Date: 20050616
Docket: T-1987-04
Citation: 2005 FC 861
Vancouver, British Columbia, Thursday, the 16th day of June, 2005
Present: THE HONOURABLE MR. JUSTICE MOSLEY
BETWEEN:
SAMMIE HSUAN-MEI HUANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mrs. Sammie Hsuan-Mei Huang is a citizen of Taiwan and an actress by profession. She came to Canada as a landed immigrant in May 1997. Her application for Canadian citizenship was refused by a Citizenship Judge on September 22, 2004. She appeals that decision pursuant to subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29.
[2] Mrs. Huang claims an application for citizenship was sent on her behalf to Citizenship and Immigration Canada ("CIC") on April 3, 2002. She retained counsel who wrote at least three letters in February and July 2003 on her behalf, but CIC was unable to find anything but a record that she had paid for the application. The payment was accepted by a bank in Vancouver on April 3, 2002 and remitted to CIC. The application form, with the date modified to April 3, 2003 and apparently re-signed by Mrs. Huang, was not received by CIC's processing centre until August 5, 2003.
[3] Mrs. Huang wrote her citizenship test on March 25, 2004 and was called for an oral interview on August 9, 2004 at which the Judge tested her language ability and knowledge about Canada and reviewed her file with her to determine whether she met the residence requirements. An interpreter was present. In April 2004, the Citizenship Court had requested that Mrs. Huang submit a Certificate of Resident Entry and Exit dates from the Taiwan government. This was provided and used for the purpose of calculating the length of time she was present in Canada.
[4] The Citizenship Judge refused the application on the basis that Mrs. Huang had not lived in Canada for the requisite number of days over the last four years as required by paragraph 5(1)(c) of the Citizenship Act and had not persuaded him that she had centralized her mode of existence in Canada such that an exception should be made to the requirement of the Citizenship Act as per the test in Re Koo [1993] 1 F.C. 286; [1992] F.C.J. No.1107 (T.D.) enunciated by Justice Reed.
[5] Paragraph 5(1)(c) of the Act requires that an applicant for citizenship accumulate "at least three years' residence in Canada within a four year period immediately preceding the date of the application". The Citizenship Judge relied upon the four year period prior to April 3, 2003. This resulted in a calculation that Mrs. Huang had been outside of Canada for 740 days and present in Canada for only 720 days during the 1460 days under consideration, and thus 375 days short of the requirement specified in the Act. Had the Judge relied upon the date of April 3, 2002, the shortfall would have been 253 days.
[6] The judge also found under paragraph 5(1)(e) of the Citizenship Act that Mrs. Huang had insufficient knowledge of Canada. The parties agree that as Mrs. Huang had previously passed that portion of the requirements, she should not have been re-tested on her knowledge. However, it is also common ground that this would have made no material difference in the outcome of her application in light of the Judge's findings on the residency requirement.
[7] The issues before me, therefore, are whether the Citizenship Judge erred in accepting the 2003 application date as the basis for calculating the applicant's presence in Canada and whether he erred in applying the test in Re Koo.
[8] Mrs. Huang submits that the standard of review to be applied should be one of correctness or "near correctness": Canada (Minister of Citizenship and Immigration) v. Hung (1998) 148 F.T.R. 237; Lam v. Canada (Minister of Citizenship and Immigration) (1999) 164 F.T.R. 177.
[9] The respondent submits that the standard of review for citizenship appeals is reasonableness simpliciter: Canada (Minister of Citizenship and Immigration) v. Fu 2004 FC 60; Canada (Minister of Citizenship and Immigration) v. Chen 2004 FC 848; Canada (Minister of Citizenship and Immigration) v. Chang 2003 FC 1472; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at para. 55.
[10] However, for purely factual findings the respondent submits the standard should be patent unreasonableness. The Citizenship Judge as the finder of fact has access to the original documents and an opportunity to discuss the relevant facts with the applicant. On citizenship appeals, this Court is a Court of appeal and should not disturb the findings unless they are patently unreasonable or demonstrate palpable and overriding error: Housen v. Nikolaisen, [2002] 2 S.C.R. 235.
[11] In Zeng v. Canada (Minister of Citizenship and Immigration) 2004 FC 1752 , I found that "the question of whether a person has met the residency requirement under the Act is a question of mixed law and fact and that Citizenship Judges are owed some deference by virtue of their special degree of knowledge and experience." Accordingly, I accepted that the appropriate standard of review is reasonableness simpliciter.
[12] Justice Snider in Chen v. Canada (Minister of Citizenship and Immigration) 2004 FC 1693, arrived at the same conclusion noting, "as long as there is a demonstrated understanding of the case law and appreciation of the facts and their application to the statutory test, deference should be shown."
[13] I am persuaded by the respondent's argument that for pure questions of fact greater deference should be shown to the Citizenship Judge's findings resulting in a standard of patent unreasonableness.
[14] Under either standard of review, I see no reason to interfere with the finding that the application was not made until April 2003. Mrs. Huang deposes that it was submitted on her behalf by a nephew in 2002 but there is no evidence from the nephew to that effect. The fact that payment for the application was made in April 2002 does not establish that the application was submitted at that time. The correspondence from Mrs. Huang's lawyer establishes no more than that it was assumed that the application had been submitted. It is apparent from the document itself, that the date was altered to change the last digit from a 2 to a 3 and bears a second signature which appears to be that of the applicant. Finally, there is no record of its receipt by CIC in April 2002.
[15] Accordingly, the Citizenship Judge properly determined that April 3, 2003 was the date from which to calculate the applicant's presence in Canada during the preceding four years.
[16] In providing that applicants may be absent from Canada for up to one year of the four leading up to the application, there is a strong inference that physical presence is required for the other three years: Wu v. Canada (Minister of Citizenship and Immigration) 2005 FC 240; Zhang v. Canada (Minister of Citizenship and Immigration) (2000), 197 F.T.R. 225; Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 896.
[17] If an applicant's physical presence in Canada is insufficient to establish residence, she may be able to rely upon the central existence test:In re Citizenship Act and in re Antonios E. Papadogiorgakis, [1978] 2 F.C. 208. In Re Koo at para. 10, Justice Reed summarized the law on central existence as follows:
The conclusion I draw from the jurisprudence is that the test is whether it can be said that Canada is the place where the applicant "regularly, normally or customarily lives". Another formulation of the same test is whether Canada is the country in which he or she has centralized his or her mode of existence. Questions that can be asked which assist in such a determination are:
1. Was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application 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 1,095-day total it is easier to find deemed residence 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 of study abroad as a student, accepting temporary employment abroad, accompanying a spouse who has accepted employment abroad?
6. What is the quality of the connection with Canada: is it more substantial than that which exists with any other country
[18] Mrs. Huang submits that under the Re Koo criteria, the Citizenship Judge should have found that Canada is the country where she "regularly, normally or customarily lives" or has "centralized her mode of existence". Her husband and daughter live in Canada, her pattern of presence in Canada shows that she is returning home and not merely visiting, the family owns property here and she has joined many community organizations, her absences are related to family emergencies and visits and medical treatment and the quality of her connection with Canada is more substantial than that she has with Taiwan, a factor, she argues, the Citizenship Judge did not expressly address.
[19] From a close review of his reasons and file notes, I am satisfied that the Citizenship Judge considered all of the Re Koo factors in arriving at his decision. He found that Mrs. Huang's absences are structural and a pattern of life, rather than temporary. This was a reasonable conclusion based on the evidence.
[20] The record discloses that Mrs. Huang stayed in Canada for just 18 days after landing before returning to Taiwan. She has never spent an extended period of time in Canada before establishing a pattern of extended absences, including two of more than 100 days. In total, those absences do not fall "a few days short" of the 1095 days required. While her husband and daughter are resident in Canada and have become Canadian citizens, she had not recently resided with them, preferring to live with a cousin when in Canada. Mrs. Huang chose to have surgery and follow-up appointments in Taiwan, not Canada. This does not indicate a centralized mode of existence in Canada.
[21] The application will be dismissed. No questions of general importance were proposed and none will be certified.
ORDER
THIS COURT ORDERS that the application is dismissed. No question is certified.
(Sgd.) "Richard Mosley"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1987-04
STYLE OF CAUSE: SAMMIE HSUAN-MEI HUANG
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: June 14, 2005
REASONS FOR ORDER AND ORDER: MOSLEY J.
DATED: June 16, 2005
APPEARANCES:
Mr. Andrew Z. Wlodyka FOR APPLICANT
Mr. Jonathan Shapiro FOR RESPONDENT
SOLICITORS OF RECORD:
Lowe & Company FOR APPLICANT
Vancouver, BC
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada