Date: 19990401
Docket: T-1455-98
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:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
- and -
HING KWOK YU
Respondent
REASONS FOR ORDER
LUTFY J.:
[1] In her decision of May 22, 1998, the Citizenship Judge concluded that the respondent had met the residency requirements in paragraph 5(1)(c) of the Citizenship Act. The respondent had been physically within Canada for 339 of the 1095 days required in the four years preceding his application for citizenship. The Minister of Citizenship and Immigration appeals this decision, pursuant to subsection 14(5) of the Act and Rule 300(c) of the Federal Court Rules, 1998.
[2] The notice of application was served personally on the respondent. However, he has not participated in this proceeding.
[3] The respondent, 48, first arrived in Canada in January 1990. He was born in China and describes himself as stateless. The respondent, his wife and four daughters, now aged 30, 28, 27 and 17 respectively, became permanent residents on August 20, 1991. The respondent and his wife own their residence in Vancouver, B.C. The respondent's wife and their four children are Canadian citizens. The record does not disclose when they were granted citizenship. The respondent was landed as an entrepreneur immigrant.
[4] The reasons of the Citizenship Judge state:
| He has been absent more days than present but all were on business for his Canadian incorporated company. His wife and four daughters are Canadian. He has provided evidence of permanent residence in Canada. |
| ... |
| He is short 755 days, which has been spent on business in Hong Kong, where he stays in a hotel. He is an investor in Canada, and has established a B.C. Incorporated company. He is a consulting Marine Engineer and his absences are in connection with this business. He returns as a Landed Immigrant. His wife and 4 daughters are Canadian citizens. |
| He has provided evidence of permanent residence in Canada: |
| - copy of company incorporation |
| - income tax assessment for 1997. He says he has filed since 1994 |
| - car ownership documents |
| - Property tax bill |
| - B.C. Drivers License |
| - B.C. Carecard - Bank letter re account since 1989 |
| - copies of family's Canadian documents |
[5] In Papadogiorgakis, [1978] 2 F.C. 208 (T.D.), Thurlow A.C.J., as he then was, stated at pp. 213-4:
| It seems to me that the words "residence" and "resident" in paragraph 5(1)(b) of the new Citizenship Act are not as strictly limited to actual presence in Canada throughout the period as they were in the former statute but can include, as well, situations in which the person concerned has a place in Canada which is used by him during the period as a place of abode to a sufficient extent to demonstrate the reality of his residing there during the material period even though he is away from it part of the time. |
This principle was succinctly reiterated by Dubé J. in Banjeree, Re (1994), 25 Imm. L.R. (2d) 235 (F.C.T.D.) at 238: "It is the quality of attachment to Canada that is to be ascertained.".
[6] In Koo, Re, [1993] 1 F.C. 286 (T.D.) at 293-4, Reed J. suggested six questions to determine whether a person's mode of existence has been centralized in Canada:
| (1) was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship? |
| (2) where are the applicant's immediate family and dependants (and extended family) resident? |
| (3) does the pattern of physical presence in Canada indicate a returning home or merely visiting the country? |
| (4) what is the extent of the physical absences"if an applicant is only a few days short of the 1,095-day total it is easier to find deemed residence than if those absences are extensive? |
| (5) is the physical absence caused by a clearly temporary situation such as employment as a missionary abroad, following a course of study abroad as a student, accepting temporary employment abroad, accompanying a spouse who has accepted temporary employment abroad? |
| (6) what is the quality of the connection with Canada: is it more substantial than that which exists with any other country? |
[7] In this case, the record discloses very little, if any, substantive information to establish that the respondent has centralized his mode of living in Canada. There is no information to indicate any substantial presence in Canada between his first arrival in January 1990 and the beginning of the relevant four-year period on November 12, 1992. In his application, the respondent made the bald assertion that: "... since all of six family members arrived and domiciled here in Canada, we have never ceased residency". This is insufficient. One is to assume that his adult children continue to reside in Canada. There is no evidence concerning the family's dependency on the respondent. None of his nine returns to Canada between 1993 and 1996 is explained. Seven were for periods ranging from six to twenty-four days. One was for forty-four days and the last one, immediately prior to the filing of his application, was for 151 days. Nothing indicates that this pattern is temporary. The current status of his initial investment in Canada is not addressed. His Canadian taxable income in 1997 of $5,226 is not identified as being employment, business or interest income. There is no information concerning his taxable income in his other filings since 1994. This leaves open the inference that the respondent has significant other income, not subject to Canadian taxation. Bank accounts, a driver's license, a medicare card, a public library membership and real estate tax bills do not of themselves prove the quality of one's connection with Canada.
[8] On the basis of the record before me, the information available to the Citizenship Judge fell far short of that required for her to determine that the respondent had centralized his mode of life in Canada. In some circumstances, absences of a significant length may be justified if the applicant has meaningfully established a Canadian residence. In this case, however, the Citizenship Judge does not appear to have carried out the kind of analysis suggested in Koo, Re. She could not reasonably have concluded that the residency requirement had been met on the basis of the information disclosed in this record. This paucity of indicia of the respondent's true residence in Canada is only emphasized by his failure to defend the decision under attack in this proceeding.
[9] Accordingly, the appeal is allowed.
J.F.C.C.
Ottawa, Ontario
April 1, 1999