Date: 19990909
Docket: T-26-99
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
SUEN KWAN CHEUNG
Respondent
REASONS FOR ORDER AND ORDER
EVANS J.
[1] This is an application by the Minister of Citizenship and Immigration appealing under subsection 14(5) of the Citizenship Act R.S.C. 1985, c. C-29 a decision of a Citizenship Judge approving the application for citizenship of Suen Kwan Cheung.
[2] The Minister submits that the Judge erred in law in finding that Ms. Cheung satisfied the residency requirement prescribed by paragraph 5(1)(c) of the Act, even though she had been present in Canada for a total of 721 days and physically absent for 374 of the 1095 days immediately prior to her application for Canadian citizenship on December 10, 1997. By the standards of many citizenship appeals on the residency requirement, Ms. Cheung was present in Canada for a significant period.
[3] Ms. Cheung, who is now 70 years old, has spent most of her life in Hong Kong. She acquired permanent residence status in Canada in May 1994. She remained in Canada for approximately six months after her arrival and lived in accommodation that she had purchased previously.
[4] From November 1994 until May 1995 she was in Hong Kong to sell her property. She returned to Hong Kong in November 1995 and stayed until the end of April 1996. She stated that the purpose of that visit was to arrange for her ailing mother to go to live with her brother in China. From November 1996 until July 1997 she was again absent from Canada, liquidating her assets in Hong Kong, and visiting friends there and elsewhere.
[5] The Citizenship Judge held that Ms. Cheung had established a residential base in Canada and had centralized her mode of living here, despite her subsequent temporary absences. He concluded that the time spent out of Canada each year during the winter months was because she "has some aversion to cold", and constituted merely temporary visits.
[6] The unusual feature of this case is that, while Ms. Cheung has spent a significant portion of the qualifying residence period in Canada, approximately two-thirds, there was virtually no evidence before the Citizenship Judge of the qualitative nature of her connection with Canada, except her ownership of a residential property here, and the normal "passive indicia" of residence, namely an Ontario health card, a credit card issued by a Canadian bank, bank accounts in Canada, and the like. Ms. Cheung did, however, state in her application form that she was a member of her religious order in Toronto.
[7] Since this appeal is governed by the Federal Court Rules, 1998 it is not a trial de novo. By virtue of Rule 300(c) it takes the form of an application. The standard of review to be applied under the new procedure to determine whether the Judge erred in law was established in Lam v. Canada (Minister of Citizenship and Immigration) (F.C.T.D.; T-1310-98; March 26, 1999), where Lutfy J. said:
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 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.
[8] It is apparent from the printed portion of the Citizenship Judge"s reasons that he was purporting to apply to the facts of Ms. Cheung"s case the "centralized ordinary mode of living" test that was first articulated by Thurlow A.C.J. in Re Papadogiorgakis , [1978] 2 F.C. 208, 214 (F.C.T.D.), and subsequently adopted and elaborated by Reed J. in Re Koo, [1993] 1 F.C 286, especially at 293-295 (F.C.T.D.). However, the Judge"s reasons fail to address one of the most important criteria for determining whether a person has indeed established a residence by "centralizing her ordinary mode of living" in Canada, namely the substantive nature of her connection with Canada. Hence, the applicable standard of review is "near the correctness end of the spectrum".
[9] Consequently, I shall consider the application to Ms. Cheung of the questions formulated by Reed J. to determine whether an applicant for citizenship has satisfied the statutory residency requirement, despite not being physically present in Canada for the minimum period of residence, namely 1095 days.
[10] Ms. Cheung remained in Canada for six months following her arrival with permanent resident status in 1994, and moved immediately into her own home. Although not a lengthy period, it was sufficient to enable her to establish her residence in Canada.
[11] There is no evidence that Ms. Cheung has any relatives or friends in Canada; at the relevant time her mother and brother were in Hong Kong or China.
[12] The pattern of Ms. Cheung"s absences is not unlike that of a number of Canadians: she goes to warmer climes during the winter months, and returns to Canada for the spring, summer and early fall. Since she spends twice as long in Canada as she is absent, this pattern is not in itself inconsistent with returning home to Canada, rather than merely visiting.
[13] Ms. Cheung"s periods of absence are significant: of the minimum three years of residence required by paragraph 5(1)(c ), she has been physically absent for the equivalent of just over a year.
[14] While temporary in nature, her absences have been the result of an entirely free choice, except perhaps when she went to Hong Kong in part to resettle her mother. However, the evidence of her other absences suggests that she would have been absent from Canada at that time, even if her mother had not required attention. There is no reason to think that Ms. Cheung will not continue to spend four or five months of each year in Hong Kong or elsewhere.
[15] As I have indicated, there is virtually no evidence at all about the quality of Ms. Cheung"s connection with Canada, with the exception of property ownership, the "passive indicia" of residence and an unelaborated statement that she belongs to her religious order in Toronto. Since she had the burden of proving that she satisfied the statutory criteria, I shall infer from this evidential void that her active connection is indeed tenuous, and that she lacks the kind of stake in, understanding of or commitment to Canada that it is reasonable to expect from a person seeking to assume the rights and obligations of citizenship.
[16] On the other hand, she has continued to return regularly to Hong Kong, which has been home for most of her life, and where she still owns an apartment. Her immediate family members are in Hong Kong or China, where her connections continue to be substantial.
[17] Given the very significant periods of her absences, their regular and recurring nature, her continuing connections with Hong Kong and the virtual absence of any evidence about the substantive quality of her connections with Canada, it is my view that the Citizenship Judge erred in law when he concluded that Ms. Cheung had satisfied the residency requirement of paragraph 5(1)(c) of the Citizenship Act.
[18] For these reasons the application is allowed.
OTTAWA, ONTARIO "John M. Evans"
September 9, 1999. J.F.C.C.