Lee (Re), docket T-2688-96

     T-2688-95

B E T W E E N:

     IN THE MATTER OF THE CITIZENSHIP ACT,

     R.S.P., 1985, c. C-29

     AND IN THE MATTER OF an appeal from the

     decision of a Citizenship Judge

     AND IN THE MATTER OF

     Yip Tin Lee,

     Appellant

     REASONS FOR JUDGMENT

ROTHSTEIN, J.:

     The issue in this appeal of a decision of Citizenship Judge, Gina Godfrey denying citizenship to the appellant, is whether the appellant established a residence in Canada as required by paragraph 5.(1)(c) of the Citizenship Act¹ by maintaining or centralizing his ordinary mode of living with its accessories in social relations, interests and conveniences in this country. (See Re Papadogiorgakis, [1978] 2 F.C. 208 at 214.

     The appellant is a citizen of Hong Kong.. He, his wife and child obtained permanent resident status in Canada in 1989. They acquired a home in Richmond, British Columbia and his son attends school there. The appellant's son is in school in Richmond. The appellant invested $250,000 in a Canadian investment fund as a condition of his immigration to Canada. He belongs to a community society and to the local Roman Catholic Church in Richmond. The appellant has a Canadian accountant, doctor and dentist. Recently the appellant developed some properties in Richmond and is in the process of selling townhouses. The appellant has a Canadian social insurance number and a British Columbia driver's licence. He has Canadian banks accounts and files Canadian income tax returns. He has also purchased two condominiums as investments in Canada. Generally these would be indications that an appellant has centralized his ordinary mode of living in Canada.

     However, within three weeks of arriving in Canada in July 1989, the appellant returned to Hong Kong. In the four year period prior to the appellant's citizenship application, he was in Canada 166 days and in Hong Kong 1281 days - 11% of the time in Canada and 89% of the time in Hong Kong. The appellant has had a pattern of spending three to five months in Hong Kong interspersed with stays in Canada ranging from 7 to 27 days, or an average 15 days. In the period immediately before the appellant's citizenship application, he had remained in Hong Kong for some 262 days or almost 9 months without returning to Canada.

     In considering whether the appellant centralized his ordinary mode of living in Canada, two facts are significant. First, even though the appellant is a member of the Roman Catholic Church and therefore, presumably, celebrate Christmas, he was never in Canada at Christmas time in any of the 4 years prior to his application. Second, the appellant's wife stated that the appellant's son felt that he could not ask his father to stay in Canada one extra day to attend a school family picnic because he did not know him well enough.

     The appellant has attempted to bring himself within the line of cases which establish that leaving Canada to care for a sick or elderly relative can be an acceptable explanation for lengthy absences from Canada not disqualifying an applicant from citizenship. The appellant attributed his return to Hong Kong as being necessary to look after his parents and two brothers, whose ages were approximately 30 to 32 years, who he said were unwell. However, the medical reports relating to the appellant's two brothers do not substantiate the claim that they required his presence in Hong Kong. In the case of one brother, the medical report dated March 14, 1995 covers the period February 25 to September 30, 1989. It states that the brother complained of palpitation on and off. Symptoms were essentially normal and the brother apparently showed some improvement while under treatment. There is nothing more recent as to this brother's medical condition. The medial report in respect of the other brother indicates that the brother was treated for anxiety depressive illness, that he is receiving medication and counselling and that his mental state has improved over the years. The appellant's wife stated that the appellant's mother insisted that the appellant return to Hong Kong to look after her. There was no evidence as to the mother's medical condition or why the appellant was required to be in Hong Kong four to five months for every two weeks in Canada for this purpose.

     I agree with the observation of Noël J. in Re Chung (1996), 33 Imm. L.R. (2d) 288 that residence and not physical presence is the governing criteria for a grant of citizenship. However, I do not interpret him to be saying that physical presence is not an important factor to be considered in determining residence. The length and pattern of an individual's presence and absence in and from Canada can be instructive in assessing whether the person maintains or centralizes his ordinary mode of living in Canada.

     In this case, the appellant was in Canada 11% of the time and out of Canada 89% of the time during the relevant period. There is no trend indicating a growing proportion of time in Canada. Indeed, if anything the opposite is true, with longer periods in Hong Kong and shorter stays in Canada towards the end of the four-year period prior to the citizenship application.

     I do not accept the submissions of the appellant that he had to stay in Hong Kong to look after his brothers. The medical reports do not indicate they required care. While the appellant may well have an obligation to his parents, there are brothers present in Hong Kong. Nothing in the evidence indicates a stronger relationship between the appellant and his parents than the brothers and parents. In fact, the parents have not once visited the appellant in Canada.

     The appellant owns and operates an electronics business in Hong Kong. There is no indication that he is selling the business, winding it down, having others operate it, moving it to Canada or making any other arrangements to permit him to spend more time in Canada with his wife and son. The location where a married couple reside will usually be the place where the couple maintain their ordinary mode of living (see Canada v. Shanshal (1993), 19 Imm. L.R. (2d) 203 at 210). There may, however, be exceptions, such as in this case, where one spouse's absence for lengthy periods and presence for brief periods rebuts such a presumption in respect of that spouse. Here, the evidence is that the one child of the marriage indicates that he does not know his father well enough to ask him to stay one extra day to attend a school family picnic, and when the father has never spent Christmas with his wife and child in Canada. In my view, this evidence clearly rebuts any such presumption.

     I think it is also pertinent that the appellant does not report his worldwide income in Canada for income tax purposes. It appears he has significant obligations in respect of looking after his parents and perhaps his brothers. In addition, he maintains a relatively expensive home in Richmond. Yet, the income reported on his Canadian income tax return only ranges from $27,605 to $35,783 for the years 1990 to 1994. Out of this relatively modest income he managed to make charitable donations of $2,045, $3,203 and $4,145 dollars in 1991, 1992 and 1993 respectively. Further, he is involved in real estate development and has purchased two condominiums as investments. I am satisfied that he has substantial income other than that reported on his Canadian income tax return, presumably from his electronics business in Hong Kong.

     Very often a social insurance number, driver's licence and other indications of being a Canadian resident would lead to the conclusion that an applicant has centralized his mode of living in Canada. In other circumstances, however, these indications are just props that are acquired to make it appear that an applicant qualifies for citizenship when in fact he does not. For example, in this case the applicant indicated that he had a Canadian doctor and dentist. It is hard to believe this has much meaning when the appellant is only in Canada for two weeks every four or five months. Indeed, the evidence is that the appellant has spent time in a hospital in Hong Kong, but not in Canada.

     I have had regard to the criteria outlined by Reed J. in Re Koo, [1993] 1 F.C. 286 (T.D.) at 293 in reaching a conclusion in this case. I am satisfied that the appellant visits his wife and child in Canada for short periods a few times each year, and that he has investments in Canada. As well I am satisfied that he has some of the indications of residence, such as a driver's license and that he pays Canadian income tax, but only on his Canadian income. However, in the circumstances of this case, I place little weight on these factors. The applicant's connection with Hong Kong is clearly more substantial than his connection with Canada. His returning to Honk Kong within 3 weeks of being granted permanent resident status in Canada, his absence from Canada 89% of the relevant time with no pattern of change and with no legally acceptable explanation lead me to conclude that the appellant does not satisfy the residence requirement of the Citizenship Act. The learned Citizenship Judge did not err in her decision.

     The appeal is dismissed.

     Marshall Rothstein

     J u d g e

OTTAWA, ONTARIO

DECEMBER 4, 1996

     ¹      5.(1) The Minister shall grant citizenship to any person who:      (c)      has been lawfully admitted to Canada for permanent residence, has not ceased since such admission to be a permanent resident person under section 24 of the Immigration Ac,t and has, within the four years immediately preceding the date of his application, accumulated at least three years of residence in Canada...