THE MINISTER OF CITIZENSHIP v. IMMIGRATION, 2011 FC 844

Federal Court Cour fédérale Date: 20110707 Docket: T-1586-10 Citation: 2011 FC 844 Vancouver, British Columbia, July 7, 2011 PRESENT: The Honourable Madam Justice Tremblay-Lamer BETWEEN: THE MINISTER OF CITIZENSHIPAND IMMIGRATION Applicant and ZHAO ZHANG Respondent REASONS FOR JUDGMENT AND JUDGMENT [1] This is an appeal by the Minister of Citizenship and Immigration (the Minister) pursuant to subsection 14(5) of theCitizenship Act, RSC 1985, c C-29 [Citizenship Act], from the decision of a citizenship judge, dated August 4, 2010, granting therespondent citizenship, on the basis that the citizenship judge erred in finding that the respondent had met the residency requirementunder paragraph 5(1)(

c) of the Citizenship Act. I. Background [2] The respondent is a citizen of China. On March 1, 1999, she entered Canada and was landed as a permanent resident. Shesubmitted her application for Canadian citizenship on May 6, 2008. On July 7, 2010, the respondent appeared before the citizenshipjudge and on August 4, 2010, he approved her application. II.

Decision under Appeal [3] Without explicitly referring to it, the citizenship judge applied the qualitative test for residence set out by Justice BarbaraReed in Re Koo (1992), (FC), [1993] 1 FC 286, 59 FTR 27 [Koo], asking himself whether Canada was the country inwhich the respondent had centralized her life and answering that question in the affirmative. He found that the respondent spentsubstantial time in Canada before the relevant four-year period, that her absences were exclusively caused by her husband’s employmentin Japan, noting that she is Chinese and has no other ties to Japan.

He also noted that her husband and her two daughters are Canadian,and that she had a third daughter who was deceased who had lived in Canada.

[4] The citizenship judge also based his conclusion on the fact that the respondent had investments, a car, and insurance inCanada, and on the fact that the respondent had a British Columbia driver’s licence, a local bank account, a Nanaimo park and recreationmembership, etc. He also took into account her efforts to qualify in Canada as a chartered accountant, the fact that her husband’scompany was Canadian, and her involvement with different organizations in Nanaimo. III. Issue Did the citizenship judge err in finding that the respondent met the residence requirement set out in paragraph 5(1)(

c) of the CitizenshipAct? IV. Analysis [5] The residence requirement set out in paragraph 5(1)(

c) of the Citizenship Act requires an applicant to have accumulated atleast three years of residence in Canada during the four years immediately preceding the date of his or her application: Grant of citizenship 5.

(1) The Minister shall grantcitizenship to any person who … (

c) is a permanent resident withinthe meaning of subsection 2(1) ofthe Immigration and RefugeeProtection Act, and has, withinthe four years immediatelypreceding the date of his or herapplication, accumulated at leastthree years of residence inCanada calculated in thefollowing manner: (

i) for every day during whichthe person was resident inCanada before his lawfuladmission to Canada forpermanent residence the personshall be deemed to haveaccumulated one-half of a day ofresidence, and (ii) for every day during whichthe person was resident inCanada after his lawfuladmission to Canada forpermanent residence the personshall be deemed to haveaccumulated one day ofresidence; Attribution de la citoyenneté 5.

(1) Le ministre attribue lacitoyenneté à toute personne qui,à la fois : …

c) est un résident permanent ausens du paragraphe 2(1) de la Loisur l’immigration et la protectiondes réfugiés et a, dans les quatreans qui ont précédé la date de sademande, résidé au Canadapendant au moins trois ans entout, la durée de sa résidenceétant calculée de la manièresuivante: (

i) un demi-jour pour chaque jourde résidence au Canada avant sonadmission à

titre de résidentpermanent, (ii) un jour pour chaque jour derésidence au Canada après sonadmission à

titre de résidentpermanent; [6] The meaning of the word “residence” has been interpreted by this Court in a number of ways. Associate Chief Justice ArthurThurlow in Re Papadogiorgakis, (FC), [1978] 2 FC 208, 88 DLR (3d) 243 (TD) [Papadogiorgakis] held that a personwho had “centralized his mode of living in Canada” could leave for periods of time and still be regarded as having been resident inCanada for the purposes of the Citizenship Act.

On the other hand, in Re Pourghasemi (1993), 62 FTR 122, 19 Imm LR (2d) 259 (TD)[Pourghasemi], Justice Francis Muldoon interpreted the residence requirement more narrowly as requiring the applicant to have beenphysically present in Canada for at least three of the four years prior to the application.

In Koo, above, Justice Reed described theappropriate test as being, “whether it can be said that Canada is the place where the applicant ‘regularly, normally or customarily lives’”.She set out six non-exhaustive questions to assist in answering this question. [7] Although it is sometimes said that there are three tests for residence, the Papadogiorgakis test, the Pourghasemi test and theKoo test, as Justice Richard Mosley recently pointed out in Hao v Canada (Minister of Citizenship and Immigration), 2011 FC 46 at para19, “there are effectively only two: strict physical presence or residency as determined by the Koo qualitative factors.”

[8] In the current case, the Minister did not argue that the citizenship judge erred in applying the wrong test to determineresidence – i.e. he did not argue that the quantitative physical presence test should have been applied, as opposed to the qualitative testfrom Koo. Indeed, in Lam v Canada (Minister of Citizenship & Immigration) (1999), (FC), 164 FTR 177, 87A.C.W.S. (3d) 432 (TD) [Lam], Justice Lutfy held that it was open to the citizenship judge to apply either of the tests, so long as thechosen test was applied properly.

While there has been some recent disagreement on the question of whether or not more than one test ispermissible (Justice Robert Barnes in El Ocla v Canada (Minister of Citizenship and Immigration), 2011 FC 533 [El Ocla] and JusticeJames O’Reilly in Dedaj v Canada, 2010 FC 777, 90 Imm LR (3d) 138 found that the qualitative Koo test was the correct test to apply,while Justice Donald Rennie in Martinez-Caro v Canada (Minister of Citizenship and Immigration), 2011 FC 640 found that thequantitative Pourghasemi test was the correct test to apply), it is not necessary for me to address this issue on the current appeal. [9] The Minister’s argument in the current case was simply that the citizenship judge erred in the way that he applied thequalitative Koo test.

This is a question of mixed fact and law to which the reasonableness standard of review ought to be applied (ElOcla, above at para 11). As discussed below, I find that the Koo test was not reasonably applied in this case and, as such, it isunnecessary for me to consider the threshold question of whether or not a different test ought to have been applied. [10] As discussed, the Koo test asks whether it can be said that Canada is the place where the applicant "regularly, normally orcustomarily lives".

The six questions that can be asked to assist in this determination were set out by Justice Reed as follows: (1) was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before theapplication for citizenship; (2) where are the applicant'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 applicant is only a few days short of the 1095 day total it is easier to find deemedresidence 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 ofstudy abroad as a student, accepting temporary employment abroad, accompanying a spouse who has accepted temporary employmentabroad; (6) what is the quality of the connection with Canada: is it more substantial than that which exists with any other country. [11] On the first question, the Minister points out that the respondent was not, in fact, physically present in Canada for a longperiod prior to the relevant four years and, as such, he argues that the citizenship judged erred by describing the time she spent in Canadaprior to the relevant period as being “substantial”.

He points out that the respondent was, in fact, physically present in Canada for only1568 days (or slightly less than 4.5 years) over a period of 11 years. [12] I agree with the Minister that the citizen judge’s treatment of this question is of particular concern. I note that in the residencequestionnaire, the respondent stated at question 9 that she worked from November 2001 to March 2006 in Tokyo, Japan; this is almost3.5 years spent outside of Canada for employment purposes.

Moreover, the table labelled “Zhao Zhang Record of Days stayed insideCanada,” which was also before the citizenship judge, indicates that the respondent had spent only 821 days in Canada between herarrival on March 1, 1999 and May 2004, or approximately two years and three months over a five-year period.

I have difficultyunderstanding how this could be deemed as a “substantial time in Canada before the four year period.” [13] On the second question, the Minister argues that the citizenship judge failed to consider the fact that the respondent had nofamily actually living in Canada: her daughters were attending school in Japan, her husband was working in Japan, her parents andbrother were resident in China, while her sister was resident in Seattle. [14] I also agree with the Minister on this point.

The citizenship judge mentioned the fact that the respondent’s daughters wereborn in Canada, but failed to consider that they attended school in Japan and that the respondent, at the time, had no close family inCanada as her parents and brother resided in China and her sister in Seattle.

[ 15 ] On the third question, the Minister takes issue with the citizen judge’s conclusion that the respondent’s pattern of physical presence in Canada indicated a returning home as opposed to merely visiting the country. The Minister notes that the respondent worked in Japan from November 2001 until March 2006 and that most of her trips to Canada coincided with her children’s summer and Christmas holidays.

I agree that this is a concern as well. [ 16 ] On the fifth question, I agree with the Minister that the citizenship judge failed to consider that the respondent’s absences from Canada during the relevant period were structural in nature and not merely temporary. [ 17 ] On the sixth question, the Minister submits that the passive indicia mentioned by the citizenship judge – such as her driver’s licence, her Canadian investments, etc. – are insufficient to demonstrate a substantial connection to Canada .

According to the Minister, the citizenship judge should have compared the respondent’s connection to Canada with her connection to Japan . [ 18 ] I agree with the Minister that the mere existence of “passive” indicia such as income tax returns, medical insurance, bank accounts, are not on their own sufficient to demonstrate a substantial connection ( Hernando Paez v Canada (MCI) , 2008 FC 204 at para. 18 ). [ 19 ] Thus , it is clear from the decision that relevant facts and evidence were not properly assessed by the citizenship judge.

The conclusion of the citizenship judge that the respondent had centralized her life in Canada was unreasonable. [ 20 ] For these reasons, the appeal must be allowed. The decision of the citizenship judge is set aside and the respondent’s application for Canadian citizenship is refused. JUDGMENT THIS COURT ADJUDGES that the appeal is allowed. The decision of the citizenship judge is set aside and Ms. Zhang’s application for Canadian citizenship is refused. “Danièle Tremblay-Lamer” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1586-10 STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION v. ZHAO ZHANG

PLACE OF HEARING: Vancouver , BC DATE OF HEARING: July 5, 2011 REASONS FOR JUDGMENT AND JUDGMENT: TREMBLAY-LAMER J. DATED: July 7, 2011 APPEARANCES : Hilla Aharon FOR THE APPLICANT Zhao Zhang FOR THE RESPONDENT Self-represented SOLICITORS OF RECORD : Myles J. Kirvan Deputy Attorney General of Canada Vancouver, BC FOR THE APPLICANT n/a FOR THE RESPONDENT Self-represented