Date: 19990813
Docket: T-1012-98
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Appellant,
- and -
PI-HSIA KUO YEN,
Respondent.
REASONS FOR JUDGMENT
MULDOON J.
[1] The appellant Minister of Citizenship and Immigration (the Minister) appeals, pursuant to subsection 14(5) of the Citizenship Act , R.S.C. 1985, c. C-29 (the "Act"), the decision of Citizenship Judge Marguerite Ford, dated March 18, 1998, in which the citizenship judge approved the respondent"s application for Canadian citizenship. The appellant contends that the respondent failed to meet the residency requirements set out in paragraph 5(1)(c ) of the Act, as he had been physically present in Canada for only 359 days, thus falling 756 short of the required 1 095 days.
Background
[2] The respondent, Pi-Hsia Kuo Yen, is a 42 year old citizen of Taiwan. She was granted permanent residence status on April 4, 1994. Shortly thereafter, she left Canada to return to Taiwan for business reasons. Two of the respondent"s sons reside in Canada in a house owned by the respondent; they attend school in Vancouver, while the respondent"s youngest son and husband remain in Taiwan. The vast majority of the respondent"s absences are for business reasons, and all of them involve travel to Taiwan (appellant"s record, tab 2, tribunal record, p. 8).
[3] The respondent owns a Canadian company, Captain Stephen"s Enterprises Ltd., which provides consulting services for importers of wood based ornaments manufactured in Taiwan, the Philippines, and China. The company was incorporated in 1996 and employs the respondent"s two oldest sons, who reside in Vancouver.
[4] At the time the respondent submitted her application for Canadian citizenship, on July 27, 1997, she had accumulated only 359 days of physical presence in the four years immediately preceding her application. She included with her application the so called passive indicia of commitment to Canada: social insurance number, B.C. Care Card, B.C. driver"s license, record of landing, RRSP statements, Revenue Canada forms, and a letter of reference, as well as her two sons" drivers" licenses, YMCA membership cards, library cards, and the report card of one son.
Citizenship Judge"s Decision
| [5] In her reasons for decision, Citizenship Judge Ford noted,Although she has been out of the country more days than she has been in, she has established residence because she owns property, has a drivers license, medical card, and other evidence of residence. Her children are resident in Canada and have applied for citizenship. Her absences have been due to business for a locally located import company. |
(Appellant"s record, tab 2, tribunal record, p. 32)
Appellant" s Position
[6] The appellant submits that paragraph 5(1)(c) requires physical presence, and relies on this Court"s decision in Re Pourghasemi (1993), 19 Imm.L.R. (2d) 259 (F.C.T.D.), which set out the purpose of the residence requirement as to insure that citizenship candidates have become, or have been presented with the compulsory opportunity to become, Canadianized.
[7] In the alternative, the appellant submits that the citizenship judge erred even under the more lax approach to paragraph 5(1)(c). The respondent submits that the evidence does not show that the respondent has centralized her mode of living in Canada. Her pattern of absences demonstrate that she merely visits Canada, while continuing to reside in Taiwan; her absences are extensive; she failed to establish residency in Canada initially, having left for Taiwan some 38 days after being granted permanent residence status; she continues to own property in Taiwan and resides there in a home owned by her husband; her only attachment to Canada is the fact that two of her sons reside in Vancouver; and, while she identifies herself as a businessperson, she has declared no income on her Canadian tax returns other than limited income from her Taiwanese rental property. It should be noted that centralizing one"s mode of living is not an expression employed by Parliament.
[8] The appellant also takes issue with much of the respondent"s affidavit, arguing that it contains information and evidence that was not before the citizenship judge and thus should play no part in this judicial review (appellant"s record, tab 3, cross-examination of the respondent, pp. 6-20).
Respondent" s Position
[9] The respondent submits that paragraph 5(1)(c) does not mandate physical presence. If a mere mathematical calculation of the number of days of presence was determinative, the respondent argues, there would be no need for a hearing before a citizenship judge. The respondent argues that her absences were mainly for business purposes, with some vacation. She claims that her Asian contacts were vital to the development of her new business in Canada.
[10] The respondent maintains that the citizenship judge did not err in finding that she had fulfilled the residency requirements because her quality of attachment to Canada is demonstrated by her commitment to develop her local business and raise her family in Canada. The respondent points out that she frequently returned to Canada during the relevant four year period"some 17 times, in fact.
Issue
[11] Whether the citizenship judge erred when she found that the respondent had satisfied the residency requirements set out in paragraph 5(1)(c) of the Citizenship Act.
Analysis
[12] The residency requirements of paragraph 5(1)(c) of the Act are as follows:
| 5(1) The Minister shall grant citizenship to any person who: (c) has been lawfully admitted to Canada for permanent residence, has not ceased since such admission to be a permanent resident pursuant to section 24 of the Immigration Act, and has, within the four years immediately preceding the date of his application, accumulated at least three years of residence in Canada calculated in the following manner: i. for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and ii. for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence. |
[13] Most discussions in the relevant jurisprudence regarding residency seem to start by making reference to the judgment of Thurlow A.C.J. in Re Papadogiorkakis, [1978] 2 F.C. 208 (T.D.). That particular case considers residence as the equivalent of having centred one"s life in a place to which one habitually returns; it is mainly a matter of degree to which a person in mind and fact settles into, maintains, or centralizes his or her ordinary mode of living.
[14] Taking account of the frequency with which applicants" counsel cite it, the case of Papadogiorkakis has surely become the darling of the private bar. Is it because that case is of a certain era? That cannot be the reason, for in the same volume, [1978] 2 F.C. of the Federal Court reports, appears the judgment in Khoury, p. 75, also a question of residence to qualify for a grant of citizenship, also decided by an experienced and distinguished judge of this Court, Mr. Justice A. M. Walsh. Walsh J. came to a diametrically opposite conclusion from that expressed in the other case, decided by Thurlow A.C.J. The case of Habib Khoury, above cited, merits no less respect than its companion. Era of decision is not the key to understanding these cases, but faithful adherence to the statute enacted by this democracy"s Parliament is the key.
[15] Subsequent use of this case, and Thurlow J."s comments therein, has stretched its meaning entirely out of context and proportion, and it is now used to justify grants of citizenship to even the most marginal of applicants, those who seem to take a rather cavalier attitude towards Parliament"s legislated requirement. The language of paragraph 5(1)(c ) cannot be any more clear: it requires presence, in Canada, for three out of four years immediately preceding one"s application. Some absence is permissible, hence the three out of four years" requirement. It is distressing, irritating, and frustrating to see Thurlow J."s comments being regularly used to thwart the will of Parliament.
[16] In Re Pourghasemi (1993), 19 Imm.L.R. (2d) 259 (F.C.T.D.), this Court commented,It is clear that the purpose of paragraph 5(1)(c ) is to ensure that everyone who is granted precious Canadian citizenship has become, or at least has been compulsorily presented with the everyday opportunity to become, "Canadianized". This happens by "rubbing elbows" with Canadians in shopping malls, corner stores, libraries, concert halls, auto repair shops, pubs, cabarets, elevators, churches, synagogues, mosques and temples " in a word wherever one can meet and converse with Canadians " during the prescribed three years. One can observe Canadian society for all its virtues, decadence, values, dangers and freedoms, just as it is. That is little enough time in which to become Canadianized. If a citizenship candidate misses that qualifying experience, then Canadian citizenship can be conferred, in effect, on a person who is still a foreigner in experience, social adaptation, and often in thought and outlook.
[17] It cannot be stressed enough, apparently, that in order to Canadianize oneself, one must reside amongst Canadians and, preferably, interact with them. This cannot be achieved by opening bank accounts, purchasing property and furnishings, signing up for library cards and the like, and depositing one"s children here while remaining abroad. Whether the residence requirement is too rigid and imposes undue hardships is for Parliament to decide, not this Court.
Conclusion
[18] The respondent was in Canada for a short period of time, amounting to some 359 days, which falls far short of the required period. The citizenship judge erred when she found that the respondent had satisfied the requirement of paragraph 5(1)(c) of the Citizenship Act. Accordingly, given the respondent"s pattern of prolonged absences from Canada, the appellant"s appeal should be allowed and the decision of Citizenship Judge Ford, dated March 18, 1998, should be set aside on the ground that the requirements of paragraph 5(1)(c ) have not been met.
(Sgd.) "F.C. Muldoon"
Judge
Vancouver, British Columbia
13 August 1999
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-1012-98
| STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
v.
PI-HSIA KUO YEN
PLACE OF HEARING: VANCOUVER, B.C.
DATE OF HEARING: August 12, 1999
REASONS FOR JUDGMENT OF MULDOON, J.
DATED: August 13, 1999
APPEARANCES:
| Ms. Page Purcell for the Appellant |
| Ms. Deborah Carlson for the Respondent |
SOLICITORS OF RECORD:
Mr. Morris Rosenberg
Deputy Attorney General
| of Canada for the Appellant |
Swinton & Company
| Vancouver, BC for the Respondent |