2011 FC, 2011 FC 1337

Date: 20111121 Docket: T-269-11 Citation: 2011 FC 1337 Toronto, Ontario, November 21, 2011 PRESENT: The Honourable Madam Justice Snider BETWEEN: MAO YE Applicant and CITIZENSHIP AND IMMIGRATION CANADA Respondent REASONS FOR JUDGMENT AND JUDGMENT [1] The Applicant, Mr. Mao Ye, became a permanent resident of Canada on June 1, 2005. On February 3, 2009, he applied forCanadian citizenship.

In a decision dated December 22, 2010, a Citizenship Judge denied the application on the basis that he was notsatisfied that the Applicant had accumulated the required 1,095 days of residence in the four years (1,460 days) immediately precedingthe application date. Specifically, the Judge found that the Applicant was short 978 days of the minimum requirement. The CitizenshipJudge concluded that the Applicant had not met the requirement for residency under s. 5(1)(

c) of the Citizenship Act, RSC 1985, c C-29[Citizenship Act or Act]. [2] The Applicant seeks to have this decision overturned, raising the following issues: 1. Did the Citizenship Judge err by applying the physical presence test set out in Re Pourghasemi (1993), 62 FTR 122 (QL), 39ACWS (3d) 251 (TD) [Re Pourghasemi], rather than the qualitative test set out in Re Koo (1992), (FC), [1993] 1 FC286 (QL), [1992] FCJ No 1107 (TD) [Re Koo]? a. Did the Judge, through his statements and actions at the interview, raise a reasonable apprehension of bias? [3] This is an appeal pursuant to s. 14(5) of the Citizenship Act.

Such appeals proceed by way of application based on the recordbefore the citizenship judge and are governed by the Federal Courts Rules, SOR/98-106, pertaining to applications: Rule 300(c);Canada (Minister of Citizenship and Immigration) v Wang, 2009 FC 1290, 87 Imm LR (3d) 184. There are no further appeals fromdecisions of this Court. If the matter is not sent back for re-determination, an unsuccessful applicant who meets the statutory criteria mayreapply. [4] An applicant who meets the criteria set out in s. 5 of the Citizenship Act will be granted citizenship. A certain period ofresidence is required.

Pursuant to s. 5(1)(c), an applicant for citizenship must demonstrate that he or she has, within the four yearsimmediately preceding the date of his or her application, accumulated at least three years of residence in Canada.

[5] There is no definition of “resident” or “residence” under the Citizenship Act. [6] In this case, the Citizenship Judge applied the

interpretation of s. 5(1)(

c) of the Act as set out in Re Pourghasemi, above. Herequired that the Applicant demonstrate 1,095 days of physical presence in Canada. The Applicant was not just a few days short; theevidence demonstrates that he was absent from Canada for all but 117 days in the four year period prior to his application for citizenship. [7] The Federal Court has, over the years, endorsed three different approaches to the question of how to interpret the words“resident” and “residence” in the legislation.

Briefly stated, the three lines of jurisprudence fall into two categories: the “quantitativeapproach” and the “qualitative approach”. The quantitative approach is encompassed in the Re Pourghasemi test, applied by theCitizenship Judge in this case, which asks whether the applicant has been physically present in Canada for 1,095 days out of the last fouryears. This has been referred to as the “physical presence” test. The qualitative approach was articulated in Re Papadogiorgakis (FC), [1978] 2 FC 208 (QL), 88 DLR (3d) 243 [Re Papadogiorgakis] and refined in Re Koo, above.

The test in Re Koo, asfirst utilized by Justice Reed, allows the citizenship judge to analyze six factors to determine whether an applicant has met therequirement of residence by his or her “centralized … mode of existence”, even where the applicant falls short of the 1,095-dayrequirement. [8] In Lam v Canada (Minister of Citizenship and Immigration) (1999), (FC), 164 FTR 177 (QL), 87 ACWS(3d) 432 (TD), Justice Lutfy noted the divergence in the jurisprudence and concluded that, if a citizenship judge adopted any one of thethree conflicting lines of jurisprudence, and if the facts of the case were properly applied to the principles of that approach, thecitizenship judge’s decision should not be set aside. [9] Over the past two years, some of my colleagues have attempted to galvanize the Court around one or the other of the tests.

InCanada (Minister of Citizenship and Immigration) v Takla, 2009 FC 1120, 359 FTR 248, Justice Mainville determined that thequalitative approach should be the only test. In contrast, Justice Rennie, in Martinez-Caro v Canada (Minister of Citizenship andImmigration), 2011 FC 640, 98 Imm LR (3d) 288 [Martinez-Caro], carried out a careful analysis of the proper statutory

interpretation ofs. 5(1)(

c) of the Act and concluded that the physical presence test was the only correct test. [10] In my view, the matter has come a long way to resolution through the decision of my colleague, Justice Rennie, in Martinez-Caro, above. His decision differs from the others cited because, for the first time, a judge of our Court conducted an exacting analysis ofs. 5(1)(

c) using well-established modern principles of statutory

interpretation. Justice Rennie concluded that application of the principlesof statutory

interpretation supports the physical presence test, and not the qualitative approach. Even if I might quibble with hischaracterization of the standard of review as correctness, his analysis and conclusion are compelling. I adopt his reasons and conclusionon this question. [11] In sum, on this issue, the Citizenship Judge did not err by applying the physical presence test. The Judge’s

interpretation of s.5(1)(

c) of the Citizenship Act to require physical presence for 1,095 days is not unreasonable. In other words, if the standard of review isreasonableness, as established in Lam, above, the Judge did not err. Moreover, if the standard of review is correctness, I adopt thereasoning of my colleague, Justice Rennie, in Martinez-Caro, above, and conclude that the application of the physical presencerequirement is the correct

interpretation of s. 5(1)(c). On either a standard of reasonableness or correctness, the Citizenship Judge did noterr by applying the physical presence test to the facts before him. [12] On the second issue, the Applicant submits that the actions of the Citizenship Judge demonstrated a closed mind or a breachof procedural fairness.

In particular, the Applicant points to three problems: 1. at the commencement of the hearing, the Judge informed the Applicant that he had not lived in Canada long enough toobtain citizenship; 2. the Judge misled the Applicant during the citizenship knowledge test by using certain misleading gestures and unusualpauses, in an alleged attempt to fail the Applicant; and 3. the Judge did not send the Applicant the official decision within the three-month time limit. I am not persuaded that the conduct described rises to the level of a breach of procedural fairness. The remarks allegedly made to the

Applicant at the beginning of his interview were nothing more than a statement of fact; the Applicant did not have sufficient physical presence days to meet the requirements of the Citizenship Act . The Applicant passed the knowledge test even though he believes that the Judge improperly suggested incorrect answers. Finally, the slight delay in providing the official decision to the Applicant was not material. I accept that the Citizenship Judge appears to have been curt with and possibly impolite to the Applicant.

However, I am not satisfied that the Judge’s behaviour amounts to a breach of procedural fairness. [ 13 ] For these reasons, the appeal will be dismissed. JUDGMENT THIS COURT’S JUDGMENT is that t his Court orders and adjudges that the appeal of the Citizenship Judge’s decision is dismissed. “Judith A. Snider” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-269-11 STYLE OF CAUSE: MAO YE v CITIZENSHIP AND IMMIGRATION CANADA PLACE OF HEARING: TORONTO, ONTARIO DATE OF HEARING: NOVEMBER 21, 2011 REASONS FOR JUDGMENT AND JUDGMENT BY: SNIDER J. DATED: NOVEMBER 21, 2011 APPEARANCES :

Mao Ye FOR THE APPLICANT (ON HIS OWN BEHALF) Suran Bhattacharyya FOR THE RESPONDENT SOLICITORS OF RECORD : N/A FOR THE APPLICANT (ON HIS OWN BEHALF) Myles J. Kirvan Deputy Attorney General of Canada Toronto , Ontario FOR THE RESPONDENT