Digests

Chu v. Canada (Minister of Citizenship and Immigration)

T-1350-01

2003 FCT 174, Snider J.

17/2/03

14 pp.

Judicial review of Citizenship Judge's refusal of application for citizenship--Citizenship Act, s. 5(1) sets out criteria for granting of Canadian citizenship--S. 14(5) provides for appeal from decision of Citizenship Judge to Federal Court, Trial Division--Whether application should be dismissed on grounds proceeding improperly constituted--Proceeding inadvertently brought by way of application for judicial review instead of appeal--Federal Court Rules, 1998, r. 57, prohibiting setting aside of originating document on ground different originating document should have been used, applies --In Shun v. Canada (Minister of Citizenship and Immigration) (1996), 35 Imm. L.R. (2d) 211 (F.C.A.), Court held proper recourse appeal, rather than judicial review--S. 14(5) provides comprehensive right of appeal, preventing decision of Citizenship Judge from review under Federal Court Act, s. 18.1--Applicant's motion should be converted to appeal pursuant to r. 57--Evidence suggests use of wrong originating document unintentional error on part of applicant's counsel--Applicant should not suffer for mistake of counsel--Citizenship Judge not erring in fact and in law by not stating which test applied and by not applying to facts Papadogiorgakis (In re) and in re Citizenship Act, [1978] 2 F.C. 208 (T.D.) test--Although not explicitly referring to Papadogiorgakis test, Citizenship Judge did conclude applicant had not centralized mode of existence in Canada-- Demonstrates applied centralized mode of existence test set out in Papadogiorgakis--In Koo (Re), [1993] 1 F.C. 286 (T.D.), Reed J. listed six factors pointing to sufficient attachment to Canada so as to allow for granting of citizenship, even if required minimum number of days not met --Formal indicia of connection to Canada, such as driver's licence, bank accounts, membership cards, not sufficient to establish centralized mode of existence in Canada--Rather, quality of connection to Canada must indicate applicant regularly, normally and customarily resides in Canada--On facts, applicant has substantial number of formal indicia of connection in Canada: applicant and wife own home in North York, Ontario; immediate family resides in home; applicant employed by Canadian corporation; applicant granted returning resident permits; applicant has Ontario health card and driver's licence, social insurance number, Canadian bank account and credit card, and files income tax and benefit returns--But applying Papadogiorgakis test, not clear applicant has centralized mode of living in Canada--Absent for significant amount of time in three years preceding application--Applicant spent some holidays outside of Canada, which does not suggest returns to Canada frequently when opportunity to do so arises--No evidence applicant centralized mode of existence in Canada--Consequently, Citizenship Judge did not err in concluding applicant had not centralized mode of existence in Canada and in denying citizenship application--Application for judicial review converted into appeal of decision of Citizenship Judge and appeal dismissed--Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1 (as enacted by S.C. 1990, c. 8, s. 5)--Federal Court Rules, 1998, SOR/98-106, r. 57--Citizenship Act, R.S.C., 1985, c. C-29, ss. 5(1), 14(5).