T-1204-96
T-1205-96
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
AND IN THE MATTER OF
WAI YI PAULINE MAK,
AND IN THE MATTER OF
YIU YAN MAK,
Appellants.
REASONS FOR JUDGMENT
(Delivered from the Bench, at Toronto, Ontario
Monday, April 7, 1997 as edited)
ROTHSTEIN, J.:
I regret that serious credibility difficulties arise in this case. Mr. Mak was out of the country for some 827 days over the relevant period before his citizenship application. His daughter, Ms. Mak was away for 789 days. The issue is whether notwithstanding their lengthly absences, they centralized their ordinary mode of living in Canada and fulfilled the residency requirements under paragraph 5(1)(c) of the Citizenship Act. Their absences from Canada were said to be for personal and business reasons. Mr. Mak's mother is elderly and has a heart condition. He owns a printing business in Hong Kong, which is the Mak's sole source of income.
While leaving Canada to look after a sick relative has been found not to disqualify a person from citizenship on residency grounds, the facts of each case must be considered. In this case, it seems that Mr. Mak and Ms. Mak periodically were in Hong Kong at the same time. While an older person may well require the assistance of more than one person, in this case there is no explanation of why the assistance of both Mr. Mak and Ms. Mak were required at some times but not at others. While attending to a sick relative is a commendable undertaking, it has not been satisfactorily explained in this case that it was essential for both Mr. Mak and Ms. Mak to be out of Canada for this purpose at the same time.
There is then the question of the appellants' reasons for being away for business purposes. Ms. Mak said that she alternated with her brother in attending to the business in Hong Kong. When asked, she said that her brother definitely spent more time there than she did. However, when it was brought to her attention that she spent more time in Hong Kong than in Canada, she admitted that she spent more time in Hong Kong than her brother.
She then said that on one occasion, she had to rush back to Hong Kong after a fire took place. The evidence indicated that the loss was only in the range of $10,000. According to her application for citizenship, she did not go back for over one month after the fire. Then she stayed for four months. It is difficult to understand how this return to Hong Kong was occasioned by the fire.
There is another difficulty relating to the fire. Ms. Mak's citizenship application indicates that she was in Canada at the time of the fire. When giving her evidence, she initially could not remember whether she was in Canada or Hong Kong at the time of the fire, but later confirmed that she was in Canada. However, the surveyor's report makes express reference to Ms. Mak being present at the premises in Hong Kong shortly after the fire and being involved in an inspection on the day following the fire. Such inconsistency in Ms. Mak's evidence causes further credibility concerns.
Finally, counsel submitted that the Mak's sole source of income was from the Hong Kong printing business. Yet, there is no disclosure in the income tax returns of either appellant of any income from the Hong Kong business. Income tax liability is generally based on a residency test at the calendar year-end. Counsel submitted that there are tax arrangements, such as off-shore trusts which may be applicable. I accept that this may be the case. Perhaps the appellants are beneficiary of a trust which pays income tax. Nonetheless, if the business is the sole source of income for the family, and the appellants return to Hong Kong to work in the business, then some income in the form of wages or salaries from the Hong Kong business should have been reported on the appellants' Canadian income tax returns. If there was an explanation for not doing so it was not provided. The failure to report salaries or wages from the Hong Kong business in the appellants' income tax returns again raises serious credibility questions.
The credibility problems with the evidence in this case lead me to the conclusion that the appellants' absences from Canada have not been justified and they do not meet the residency requirements of the Citizenship Act. The appeals are therefore dismissed.
"Marshall E. Rothstein"
Judge
Toronto, Ontario
April 9, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-1204-96
T-1205-96
STYLE OF CAUSE: CITIZENSHIP ACT
- and -
WAI YI PAULINE MAK and
YIU YAN MAK
DATE OF HEARING: APRIL 7, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: ROTHSTEIN, J.
DATED: APRIL 9, 1997
APPEARANCES:
Mr. Sheldon M. Robins
For the Appellants
Mr. Peter K. Large
For Amicus Curiae
SOLICITORS OF RECORD:
Sheldon M. Robins
Barrister and Solicitor
2 St. Clair Ave. East
Suite 318
Toronto, Ontario
M4T 2T5
For the Appellants
Peter K. Large
Barrister & Solicitor
Suite 610
372 Bay Street
Toronto, Ontario
M5H 2W9
For Amicus Curiae
FEDERAL COURT OF CANADA
Court No.: IMM-1204-96
IMM-1205-96
Between:
CITIZENSHIP ACT
- and -
WAI YI PAULINE MAK and
YIU YAN MAK
Appellants.
REASONS FOR JUDGMENT