Date: 19990907
Docket: T-264-98
BETWEEN:
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
YUK HING WONG
Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
EVANS J.:
[1] This is an appeal under subsection 14(5) of the Citizenship Act against a decision by the Citizenship Judge not to approve Yuk Hing Wong"s application for Canadian citizenship on the ground that she had not satisfied the residency requirement of paragraph 5(1)(c ) of the Act.
[2] The appeal was under the pre-1998 Federal Court Rules and so took the form of a trial de novo.
[3] The appellant had arrived in Canada in 1993 with permanent residence status. She came from Hong Kong with her husband and children.
[4] A month after their arrival they left for Hong Kong in order to enable her husband, who was feeling unwell, to consult the doctor in Hong Kong whose patient he had been for some years. In November 1993 the husband underwent surgery for the removal of a cyst from his brain. A medical report from the doctor stated that he recovered well from the surgery and reported no symptoms to the doctor during his regular visits over the next three years.
[5] The family returned to Canada for a month in the summer of 1995, when they bought and furnished a house in Toronto. However, they left again after a month because, Ms. Wong testified, her husband was still not feeling well. They returned a third time to Canada in July 1996, a few weeks prior to the appellant"s application for Canadian citizenship.
[6] Since then they spent a few months in Canada in the fall of 1996, and the children attended school here. However, the husband"s medical condition required him to return to Hong Kong where he had a brain tumour removed in January 1997. The appellant and the children went to Hong Kong to be with the husband during and after this operation.
[7] Of the 1,095 days prior to the appellant"s application for citizenship, she has been in Canada for 83 days, or less than 8% of the statutorily prescribed residence period, and in Hong Kong for 92% of the time. Despite the difficulties that have faced Ms. Wong and her family in the last few years and frustrated her expressed intention to make Canada her home, I have concluded that she has not satisfied paragraph 5(1)(c ).
[8] The case law establishes that, while a person need not be physically present in Canada for the entire period, applicants for citizenship must prove that they have established a residence in Canada by "centralizing their mode of living" here, and that during subsequent temporary absences they nonetheless succeeded in maintaining that residence.
[9] While there may be no minimum time required to establish a residence in Canada for citizenship purposes, a month is a very short time indeed within which to do so. A short period of presence will tend to require a connection that is more substantial in quality.
[10] While in Canada in August 1993 Ms. Wong acquired a health card and some other "passive indicia" of residence; the family moved some assets to Canada; and Ms. Wong and her family visited Ottawa, Montreal and Niagara Falls to start to acquaint themselves with the country. In addition, the family started to enquire about schools for their children.
[11] On the other hand, the husband owned an apartment in Hong Kong where their furniture remained, and which they still have not sold. It continues to be their home when they are in Hong Kong. They did not rent or buy a home for the family when they were in Toronto in August 1993. Instead, they stayed with relatives.
[12] Ms. Wong testified that when they returned to Hong Kong in September 1993 to enable her husband to consult his doctor they intended to liquidate assets in order to move them to Canada. When they came back to Canada for a month in 1995 they purchased a house and engaged in various community activities, such as attendance at church, membership of a photographic club, and charitable fund-raising. In October 1993 the husband commenced employment with a company with offices in Toronto, Vancouver and Hong Kong to act for them in Hong Kong.
[13] However, if the appellant did not succeed in centralizing her mode of living in Canada in 1993, and thus in acquiring a residence for citizenship purposes, her subsequent activities are only of marginal relevance. A person cannot maintain a residence during her absence which she has not established. However, I am prepared to accept that the two other months that the Wong family spent in Canada in the summers of 1995 and 1996, as well as events after the appellant"s application for citizenship, are some evidence of an intention to make Canada home.
[14] Nonetheless, intentions are not enough and I shall decide whether the appellant has proved that she established a residence in Canada in August 1993 by answering the questions formulated by Reed J. in Re: Koo, [1993] 1 F.C. 286, 293-4 (F.C.T.D.).
[15] Was the appellant in Canada for a long period prior to the absence? No: she was here for only a month prior to her prolonged absences in Hong Kong.
[16] Where are the applicant"s family members resident? Her husband and children are with her, and her mother and siblings are in Canada. Most of her husband"s extended family is in Hong Kong. These facts lend some support to the appellant"s claim.
[17] Does the pattern of physical presence in Canada indicate a returning home or visiting? In my opinion Ms. Wong"s patterns of presence in Canada resemble visits: one month at a time in each of the summers of the years 1993, 1995 and 1996.
[18] The absences of 1,012 days are so extensive that it will be difficult for her to establish a "deemed residence".
[19] The reason for her absence was to be with her husband who had returned to Hong Kong for medical reasons. To this extent, her absences were not altogether voluntary. However, I was not satisfied on the evidence that the husband"s health problems satisfactorily explain all his absences, nor why he insisted on returning to Hong Kong in 1993 and 1995 for medical treatment. Even people who have substantial medical histories, as the husband appears to have had, do not typically decide to fly half way around the world to consult their doctor rather than finding a doctor who is closer to their home. Further, the doctor who operated on the appellant"s husband in 1993 stated that the appellant had made a good recovery from surgery and reported no adverse symptoms in the following three years.
[20] As for the quality of Ms. Wong"s connection with Canada, in 1993 it cannot be said to have been particularly strong, especially bearing in mind its short duration. Her connections with Hong Kong were still substantial (a furnished apartment owned by her husband, the family"s car, and the husband"s employment and business). However, members of her extended family were here and provided some kind of connection with Canada.
[21] In my opinion, on the basis of the answers to these questions I am not satisfied that Ms. Wong established a residence in Canada in 1993 and therefore could not subsequently satisfy the residency requirement of paragraph 5(1)(c).
[22] For these reasons the appeal is dismissed.
OTTAWA, ONTARIO "John M. Evans"
September 7, 1999. J.F.C.C.