ZHOU, YONG Applicant v. MINISTER OF, 2013 FC 19

Date: 20130109 Docket: T-955-12 Citation: 2013 FC 19 [UNREVISED ENGLISH CERTIFIED TRANSLATION] Ottawa, Ontario, January 9, 2013 Present: The Honourable Madam Justice Tremblay-Lamer BETWEEN: ZHOU, YONG Applicant and MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR JUDGMENT AND JUDGMENT [ 1 ] This is an appeal by the applicant under subsection 14(5) of the Citizenship Act , RSC 1985, c C-29 (the Act) and

section 21 of the Federal Courts Act , RSC 1985, c F-7, from a decision of the Citizenship Judge denying the applicant’s citizenship application pursuant to paragraph 5(1) (

c) of the Act. I. Facts [ 2 ] The applicant is 35 years old and is from Jiangxi province in China. He has been a permanent resident in Canada since March 31, 2006. [ 3 ] On June 22, 2009, he applied for Canadian citizenship. During the relevant period, from March 31, 2006, to June 22, 2009, the applicant declared that he was absent 79 days for a total of 1178 days that he was physically present in Canada. [ 4 ] On March 9 2012, his application was denied on the basis that he did not meet the requirements of paragraph 5(1) (

c) of the Act . II. Decision of Citizenship Judge [ 5 ] The Citizenship Judge found that she was not satisfied, on a balance of probabilities, that the information provided by the

applicant reflected the number of days of physical presence in Canada. She thus chose to base her analysis on the qualitative test set outin Koo (Re), (FC), [1993] 1 FC 286 (Koo) to determine whether the applicant had a centralized mode of existence inCanada. [6] First, she notes that the applicant arrived in Canada from China on March 3, 2012, a few days before his interview. Theapplicant explained that he was visiting his father in China who had undergone heart surgery.

However, the citizenship judge noted thatthe applicant could not provide details about the surgery without consulting his documents. [7] Regarding employment and income, the applicant did not provide any evidence of employment in Canada. During hisinterview, he confirmed that he had never worked in Canada and that he lived off the money he had saved in Shanghai and financialsupport he received from his parents. Later, he admitted that he had worked for a few weeks in a restaurant with friends and that he hadbeen paid in cash.

She also noted that the applicant had declared different amounts in his federal and provincial tax returns for the 2006to 2009 taxation years. He explained that he had received bursaries and loans from the province of Quebec.

The Citizenship Judgeobserved that the applicant did not seem to be familiar with the information contained in his own income tax returns and that it was anindication that the applicant’s life was not centralized in Canada. [8] With respect to education, the applicant attended three postsecondary institutions in Quebec: Concordia University,University of Quebec at Montréal (UQAM) and McGill University. He earned a bachelor’s degree in information security fromConcordia University. He explained that it was very difficult to find work in his field.

He stated that he dropped out of school because oflanguage difficulties and the management program at McGill University. [9] With respect to the applicant’s residency and travel, the Citizenship Judge concluded that his statements were incoherent. Hestated that he travelled to China several times to take care of his father. He also submitted a few leases to demonstrate his residency inCanada. However, only one lease is in the applicant’s name, and it is for only three months in 2006.

The applicant provided statementsfrom a few people who allegedly had lived with him (whose names are on the other leases) but none of these statements were certified bya commissioner for oaths or a notary. [10] The Citizenship Judge also drew a negative inference from the fact that the applicant could not name one store in the Verdunneighbourhood of Montréal, the neighbourhood where the applicant claims to have lived.

She also noted that the applicant has no familyin Canada. [11] Thus, the Citizenship Judge found that it was difficult to clearly determine the amount of time the applicant spent in Canadaand that Canada was not the country where the applicant “regularly, normally, or customarily lives”. III. Issue [12] Did the Citizenship Judge commit a reviewable error? IV. Standard of review [13] The applicable standard of review for a decision by a citizenship judge determining whether a person has met the conditionsset out in paragraph 5(1)(

c) of the Act is reasonableness (El-Kashef v Canada (Minister of Citizenship and Immigration), 2012 FC 1151at paragraph 10; Canada (Minister of Citizenship and Immigration) v Raphaël, 2012 FC 1039 at paragraph 17; Pourzand v Canada(Minister of Citizenship and Immigration), 2008 FC 395 at paragraph 19, Canada (Minister of Citizenship and Immigration) v Saad, 2011FC 1508 at paragraph 9). [14] Thus, the Court must show deference and determine whether the findings of the citizenship judge are justified, transparent andintelligible such that they fall “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”(Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph 47).

V. Positions of the parties A. Applicant’s arguments [15] The applicant submits that the Citizenship Judge placed an additional burden of proof on him by applying both the physical

presence and qualitative tests. [16] The Citizenship Judge did not seem to question the evidence from the passport as well as the immigration stamps on it thatdemonstrate the applicant’s physical presence in Canada during the time required by the Act. She relied on the applicant’s replies at hisinterview to find that he did not have a centralized mode of existence in Canada. This type of analysis is unreasonable because it does notplace any probative value on the voluminous documentary evidence filed by the applicant in support of his application.

A seriousanalysis of the file shows that the applicant had the required number of days, an essential condition for obtaining citizenship. B. Respondent’s arguments [17] The respondent submits the case law has clearly established that the concept of “residence” may be interpreted three differentways and that the citizenship judge may choose which test he or she would like to use (Mizani v Canada (Minister of Citizenship andImmigration), 2007 FC 698 at paragraphs 10-13). The judge still has this choice even when the applicant meets the quantitative test ofphysical presence.

If this were not the case, would it be logical to give the citizenship judge the choice of three tests? [18] In this case, the Citizenship Judge chose to use the test set out in Koo to determine whether the applicant “regularly, normally,or customarily” lived in Canada or if he had “centralized his mode of existence” there (Wu v Canada (Minister of Citizenship), 2005 FC240). [19] Essentially, the Citizenship Judge’s finding is reasonable because it is based on the lack of evidence of the extent of theapplicant’s physical presence in Canada before his absence, on the fact that he has no family in Canada, that the length of his physicalabsences were not quantifiable nor attributable to a particular situation and that he did not demonstrate any significant attachment toCanada.

VI. Analysis [20] For the following reasons, I am of the opinion that when an applicant demonstrates, based on reliable evidence, physicalpresence of at least 1,095 days in Canada during the relevant period, the Citizenship Judge cannot ignore this evidence in order to rely onthe qualitative test. [21] As Justice Harrington stated in Canada (Minister of Citizenship and Immigration) v Salim, 2010 FC 975 (Salim), over theyears, three schools of thought have developed in the case law regarding the residency obligation set out in paragraph 5(1)(

c) of the Act.The first one, which is quantitative, argues that the wording of the Act is clear and deals only with physical presence in Canada duringthree of the four years preceding the application (Re Pourghasemi, [1993] FCJ 232). The second one states that the simple intention tolive in Canada is sufficient as long as some connection with Canada is maintained, the “centralized mode of existence test” (RePapadogiorgakis, (FC), [1978] 2 FC 208).

The third and last jurisprudential school, developed in Koo, is the mostcommon: according to this school, the citizenship judge analyzes six different factors to determine whether the applicant “regularly,normally, or customarily lives” in Canada. [22] Justice Lufty (the former chief justice) examined these three lines of jurisprudence in Lam v Canada (Minister of Citizenshipand Immigration), (FC), [1999] FCJ 410 (Lam).

He found that given the incertitude regarding the appropriate test, itwas open to the citizenship judge to adopt either one of the conflicting schools, specifying that “if the facts of the case were properlyapplied to the principles of the chosen approach, the decision of the citizenship judge would not be wrong”. (Lam at paragraph 14). [23] However, I would stress the important nuance that Justice O’Reilly stated in Canada (Minister of Citizenship andImmigration) v Nandre, 2003 FCT 650 at paragraph 21 (Nandre): … I find that the qualitative test set out in Papadogiorgakis and elaborated upon in Koo should be applied where an applicant has not metthe physical test.

I should add that I do not regard the qualitative test as one that is easy to meet.

A person's connection to Canada wouldhave to be quite strong in order for his or her absences to be considered periods of continuous residency in Canada (Emphasis added). [24] In this respect, in Elzubair v Canada (Minister of Citizenship and Immigration), 2010 FC 298, Justice Zinn explains thefollowing at paragraphs 14 and 15: When a citizenship judge finds that an applicant was physically present in Canada for at least 1095 days, the required minimum period,then residence is proven, and resort to the more contextual Koo test is unnecessary.

The Koo test need only be relied on where theapplicant has been resident in Canada, but has been physically present in Canada for less than 1095 days. In that situation, citizenship

judges must apply the Koo test to determine whether the applicant was resident in Canada, even though not physically present here. In this case, the Citizenship Judge concluded that the applicant was physically present in Canada for 1148 days during the relevantperiod, so it was unnecessary to assess her residency according to the Koo test. Presumably the Citizenship Judge first determined thatthe respondent had established residency in Canada, although that is not stated in the reasons he provided. [25] Justice Harrington fully endorsed these reasons in Salim.

At paragraph 10, my colleague stated “that if the applicant has beenphysically present for at least 1095 days during the relevant period, the residency test has been satisfied.

If not, the Citizenship Judgemust go on to consider whether Canada is a place where the applicant “regularly, normally or customarily lives” (see also paragraph 21of Salim). [26] Indeed, it would be illogical and contrary to the wording of the act to apply the qualitative test when an applicant hasestablished that he was present in Canada for at least 1095 days during the relevant period, since the Act clearly states that a permanentresident must have “within the four years immediately preceding the date of his or her application, accumulated at least three years ofresidence in Canada”. [27] Moreover, the qualitative test in Koo was developed in order to allow an applicant who does not meet the minimum residencyrequirements under paragraph 5(1)(

c) of the Act to obtain Canadian citizenship if that person can establish that he or she “regularly,normally, or customarily” lived in Canada despite several absences from the country. [28] In Martinez-Caro v Canada (Minister of Citizenship and Immigration), 2011 FC 640, Justice Rennie convincingly explainedthe plain

interpretation that paragraph 5(1)(

c) of the Act must be given to find that it is based on the physical presence test. Thisinterpretation “must be read … harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (ReRizzo & Rizzo Shoes Ltd, (SCC), [1998] 1 RCS 27 at paragraph 21). At paragraph 30, he explains: In construing the statute, the fundamental question, therefore, is, why did Parliament prescribe at least three years of residency in thefour years preceding the application?

The use of the words at least, in the Act indicates that 1,095 days is the minimum number of days agiven citizenship applicant must accumulate. Parliament provided to would-be citizens the flexibility to accumulate 1,095 days over thecourse of four years, or 1,460 days. Accumulation by its ordinary meaning, imports a quantitative analysis. A test of accumulation is,quite separate and distinct from tests of citizenship based on intention or where one centers ones life.

Intention cannot be accumulated asthe statute dictates nor does the concept of “centralizing ones mode of life” fit well with the quantitative elements of the words at least. [29] There is no doubt that Parliament’s use of the word “accumulate” requires a certain quantitative analysis because it is clearthat a person cannot “accumulate” an intention to reside.

The physical presence test complies best with the Act (see also JusticeMainville’s analysis in Canada (Minister of Citizenship and Immigration) v Takla, 2009 FC 1120, 359 FTR 248 [Takla]). [30] However, at the moment, the Federal Court has not reached a consensus on the correct

interpretation of paragraph 5(1)(c).Given this situation, and since the majority of decisions support the qualitative approach developed in Koo, I do not believe that thequalitative test should be completely set aside in favour of the quantitative test. Although I recognize, like Justice Mainville in Takla, thatwe must promote coherence among decisions of administrative tribunals, I have no choice but to accept, like many other judges, thatwhen the physical presence test is not met, the citizenship judge may take a qualitative approach.

However, when reliable evidencedemonstrates that the applicant has accumulated the minimum number of days required under paragraph 5(1)(c), I do not believe that it isopen to the citizenship judge to use another approach. [31] In this case, the Citizenship Judge ignored important evidence such as the applicant’s passport and the immigration stampsthat confirm his statement that was absent only 79 days during the relevant period. Even when applying the qualitative test from Koo, shehad to comment on this point to indicate whether the applicant was present for an extended period before being absent.

The CitizenshipJudge merely noted that he returned to Canada a few days before the interview and several of her questions went beyond the relevantperiod (2010, 2011, 2012). Moreover, other evidence corroborated his physical presence in Canada, such as the credit card statements(statements for 2006 to 2009), telephone and hydro bills in his name, a lease, statements from room-mates, studies in Canada and thediploma he received from Concordia University.

The Citizenship Judge could not set aside this voluminous documentary evidencewithout ruling on the applicant’s presence in Canada during the period set out by the Act.

[ 32 ] In short, I believe that the Citizenship Judge erred in applying the approach from Koo when there was overwhelming evidence in the record to conclude that the applicant was physically present in Canada. This conclusion is unreasonable and allows the Court to intervene. [ 33 ] For these reasons, the appeal is allowed and the file is referred back to another citizenship judge for redetermination in accordance with these reasons. JUDGMENT THE COURT ORDERS AND ADJUDGES that the appeal be allowed.

The file is referred back to another citizenship judge for redetermination. “Danièle Tremblay-Lamer” Judge Certified true translation Monica F. Chamberlain, Translator FEDERAL COURT SOLICITORS OF RECORD DOCKET : T-955-12 STYLE OF CAUSE : Zhou, Yong v Minister of Citizenship and Immigration PLACE OF HEARING : Montréal, Quebec DATE OF HEARING : December 19, 2012 REASONS FOR JUDGMENT AND JUDGMENT : TREMBLAY-LAMER J.

DATED: January 9, 2013 APPEARANCES : Jean-François Bertrand FOR THE APPLICANT Catherine Brisebois FOR THE RESPONDENT SOLICITORS OF RECORD : Bertrand, Deslauriers Avocats Inc. Montréal, Quebec POUR THE APPLICANT William F. Pentney, Deputy Attorney General of Canada Montréal, Quebec FOR THE RESPONDENT