Date: 20000914
Docket: T-891-99
Ottawa, Ontario, this 14th day of September 2000
| PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER |
BETWEEN:
SZE NGA CECILIA FUNG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
PELLETIER J.
[1] This is an appeal from the decision of a Citizenship Judge rejecting the applicant's application for Canadian citizenship.
[2] The applicant was born on September 27, 1974. She initially entered Canada on August 19, 1992, pursuant to a student authorization issued under the Immigration Regulations, 1978 to pursue her studies at the University of Toronto. On March 26, 1994, she became a permanent resident when that status was conferred on her parents, upon whom she was dependent.
[3] The applicant relates that it was her dream to become a dentist but that her marks were not sufficiently high for her to be considered for admission to a Canadian school of dentistry. She learned that she would probably qualify for admission to the school of dentistry in Hong Kong. She applied and was admitted. She left Canada on August 20, 1995 and remained in Hong Kong for 314 days returning on June 30, 1996. On September 1, 1996, she again left for Hong Kong where she remained for 303 days, returning to Canada on July 1, 1997, at the completion of her studies. On October 16, 1997, she applied for Canadian citizenship. The applicant was totally financially dependent on her parents at all times.
[4] Subsection 5(1)(c) of the Citizenship Act, R.S.C. 1985 c. C-29 ("the Act") provides 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] The calculation of days of presence in Canada in the four years prior to the date of application for citizenship shows that the applicant was present in Canada for 771 days. After discounting the days in Canada prior to achieving permanent resident status, she was credited with 691 days of residence in the four-year period, prior to her application for citizenship. This left her with a shortfall of 404 days of residence in the statutory period.
[6] The operative parts of the letter from the Citizenship Judge advising the applicant of the rejection of her application state:
| According to the evidence on your file and presented to me at the hearing, your absences from Canada total 689 days in the four years preceding your application for Citizenship (16 October 1997). During this period you were physically present in Canada for 691 days. In these circumstances, you had to satisfy me, in order to meet the residence requirements, that your absences from Canada (or at least a part of these) could be counted as a period of residence in Canada. |
| Federal Court precedents require that, to establish residence, an individual must show, in mind and in fact, a centralization of his or her mode of living in Canada. If such evidence 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. I have therefore carefully examined your case to determine whether you had established residence in Canada prior to your absences such that those absences could nevertheless be counted as periods of residence. |
| After having considered the evidence that I received both by way of testimony and documentation, I could not find that you have established a residence in Canada by virtue of a centralized mode of living in Canada in the four years preceding your application for Canadian Citizenship. |
| I am supported in my decision by the following Federal Court of Appeals decision: |
In re Pourghasemi ( T-80-92) Justice Muldoon states that:
| "If the candidate (for citizenship) 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." |
[7] In Lam v. Canada , [1999] F.C.J. No. 410, (1999), 164 F.T.R. 177, Lutfy J. discussed the appropriate standard of review in Citizenship appeals. He surveyed the jurisprudence and concluded that the Citizenship Court's expertise was not such as would entitle it to significant deference and held that the standard of review was nearer to correctness than it was to reasonableness. On the question of the interpretation of the Citizenship Act, which is the Court's constituent legislation, the Citizenship would only be free from review by this Court if its interpretation was correct since that is a matter of law in respect of which the Citizenship Court has no particular expertise in comparison to this Court. The problem is that, given the divided jurisprudence in this Court, which approach to the question of residence found at subsection 5(1)(c) is correct? The decisions of the various members of this Court are equally authoritative and equally binding upon the members of the Citizenship Court. Lutfy J. concluded that if a judge of the Citizenship Court adopted any approach sanctioned by a member of this Court and applied it correctly, that decision should not be disturbed by another judge applying a different interpretation of the Act.
| 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. |
Lam v. Canada, supra para 33.
[8] The test is the same whether the Citizenship Judge has recommended acceptance or rejection of a person's application for citizenship.
[9] In this case, it is not apparent that the Citizenship Judge has demonstrated an understanding of the case law. She correctly states the view that once residence is established, it can be maintained during periods of temporary absence. She correctly identifies that she must be satisfied that residence was established. She does not set out her reasons for doing so but advises that she has concluded that residence has not been established. She then seeks to support this by reference to the decision of Muldoon J in Re Pourghasemi, [1993] F.C.J. No. 232, (1993), 62 F.T.R. 122. The passage which she cites is a refutation of the argument that a hardship is imposed on certain applicants if their absence from Canada to attend an educational institution does not count towards the required period of residence in Canada. Muldoon J. simply points out that the answer is to complete your education and then to return to Canada and apply for citizenship once the residence requirement has been met. This does not address the question as to whether residence has been established or not.
[10] By referring to Re Pourghasemi, supra, the Citizenship Judge has created a doubt as to whether she was applying the approach which she described in the earlier paragraphs of her reasons, in which absence from Canada can count towards the period of residence, or whether she was applying the test set out in Re Pourghasemi in which physical presence in Canada for 1,095 days is required and periods of absence in excess of the 365-day allowance provided for in the Act are fatal to the application. The Citizenship Judge was free to apply either test and since both are equally valid, it may not be material that one cannot determine which she chose to apply. What is material, however, is that there is no way of knowing why the Citizenship Judge ruled that residence had not been established. Was residence not established because the applicant was not physically present or was it because there was insufficient evidence of centralization of the applicant's mode of existence in Canada as measured by the usual indicia of attachment?
[11] Subsection 14(3) of the Act requires the Citizenship Judge to provide the applicant the reasons for her failure to approve the application. Reasons are insufficient if they do not permit the recipient to determine the basis on which the decision is made. See Boyle v. New Brunswick (Workplace Health, Safety and Compensation Commission), [1996] N.B.J. No. 291, (1996), 99 Admin L.R. (2d) 150, where the headnote summarizes the finding of Bastarache J.A. as follows:
| The duty to give reasons was not simply met by listing the evidence considered. Reasons must explain to the parties why the Tribunal decided as it had, and must also be sufficient to enable the Appeal Court to discharge its appellate function. Thus, the Tribunal must set out the evidence supporting its findings in enough detail to disclose that it had acted within jurisdiction and not contrary to law. |
[12] That has not occurred in this case since it is not possible to determine why the Citizenship Judge decided that residence had not been established. For that reason, the decision must be set aside. There will be an order allowing the appeal and referring the applicant's application back for reconsideration by another judge of the Citizenship Court.
ORDER
The appeal from the decision of Citizenship Judge Doreen Wicks, the reasons for which are dated March 22, 1999 is allowed and the application for citizenship of Sze Nga Cecilia Fung is remitted to another judge of the Citizenship Court for reconsideration.
"J.D. Denis Pelletier"
Judge