Date: 19990401
Docket: T-1700-98
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:
CHONG MENG SIO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY J.:
[1] In her decision of June 23, 1998, the Citizenship Judge concluded that the applicant had not met the residency requirements in paragraph 5(1)(c) of the Citizenship Act. The applicant was physically within Canada for 530 of the 1095 days required in the four years preceding his application for citizenship. The applicant appeals this decision, pursuant to subsection 14(5) of the Act and Rule 300(c) of the Federal Court Rules, 1998.
[2] The applicant, 40, first visited Canada with his wife to attend Expo '86. Their stay was extended and their first child was born in Canada in November 1986. The family returned for a second visit in the summer of 1991. The applicant then entered Canada on July 2, 1994 as an entrepreneur immigrant. He was accompanied by his spouse and their second son. When he was advised that his application for permanent residence was approved, the applicant sold his business in Macau, his place of birth and previous residence, to family members. Some two months after landing in Canada and establishing his family here, the applicant returned to Macau to train and adapt the new owners of the business he had sold. He also attended to the disposition of other assets.
[3] The family first lived with relations in Coquitlam, B.C. In August 1994, the couple purchased their own home in Coquitlam where they continue to reside and where their children are being educated.
[4] The applicant has made three significant investments in Canada since acquiring the status of permanent resident. In January 1996, he acquired a twenty percent interest in a seafood exporting enterprise for $90,000. He assisted this company in marketing its seafood products in Hong Kong and China. In June 1996, he purchased a twenty-five percent interest in two associated companies, one involved in autobus tour services and the other, a travel agency. He has invested $220,000 in these two companies and is on their boards of directors. According to the applicant, these two businesses rely on his marketing skills to develop markets in Asia. In October 1996, he sold his interests in the seafood business to focus his energies in the newer investments. His employment income in 1996 was subject to Canadian taxation.
[5] The reasons of the Citizenship Judge make only a cursory reference to the applicant's business investments in Canada:
| The applicant is a 39-year old operator of a tour bus company, who arrived in Canada in 1994. He attended school in Macau for 12 years and in Canada for 3 months. According to the calculations of the Court, the applicant is 495 days short of the required residence. I have interviewed the applicant and reviewed the file. As the applicant does not comply with paragraph 5(1)(c) residence, I am unable to recommend approval. (see letter attached) |
The Citizenship Judge made no finding concerning the applicant's trips to Asia in the context of these investments. Her letter of decision has no further analysis of the facts. In my view, it includes statements which reflect the conflicting decisions of this Court concerning the interpretation of paragraph 5(1)(c), without stating which of these she has chosen to follow.
[6] 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."
[7] In Koo, Re, [1993] 1 F.C. 286 (T.D.) at 293-4, Reed J. reviewed the case law that had developed in this Court since the leading decision in Papadogiorgakis, some fifteen years earlier. Justice Reed concluded that the appropriate test is whether Canada is the place that the person "regularly, normally or customarily lives" or has centralized their mode of existence. In making this determination, she suggested that the relevant criteria should include the length of the person's stays in Canada, the residence of the person's immediate and extended family, the extent and the reason for the physical absences, the quality of the connection with Canada in comparison with any other country and whether the time spent in Canada indicates a returning home as opposed to a mere visit.
[8] In Lam, Re (25 March 1999), T-1310-98 (F.C.T.D.), I considered the appropriate standard of review in citizenship appeals, in the context of two recent developments. First, with the introduction of the Federal Court Rules, 1998, citizenship appeals no longer proceed by way of trial de novo. A citizenship appeal is now dealt with as an application, pursuant to Rule 300(c). Second, Parliament is currently considering new citizenship legislation which would bring significant changes to the examination and determination of citizenship applications and this Court"s review of the resulting decisions. After noting certain objective factors that might dictate greater curial deference, I concluded that, in view of this transitional period, it would not be appropriate to depart radically from the current standard of review (at paragraph 33):
| 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 the 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. |
[9] In her letter of decision1, the Citizenship Judge first states:
| Federal Court precedents require that, to establish residence, an individual must show, in mind and in fact, a centralization of his or her mode of living in Canada. If such residence is established, absences from Canada do not affect this residence, as long as it is demonstrated that the individual left for a temporary purpose only and always maintained in Canada some real and tangible form of residence. I have, therefore, carefully examined your case to determine whether you had established residence in Canada prior to your absences such that those absences could nevertheless be counted as periods of residence. |
[10] This statement reflects those decisions of this Court which follow Papadogiorgakis and allow for temporary absences where the applicant has otherwise centralized a mode of living in Canada. However, the Citizenship Judge also refers extensively to Pourghasemi, Re (1993), 19 Imm. L.R. (2d) 259 (F.C.T.D.), a decision which applies the stricter interpretation of paragraph 5(1)(c) where the prescribed three years is "little enough time in which to become Canadianized". The simultaneous reference to the conflicting case law in the letter of decision, without further explanation, may reflect a misunderstanding of the legal issues against which she could apply this applicant's fact circumstances. In my opinion, this constitutes a valid ground of appeal.
[11] In my view, the record discloses that the applicant and his family have centralized their mode of living in Canada. There is no evidence that the family is substantially connected to any other country. The applicant's business investments in Canada have been in the seafood export and travel industries. These explain his trips abroad. When he returns to Canada, he is returning home. On the basis of the principles set out in Papadogiorgakis and Koo, Re, the material before the Citizenship Judge could only lead to the approval of the applicant's application, regardless of the 565 days he had been physically absent from Canada.
[12] Accordingly, this appeal will be maintained.
J.F.C.C.
Ottawa, Ontario
April 1, 1999
__________________1 The original letter of decision was issued on June 23, 1998. At the request of the applicant, the Citizenship Judge signed a second decision, substantially similar to the first one, on August 26, 1998 which permitted the filing of this notice of application within the sixty-day period provided for in subsection 14(5). I attach no significance to the omission, apparently inadvertent, of one short paragraph in the transcription of the second letter.