Date: 19990625
Docket: T-911-98
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:
WAI YUEN AU
Applicant/Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY J.
[1] In his decision of March 24, 1998, the Citizenship Judge concluded that the applicant did not meet the residency requirement in paragraph 5(1)(c) of the Citizenship Act. The applicant was physically present in Canada for 528 of the required 1,095 days, during the four-year period immediately prior to the filing of his application for citizenship. The applicant appeals this decision, pursuant to subsection 14(5) of the Act. The appeal proceeded as a trial de novo pursuant to Rule 902 of the former Federal Court Rules.
[2] The applicant, a citizen of Hong Kong, became a permanent resident of Canada in January 1992. He was landed here with his wife and their two children, then aged seven and three respectively. The couple"s third child was born in Canada. The applicant"s spouse and their children are now Canadian citizens. His mother, his brother and the latter"s spouse and children are also in Canada.
[3] The applicant acknowledges that his first significant presence in Canada was in July 1992, when he moved his family to a residence in Scarborough, Ontario.
[4] The applicant was landed in the entrepreneurial category. He is a 50% partner, with his brother, in a dry-cleaning business in Toronto.
[5] Between 1992 and early 1997, the applicant had substantial absences from Canada as a result of his ongoing partnership, with another brother, in a family jewellery business in Hong Kong. The applicant"s involvement in this business entailed approximately five trips annually to Hong Kong and Thailand. The average trip was for a period in excess of forty days.
[6] In late February 1997, the applicant applied for citizenship. It was at that time, as the result of economic difficulties in Asia which detrimentally affected the jewellery business, that the applicant began spending more time in Canada. However, for the purposes of the residency requirement, the material period is the four years preceding February 1997.
[7] The applicant"s counsel argued, with some merit, that the evidence indicated that the family unit had centralized its lifestyle in Canada. However, the applicant"s testimony also indicated that his substantial absences from Canada during the relevant period significantly compromised the quality of his attachment to Canada. He could not recollect the names of the charitable organizations to whom he had made certain donations. A translator was required to facilitate his responses because of his halting English. He candidly acknowledged that he chose not to disclose his Hong Kong income from the jewellery operation in his Canadian income tax returns. His annual disclosed Canadian income of approximately $30,000 was, by his own acknowledgment, substantially investment income.
[8] I accept the applicant"s testimony that he owns no residence outside Canada. While in Hong Kong, he resided with his brother in a residence owned by their mother. However, his absences from Canada were totally unrelated to any Canadian business initiative. His trips abroad were dedicated completely to his involvement in the family business in Hong Kong. His voluntary decision to pursue his interests in that business necessarily limited the days he was present in Canada and prejudiced his ability to establish roots in this country.
[9] In Kerho, Re,1 another citizenship appeal which was heard by way of trial de novo, Justice Teitlebaum tempered his right to substitute his new decision for that of the Citizenship Judge in these terms:
| ... although the appeal is effectively a trial de novo, it is incumbent upon the appellant to show that the Citizenship Judge exercised her discretion on a wrong principle, or on a complete misapprehension of the facts or for some other compelling reason requiring my interference in her decision. |
[10] Justice Teitlebaum"s statement is particularly applicable in this case where the decision of the Citizenship Judge is clearly drafted. He referred to the case law of this Court which requires the establishment and the maintenance of a centralized mode of living in Canada. After reviewing the material facts, the Citizenship Judge also referred to the statement relied upon by Thurlow A.C.J. in Papadogiorgakis2 which put the applicant"s residency in context: "... so long as it is shown in mind and in fact that the applicant settles into or maintains or centralizes his ordinary mode of living, with his accessories in social relations, interests and conveniences in Canada" [emphasis added by the Citizenship Judge]. The Citizenship Judge then concluded as follows:
| Despite the obvious Canadian centrality of living of the other members of your family, I find no evidence that you personally, either qualitatively or quantitatively satisfied the requirements for having Canada as the focal point of your commercial and social interests during the period under scrutiny. |
[11] In Ho, Re,3 Justice Dubé stated that "[t]he most eloquent indicia of residency is the permanent establishment of a person and his family in the country". I subscribe to this view. However, in this case, there is little, if any, evidence with respect to the applicant"s business activities in Canada before 1997. Similarly, there is no evidence of any compelling reason which required his ongoing involvement in the jewellery business. His absences would not have allowed any significant participation in the dry cleaning business before 1997.
[12] For these reasons, I conclude that the applicant"s application for citizenship is premature. His family has lived in Canada in a real sense since July 1992. However, because of his Hong Kong business interests unrelated to any entrepreneurial endeavour in Canada, it is only since early 1997 that the applicant himself appears to have spent sustained periods of time in this country. If that pattern of lifestyle continues, he may well succeed upon his re-application for citizenship at the appropriate time. In the present circumstances, however, this appeal must be dismissed.
"Allan Lutfy"
J.F.C.C.
Ottawa, Ontario
June 25, 1999
__________________1 (1998), 21 F.T.R. 180 at 184. See also Agha (Re) , [1999] F.C.J. No. 577, per Lemieux J. at paragraphs 33-34, concerning the standard of review in a de novo trial.