Date: 20000628
Docket: T-1988-99
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
CHING SHAN YEUNG
Respondent
REASONS FOR JUDGMENT
DAWSON J.
[1] On April 8, 1998, Mr. Yeung, the respondent in this proceeding, completed an application for Canadian citizenship. At that time he had been present in Canada for 846 of the 1,095 days preceding his citizenship application.
[2] Citizenship Judge D. Wicks, in a decision dated September 20, 1999, approved Mr. Yeung"s application for citizenship.
[3] In this proceeding, the Minister of Citizenship and Immigration appeals from that decision pursuant to subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 (the "Act").
FACTUAL BACKGROUND
[4] Mr. Yeung was born in Hong Kong in 1948.
[5] He entered Canada and acquired landed immigrant status on January 27, 1994.
[6] Mr. Yeung bought a house in Richmond Hill, Ontario in June of 1994, but did not sell his home and parking space in Hong Kong until June 1996.
[7] Mr. Yeung"s wife and children entered Canada with Mr. Yeung and live in Richmond Hill, Ontario. They were granted Canadian citizenship in December of 1997.
[8] Mr. Yeung has worked, and continues to work, in his family business.
[9] That business is a small trading firm, dealing in the export of garment accessories from Hong Kong to East Africa. While his sister is involved in the company on a day-to-day basis, Mr. Yeung oversees its management. He has not started any business in Canada.
THE ISSUES
[10] The Minister raised two issues with respect to the decision of the Citizenship Judge:
| 1. Did the respondent satisfy the requirement prescribed under paragraph 5(1)(c) of the Act that within the four years immediately preceding the date of his citizenship application, he had accumulated at least three years of residence in Canada?; and, |
| 2. Did the Citizenship Judge err in fact or in law when she approved the respondent"s application for citizenship? |
THE STANDARD OF REVIEW
[1] In Lam v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 410, Justice Lutfy of this Court, as he then was, discussed the appropriate standard of review when this Court considers appeals brought from a decision of a Citizenship Judge. At paragraph 33 of his reasons he stated:
| [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. |
[2] It is therefore necessary to determine whether or not the Citizenship Judge in clear reasons demonstrated an understanding of the case law and properly decided that the facts of this case satisfied her view of the statutory test prescribed in paragraph 5(1)(c) of the Act.
ANALYSIS
[3] In this matter, as in many others, the Citizenship Judge"s decision on the residence requirement is set forth on a form where the judge filled in a number of blanks. As completed by the Citizenship Judge, the decision is as follows (the underscored information is that filled in by the judge):
| At the hearing held before me on 20.7.99, I found that the applicant met all the requirements for citizenship set out in the Citizenship Act ("Act") with the possible exception of the requirement of residence. |
| The applicant had a shortage of 249.0 days with respect to meeting the minimum requirement of three years residence in Canada as provided in the Act as a result of temporary absence(s) from Canada during the applicant"s four years (or less) residence period as the case may be. |
| After considering the Residence Questionnaire and other documentation, etc., listed in Appendix 1 hereto submitted by the applicant and facts presented by the applicant at the hearing or subsequent thereto, I have concluded that the applicant had established a residential base and a centralized mode of living in Canada, and that the applicant has continued to maintain a residential base and a centralized mode of living in Canada during such temporary absence(s) and that during such temporary absence(s) the applicant had no intention of residing in any country other than Canada. |
| Decision: |
| I have decided that the applicant fully meets the residence requirement of Section 5(1)(c) of the Act within the framework outlined by Associate Chief Justice Thurlow (as he then was) in Re: Papadogiorgakis T-872-78. I have therefore, approved the application for citizenship of . |
[4] From this, with respect, it can be seen that there are no clear reasons which demonstrate an understanding of the case law or which analyse how it is that the facts of this case satisfy the test applied by then Associate Chief Justice Thurlow in Re Papadogiorgakis, [1978] 2 F.C. 208 (T.D.).
[5] The record before me indicates that having landed in Canada on January 27, 1994, Mr. Yeung remained in Canada until April 7, 1994 when he returned to Hong Kong for 57 days. He then returned to Canada and at some time between his return on June 3rd and his next departure on July 19th, he bought the home in Richmond Hill. His July 19th absence was for 21 days. He then returned on August 9th and remained in Canada until October 11th when he again left for Hong Kong on business where he remained for the next 87 days.
[6] From this record, absent any reasons from the Citizenship Judge, I am unable to conclude how it was that the judge satisfied herself that Mr. Yeung established a residential base and a centralized mode of living in Canada, and then continued to maintain that residential base.
[7] All of Mr. Yeung"s subsequent absences from Canada resulted from his involvement with his family business in Hong Kong. The decision to continue to pursue that business interest, of necessity, would limit the number of days Mr. Yeung would be able to stay in Canada. Again, there is no analysis of this by the Citizenship Judge.
[8] In support of the decision, Mr. Yeung pointed to the fact that his family lives here, that he owns his home and cars here free of all debt, that he has only been away for 34 days in 1999 and that he could not sell his home in Hong Kong earlier due to market conditions there.
[9] With respect to the latter two points, as I indicated to Mr. Yeung during the hearing of the appeal, the Citizenship Act requires the calculation of time of residence to be for a period that immediately precedes the date of the application for citizenship so that his conduct in 1999 is not relevant for the purpose of the appeal. There was no evidence before the Court as to why the home in Hong Kong was sold when it was.
[10] Mr. Yeung also stated that when he was interviewed by the Citizenship Judge, she asked him many questions and she therefore must have been satisfied with the adequacy of his response. Unfortunately, the nature of the questions and the appropriateness of the answers is not something that I can assess based on the reasons provided by the Citizenship Judge.
[11] Mr. Yeung pointed to the fact that in many of the cases where this Court has considered the residence requirement, the applicant"s absences from the country have been far more extensive than Mr. Yeung"s. That is undoubtedly true, however it remains that Mr. Yeung must still have properly satisfied the Citizenship Judge that he had established a residential base and a centralized mode of living in Canada and maintained it during temporary absences from Canada.
[12] As a result of the absence of any indication that the Citizenship Judge understood the case law and properly decided that, on the facts of this case, Mr. Yeung satisfied the residence requirement, I am unable to defer the decision of the judge.
[13] During the period from April 7, 1994 to December 12, 1997, Mr. Yeung was away from Canada on business for 614 days. On the record before me, I am not satisfied that Mr. Yeung met the residence requirement.
[14] Mr. Yeung stated that should he not succeed in maintaining the decision of the Citizenship Judge, he would simply reapply for citizenship and would now be able to meet the residence requirement.
[15] It may well be that the present application for citizenship was premature and that Mr. Yeung will succeed on a further application for citizenship. My decision is in no way intended to cast any negative reflection on Mr. Yeung, who I hope will make a fine citizen.
[16] For the foregoing reasons, the appeal should be allowed.
"Eleanor R. Dawson"
Judge
Ottawa, Ontario
June 28, 2000