Date: 19990211
Docket: T-1569-98
BETWEEN:
SHAW HUA HSU,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER AND ORDER
CAMPBELL, J.
[1] My decision in this judicial review is rendered according to my interpretive findings in MCI v. Wing Tung Thomas Yeung (F.C.T.D. No. T-1256-98, rendered 3 February 1999).1
[2] In the present case, the applicant argues that a strong case was made to the Citizenship Judge that residency had been established and maintained. I agree with this assessment. However, the Citizenship Judge did not grant citizenship.
[3] In applying the correct test, the Citizenship Judge focused upon, and placed great weight upon, the applicant's absences from the country. It is uncontested that the applicant was present for 265 days and absent for 1152 days, leaving a shortage of 830 days of the required 1095 days referred to in s.5(1)(c) of the Citizenship Act. I find no error in the focus placed on the evidence by the Citizenship Judge as a feature of the exercise of his discretion. However, with respect to the absences, the Citizenship Judge made the following statement:
| When reviewing the pattern of the periods of absences from Canada, one notices that you have been out of the country seven times more than you were in Canada as a result of the nature of your business. [Emphasis added]. |
[4] It is agreed that, in fact, the applicant was out of the country only five times more than he was in Canada as a result of the nature of his business. The question is: what significance should be placed on this error? I find that the error is a fundamental error in interpretation of the evidence, and of such a quality as to potentially create an erroneous state of mind in the decision-maker which is manifestly unfair to the applicant. For this reason, the Citizenship Judge's decision should be set aside.
[5] Accordingly, I allow the appeal.
[6] I make no order as to costs.
(Sgd.) "Douglas Campbell"
Judge
Vancouver, British Columbia
11 February 1999
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-1569-98
STYLE OF CAUSE: SHAW HUA HSU
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: February 11, 1999
REASONS FOR ORDER AND ORDER OF CAMPBELL, J.
dated February 11, 1999
APPEARANCES:
| Mr. Andrew Wlodyka for the Applicant |
Ms. Brenda Carbonell for the Respondent
SOLICITORS OF RECORD:
| Mr. Andrew Wlodyka for the Applicant |
| Wong & Associates |
Vancouver, B.C.
Mr. Morris Rosenberg for the Respondent
Deputy Attorney General
of Canada
__________________
1. [2] I am in agreement with Rouleau, J.'s decision in MCI v. Hin Keung Hung (F.C.T.D. No. T-1345-98, rendered 21 December 1998), that under the new rules, citizenship appeals are no longer trials de novo, and, therefore, are governed by s.18.1(4) of the Federal Court Act. In this respect, for a decision of a citizenship judge to be set aside, it is necessary to find reviewable error. Apart from clear errors of law, which are rare, citizenship appeals under the new rules focus on s.18.1(1)(d), about which Rouleau, J. in Hung at 4 says as follows:
Section 18.1(1)(d) essentially codifies the way the courts have viewed findings of fact made by administrative tribunals. In Kibale v. Transport Canada (1988), 90 N.R. 1 (F.C.A.) at 4, leave to S.C.C. refused (1989), 101 N.R. 238 (S.C.C.), Pratte J.A. stated that "even if the court is convinced that a decision is based on an erroneous finding of fact, it cannot intervene unless it is also of the opinion that the lower court, in making its finding, acted in a perverse or capricious manner, or without regard for the evidence." Not only must the finding of fact be perverse or capricious or without regard to the evidence before the adjudicator, this court must make such a finding if it is to interfere pursuant to s.18.1(4)(d).
[3] The present case turns on whether the citizenship judge correctly interpreted the terms of s.5(1)(c) of the Citizenship Act (the "Act") which reads as follows:
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: (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. [Emphasis added].
[4] There is divided opinion on this Court as to the interpretation to be placed on the residency requirement set out in s.5(1)(c). I find that Thurlow, J.'s reasons in Re Papadogiorgakis, [1978] 2 F.C. 208 at 214, are compelling, and, therefore, accept the test to be applied as follows:
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. 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.".
[5] On the basis of Re Papadogiorgakis, it is clear that to meet the residency requirement in s.5(c) of the Act a person must have an "established home" in Canada and not cease to be a resident there. However, also according to Thurlow, J.'s reasoning, the 1095 days of residence in Canada prior to the date of a citizenship application required by s.5(1)(c) of the Act is not a rigid standard.
[6] With respect to determining whether a person has established a home in Canada or, if so, ceases to be resident there, I completely agree with the approach of Dubé, J. in Re Banerjee (1994), 25 Imm. L.R. (2d) 235 (F.C.T.D.) stated at 238 as follows:
However, each case must turn on its own facts. It is the quality of the attachment to Canada that is to be ascertained. No specific item or number of items will, in all cases, be determinative of the issues .... The length of the absences of itself is not determinative. However, taken together with the circumstances which surround the absences, the length of the absences may be a factor in determining a person's quality of attachment to Canada .... [citations omitted] [Emphasis added].