Lam v. Canada ( Minister of Citizenship and Immigration )
T-1310-98
Lutfy J.
26/3/99
19 pp.
Appeal from Citizenship Judge's decision applicant did not meet residency requirements in Citizenship Act, s. 5(1)(c)-Applicant physically present in Canada 621 of required 1095 days during four-year period immediately prior to filing application for citizenship-Applicant entered Canada in November 1993, married husband in Canada in February 1994, employed in Vancouver between October 1994 and February 1996-Bought house with husband in April 1995-Paid taxes in Canada on employment income-Acquired permanent resident status in February 1995-In February 1996, decided to accompany husband to China where assigned by Greenpeace Canada, initially until July 1996 but finally until end of 1998, to set up new office-Applied for citizenship in July 1997-Appeal allowed-Applicable standard of review in statutory appeal-Review of Trial Division case law over past two decades when citizenship appeals proceeded by way of trial de novo-Some judges of view residency requirement in Act, s. 5(1)(c) entailing more than mere counting of days; matter of quality of attachment to Canada: Papadogiorgakis (In re) and in re Citizenship Act, [1978] 2 F.C. 208 (T.D.); Banerjee (Re) (1994), 25 Imm. L.R. (2d) 235 (F.C.T.D.)-Other judges have adopted view residency requirement to be strictly applied: Harry, Re (1998), 144 F.T.R. 141 (F.C.T.D.)-Third approach found in Koo (Re), [1993] 1 F.C. 286 (T.D.): appropriate test whether Canada place where that person regularly, normally or customarily lives or has centralized mode of existence; in making determination, relevant criteria should include length of person's stays in Canada, residence of person's immediate and extended family, extent and reasons for physical absences, quality of connection with Canada in comparison with other countries and whether time spent in Canada indicating returning home or mere visit-As Act, s. 14(6) precluding any appeal from F.C.T.D. decision, conflicting case law still unresolved-Therefore, three approaches available-Until now, F.C.T.D. judges presiding over de novo hearings have generally felt free to substitute their view of residency requirement for one expressed in decision under appeal-Bill C-63 proposing to clarify residency requirement by specifying day of residence requiring physical presence in Canada-Bill C-63 also removing statutory appeal-Issue to be determined whether T.D.' s scope of review has changed where appeal dealt with as application and not as trial de novo-Judgment of F.C.T.D. sitting in appeal of Citizenship Judge decision not appealable, except where T.D. judge certifies serious question of general importance-Citizenship Judges and members of IRB appointed by Governor in Council during pleasure only-Review of Citizenship Judges' decisions should be on standard more deferential than correctness-Citizenship Judges well-positioned to assess residency requirement in light of Act, s. 5(1)(c) and relevant case law-However, residency issue to be resolved by Citizenship Judge less complicated than those addressed by tribunals with relatively comparable expertise-Nature of problems, complexity and special experience of tribunal highlights some of differences which may suggest standard of review that varies according to circumstances, even where issue mixed question of law and fact-Even though objective factors might dictate more deference to decisions of Citizenship Judges, now neither time nor environment in which to depart radically form current standard of review-Justice and fairness, both for citizenship applicants and Minister, require some continuity with respect to standard of review while current Act still in force and despite end of de novo trials-Appropriate standard, in these circumstances, one close to correctness end of spectrum-However, where Citizenship Judges, in clear reasons which demonstrate understanding of case law, properly decide facts satisfy their view of statutory test, reviewing judges ought not to substitute arbitrarily their different opinion of residency requirement-To this extent some deference owed to special knowledge and experience of Citizenship Judge during period of transition-Herein, Citizenship Judge did not focus on circumstances of applicant's presence in Canada, prior to her joining her husband in China in February 1996-In Koo (Re), supra, one of relevant criteria whether, as applicant herein, absence from Canada may have been due to accompanying spouse who has accepted temporary employment abroad-Citizenship Act, R.S.C., 1985, c. C-29, ss. 5(1)(c), 14(6)-Bill C-63, An Act respecting Canadian Citizenship, 1st Sess., 36th Parl. (first reading, December 7, 1998, second reading, March 1, 1999).