Date: 19990409
Docket: T-1525-98
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
WOON MING CHAN
Respondent
REASONS FOR ORDER
EVANS J.:
[1] This is an appeal by the Minister of Citizenship and Immigration from a decision of Citizenship Judge R. Meagher approving the respondent"s application for Canadian citizenship. The appeal under subsection 14(5) of the Citizenship Act R.S.C. 1985, c. C-29 [as amended] was brought as an application for judicial review pursuant to Rule 300 paragraph (c) of the Federal Court Rules, 1998 SOR/98-106.
[2] The respondent was not represented at the hearing and did not appear. Counsel for the appellant advised the Court that she had received no communication from either the respondent or his counsel.
[3] On the basis of the affidavits filed on behalf of the Minister, I am satisfied that the respondent was duly served with notice of the application: service was admitted by Mr. Raymond Chow, the respondent"s solicitor, on August 5, 1998, and a copy was sent by fax on August 13, 1998 to the respondent"s office in Hong Kong. In addition, notice of the requisition for the hearing was left at the respondent"s address in Thornhill, Ontario on November 16, 1998, and a copy of the appellant"s application record was served at the same address where it was received by a woman whom the process server believed identified herself as Woon Ming Chan, presumably the wife of the applicant.
[4] In all the circumstances, I have decided that it would be inappropriate to adjourn the hearing of this appeal.
[5] The only contentious issue in the respondent"s application for citizenship has been whether he has satisfied the residence requirements prescribed by paragraph 5(1)(c ) of the Citizenship Act.
[6] He applied for citizenship just three years after he became a permanent resident. During those three years he was absent from Canada for a total of approximately 453 days. Most of his trips were to Hong Kong, and were for business purposes. In other words, he was present in Canada less than 60% of the required three years of residence.
[7] This appeal is allowed on two grounds. First, it is clear from the decision that the Citizenship Judge fundamentally misapprehended the evidence germane to this case. Contrary to the statements by the Judge, the respondent had not established a Canadian-registered corporation in the time between his landing and his first absence from Canada two months later. Nor was there any evidence in the record that the respondent"s current business, a sole proprietorship, employs 18 Canadian citizens, or that his absences have been for family reasons or to promote Canadian-made products and services.
[8] Second, on the facts in the record the respondent neither established nor maintained a residence in Canada, even though he purchased property here, where his wife and children have resided for most of the time.
[9] Not only has the respondent been absent from Canada for a very large proportion of the three years prior to his application for citizenship, but the pattern of his absences has not changed over that time. For the most part, his pattern of travel has been to spend approximately two months in Canada and then to be away for two months.
[10] The record contains no explanation of the nature of his overseas business activities, and nothing to indicate that they are of a temporary nature. It can be inferred from the expenditures that he has made in Canada and the relatively small income that he has reported to Revenue Canada on his income tax returns that he has not centralized his business activities in Canada.
[11] In my opinion, on neither the stricter nor the more liberal interpretation of paragraph 5(1)(c) was it reasonably open to the Citizenship Judge to conclude on the facts before him that the respondent had satisfied the statutory residency requirement.
[12] For these reasons the appeal is allowed.
OTTAWA, ONTARIO John M. Evans
April 9, 1999. J.F.C.C.