thus, I reach the same conclusion as that reached by the Citizenship Judge, that the appellant has not fulfilled the 1,095-day residence requirement of the Citizenship Act . (emphasis added)
[18] I am satisfied that the Citizenship Judge did not apply the wrong test. It is evident that upon considering the application, the Judge realized that the appellant failed the "physical presence" test based on a literal calculation of the number of days the appellant had spent in Canada in the four years prior to the application for citizenship. Accordingly, the Citizenship Judge applied the "centralized existence" test in Re Papadogiorgakis and Re Koo, which is the principal legal test for residence when dealing with students. In that test, notwithstanding absences that exceeded the statutory requirement of minimum days in Canada, what matters is that the appellant has centralized her ordinary mode of existence in Canada. There are factors which when present, point to sufficient attachment to Canada to justify the granting of citizenship even if the periods of absence exceed the statutory maximum.
[19] The facts of this case support the finding that the appellant did not maintain a "central existence" in Canada, or a "quality of attachment to Canada", during the four years prior to her citizenship application. The required time spent by the appellant in Canada in the last four years is 1,095 days in order to qualify for citizenship. The appellant only spent 110 days. During this four-year time period the appellant did not demonstrate, through other factors, that she maintained a "centralized existence" in Canada.
CONCLUSION
[20] I have reviewed the reasons of the Citizenship Judge and find that she did identify and apply the residency test set out in Papadogiorgakis, supra and Koo, supra. I find that the Citizenship Judge did demonstrate in her reasons an understanding of the test and did correctly decide that the facts do not satisfy the residency requirement under this test.
[21] Accordingly, the Citizenship Judge did not err in determining that the appellant did not meet the requirements prescribed under paragraph 5(1)(c) of the Citizenship Act. Therefore, this appeal should be dismissed.
(signed) Michael A. Kelen
_________________________________
JUDGE
OTTAWA, Ontario
March 1, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-85-01
STYLE OF CAUSE:Tong Qiao -v- Minister of Citizenship & Immigration
PLACE OF HEARING: Toronto. Ontario
DATE OF HEARING: February 19, 2002
REASONS FOR ORDER: The Honourable Mr. Justice Kelen
DATED: March l, 2002
APPEARANCES:
Ms. Barbara Jackman FOR APPLICANT
Mr. Lome McClenaghan FOR RESPONDENT
SOLICITORS OF RECORD:
Jackman, Waldman &
Associates FOR APPLICANT
Morris Rosenberg,
Deputy Attorney General of
Canada FOR RESPONDENT