Date: 19990401
Docket: T-1414-98
IN THE MATTER OF the Citizenship Act,
R.S.C., 1985, c. C-29
AND IN THE MATTER OF an appeal from the
decision of a Citizenship Judge
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
- and -
FELEX ANDY YANG
Respondent
REASONS FOR ORDER
LUTFY J.:
[1] In his decision of May 12, 1998, the Citizenship Judge concluded that the respondent met the residency requirements in paragraph 5(1)(c) of the Citizenship Act. The respondent was physically within Canada for 534 of the 1095 days required during the four years preceding his application for citizenship. The Minister of Citizenship and Immigration appeals this decision, pursuant to subsection 14(5) of the Act and Rule 300(c) of the Federal Court Rules, 1998.
[2] The respondent, 48, was landed in Canada as an investor immigrant on June 30, 1993. He made an initial investment of $250,000, apparently in a syndicated fund. Upon landing, he was accompanied by his spouse and their two sons, currently 17 and 20. During his first year as a permanent resident, the respondent returned to Taiwan, his country of birth and citizenship, on four business trips for a total period of some 250 days. Counsel for the respondent represents that the purpose of these trips was to allow his client to wind down his outstanding affairs in Taiwan. The respondent has not returned to Taiwan since June 1994.
[3] During the relevant period since 1995, the respondent has travelled to China on eight occasions for business reasons. These are explained in the decision of the Citizenship Judge:
| This Gentleman came to Canada on June 30 1993 and applied for, Citizenship on June 12 1997. Prior to coming to Canada he worked with a Warehouse Equipment Business in Taiwan. Upon his arrival he went to work for a Japanese firm in the Lower Mainland. As things did not work out he decided to establish a business that he and his wife could operate. Unfortunately the business failed. He found it difficult to find employment and decided to go to China and see what opportunities there were. He came up with the idea to make Imitation Marble and spent the last four years developing a formula and putting together a Team in China to test the product. |
| He had to do a lot of research and has trave[l]led all over China looking for materials, certain types of cements and plastic's that he could find in Canada once he has proven his product and move the operation to British Columbia. The reason he is doing his research in Asia is because Transpiration (sic), Materials, and Labor are much cheaper. |
| His product is brand new, looks like and has the strength of Marble. It is cheap and easy to install either in commercial or residential buildings. It does not chip, or crack and provides a smooth or irregular surfaces. It is Acid Proof, easy to clean and can be used in either exterior or interior floors as well as the walls. It looks like marble and is harder than granite. |
| He has 534 days in Canada and is Short 561 days. |
| He owns his own home in Burnaby, pays Property and Income Tax, has several Bank Accounts, various credit cards, and belongs to M.S.A. His Wife is a Canadian Citizen and Teaches at Vancouver Community College. He has two sons, both Canadian citizens. One goes to the University of Waterloo and won the Governor-Generals Academic Medal for 1997. The other son goes to Semiahmoo Secondary School. |
| Mr. Yang has established his family in Canada and believes Canada is his home. When he travels to China he stays in Hotels. Once he has succeeded in creating the new product he intends to establish the plant and business in Canada. |
| I believe his application for Citizenship should be approved. |
[4] In Papadogiorgakis, [1978] 2 F.C. 208 (T.D.), Thurlow A.C.J., as he then was, stated at pp. 213-4:
| It seems to me that the words "residence" and "resident" in paragraph 5(1)(b) of the new Citizenship Act are not as strictly limited to actual presence in Canada throughout the period as they were in the former statute but can include, as well, situations in which the person concerned has a place in Canada which is used by him during the period as a place of abode to a sufficient extent to demonstrate the reality of his residing there during the material period even though he is away from it part of the time. |
This principle was succinctly reiterated by Dubé J. in Banjeree, Re (1994), 25 Imm. L.R. (2d) 235 (F.C.T.D.) at 238: "It is the quality of attachment to Canada that is to be ascertained."
[5] In Koo, Re, [1993] 1 F.C. 286 (T.D.) at 293-4, Reed J. reviewed the case law that had developed in this Court since the leading decision in Papadogiorgakis, some fifteen years earlier. Justice Reed concluded that the appropriate test is whether Canada is the place that the person "regularly, normally or customarily lives" or has centralized their mode of existence. In making this determination, she suggested that the relevant criteria should include the length of the person's stays in Canada, the residence of the person's immediate and extended family, the extent and the reason for the physical absences, the quality of the connection with Canada in comparison with any other country and whether the time spent in Canada indicates a returning home as opposed to a mere visit.
[6] In Lam, Re (25 March 1999), T-1310-98 (F.C.T.D.), I considered the appropriate standard of review in citizenship appeals, in the context of two recent developments. First, with the introduction of the Federal Court Rules, 1998, citizenship appeals no longer proceed by way of trial de novo. A citizenship appeal is now dealt with as an application, pursuant to Rule 300(c). Second, Parliament is currently considering new citizenship legislation which would bring significant changes to the examination and determination of citizenship applications and this Court"s review of the resulting decisions. After noting certain objective factors that might dictate greater curial deference, I concluded that, in view of this transitional period, it would not be appropriate to depart radically from the current standard of review (at paragraph 33):
| Justice and fairness, both for the citizenship applicants and the Minister, require some continuity with respect to the standard of review while the current Act is still in force and despite the end of the de novo trials. The appropriate standard, in these circumstances, is one close to the correctness end of the spectrum. However, where citizenship judges, in clear reasons which demonstrate an understanding of the case law, properly decide that the facts satisfy their view of the statutory test in paragraph 5(1)(c), the reviewing judges ought not to substitute arbitrarily their different opinion of the residency requirement. It is to this extent that some deference is owed to the special knowledge and experience of the citizenship judge during this period of transition. |
[7] On the basis of the documentary record, I can find no error in the reasons of the Citizenship Judge. The respondent and his family have established themselves in Canada. One son is in high school here and the other is studying at the University of Waterloo. His wife and children are now Canadian citizens. The respondent's first employment as a permanent resident was in Surrey, B.C. His remuneration, while subject to Canadian taxation, was not substantial and this employment did not last for a long period of time. Subsequently, the couple's first endeavours in small business did not succeed. As a result of one of his trips to China, the respondent identified a business opportunity in the fabrication of imitation marble. His research and market testing for this product has taken place in China. This explains his more recent absences from Canada. The family is now living in a residence substantially less expensive than their original acquisition which, on the basis of the documentary evidence, has left them with additional equity. This may explain the family's ability to meet their expenses while the respondent pursues his latest business initiative.
[8] Counsel for the applicant referred to Canada (Minister of Citizenship and Immigration) v. Lok (1998), 152 F.T.R. 207, where the person seeking citizenship was only present in Canada for 170 days during the relevant period, his family was living in the house of a friend and he was employed by a company in Hong Kong where his parents and brother lived. The Canadian company he incorporated was determined to be a shell. The decision of my colleague Justice Reed in Lok can easily be distinguished from the facts in this case. Similarly, the applicant's reliance on the decision in Canada (Minister of Citizenship and Immigration) v. Ho, [1998] F.C.J. No. 1911 (QL) (T.D.), where the permanent resident had spent only 157 days in Canada in almost five years, with the remainder of his time spent in Hong Kong, is of little relevance in this proceeding.
[9] The applicant has failed to establish that the respondent has a significant connection to a country other than Canada. He has not returned to Taiwan and his visits to China are to promote his latest business initiative. The decision of the Citizenship Judge is fully consistent with the teachings in Papadogiorgakis and Koo, Re. The respondent's first departure from Canada, some few weeks after his landing, only reflects the usual requirements for an investor immigrant who must respond to his successful application in a timely fashion, without necessarily having completed the move from one's country of previous citizenship. To the extent that the decision under appeal is fully consistent with the case law that I have referred to, I can find no error.
[10] Accordingly, the appeal is dismissed.
J.F.C.C.
Ottawa, Ontario
April1, 1999