Date: 19980421
Docket: T-1811-97
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
AND IN THE MATTER OF
YUKO TAKAHASHI,
Appellant
REASONS FOR ORDER
ROULEAU, J.
[1] This is an appeal from the decision of the Citizenship judge dated June 23, 1997 denying the appellant Canadian citizenship. It was determined that Ms. Takahashi did not meet the residency requirement under paragraph 5(1)(c) of the Act which requires that an applicant for Canadian citizenship must have accumulated at least three years of residency in Canada within the four years immediately proceeding his or her application. The Citizenship judge found that the appellant had only been physically present in Canada 578 days leaving her 635 days short of the required 1,095 days to meet the residency requirement.
[2] The Citizenship judge determined that the appellant did not meet the requirements of section 5(1)(c) of the Act. In particular, the Citizenship judge determined that the appellant did not maintain sufficient ties with Canada during her absences to have these absences count as periods of residence under the Act. Finally, pursuant to section 15(1) of the Act, the judge did not consider any grounds under sections 5(3) and 5(4) of the Act to recommend an exercise of Ministerial discretion.
[3] Since appeals to the Federal Court under subsection 14(5) of the Citizenship Act are trial de novo, all of the evidence including the appellant's testimony and that of any other witness can be considered.
[4] In her Notice of Appeal the appellant submits that the Citizenship judge erred in applying strictly the residency requirement set out in the Act and in not taking into account other factors relevant to an application for citizenship.
[5] The appellant was born in Tokyo, Japan, on June 29, 1951. She applied to immigrate to Canada under the Business category of the Business Immigrant Program and, on July 17, 1991, was granted landed immigrant status. By November 30, 1994, the conditions imposed upon her admission in Canada had been fulfilled and therefore cancelled. The appellant is single and is the owner/operator of a fish exporting company, Pegasus Foods (Canada) Inc., incorporated pursuant to the Company Act of British Columbia on March 6, 1990.
[6] The appellant claims that her business generates sales of between 7 to 10 million U.S. dollars over the years. It started with one permanent employee including herself and presently has expanded to three and a half employees. The company exports primarily to Japan and Korea.
[7] The appellant claims that her absences from Canada can be attributed primarily to developing and keeping up sales outside of Canada which requires her to maintain personal markets in Japan and Korea. Recently, her American market sales have increased and presently her main thrust has been to developing domestic sales. Therefore, the applicant contends that developing her company in Canada will now take more of her time while her Japan outlet will require less supervision since she has now trained an employee to maintain the personal relationship with her Japanese customers.
[8] Before her arrival to Canada, the appellant bought a home in 1989 in Delta, British Columbia, which she still occupies; she has paid both municipal and federal income tax.
[9] The appellant appeared before me at Vancouver on April 14, 1998. Upon her arrival in Canada she proceeded to start up her fish exporting business by securing sources of supply in the United States and Canada and has over the years invested some 1.3 million dollars in her operations. From the day of her arrival, she remained for a period of some seven months before returning to Japan to care for a very ailing grandmother. She explained her family background; when she was age 20 her parents divorced and she was then nurtured by the grandmother who eventually fell ill. She spent most of her adult life caring for this grandmother and it was through a trust fund set up by this relative that she was able to migrate to Canada and set up her business enterprise.
[10] She testified that because of the family breakup and the disagreements between the grandmother and other living relatives in Japan she was the one that had the responsibility of caring for this senior citizen and seeing through her illness, her eventual death and her funeral arrangements. She testified that personal contact in the fish exporting business is vital to its survival in Japan and unless someone is well known in the trade and has experience in the field, importers in Japan are relunctant to deal with North Americans unless they have a very close personal relationship with whom they are doing business.
[11] When this appellant came to Canada she no longer maintained a home in Japan and all of her personal belongings and effects came with her when she landed in 1991.
[12] In Papadogiorgakis, (1978) 2 F.C. 208, Thurlow A.C.J. established the principle that full-time physical presence in Canada is not an essential residential requirement. He also found that a person with an established home in Canada does not cease to be resident when he or she leaves for temporary purposes, whether on business, or vacation, or to pursue a course of study.
[13] In Huang, (1997) F.C.J. No. 112 (F.C.T.D.), Dubé J. wrote:
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Where an applicant for citizenship has clearly and definitely established a home in Canada with the transparent intention of maintaining permanent roots in this country, he ought not to be deprived of citizenship merely because he has to earn his livelihood and that of his family by doing business offshore. Some Canadian residents may work from their own homes, others return home after work every day, others every week, and others after longer periods abroad. |
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[14] In Kit Ping Lui Ng, Imm. L.R. (2d) Vol. 35, 1997, Cullen J. wrote as follows:
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In the case of Re Koo (1992), [1993] 1 F.C. (T.D.) at 293, Madame Justice Reed thoroughly surveyed the jurisprudence concerning residence and summarized the different formulations for determining whether an appellant was resident in Canada, despite a physical absence: |
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The conclusion I draw from the jurisprudence is that the test is whether it can be said that Canada is the place where the applicant "regularly, normally or customarily lives". Another formulation of the same test is whether Canada is the country in which he or she has centralised his or her mode of existence. |
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To ascertain whether an appellant "regularly, normally or customarily lives" in Canada, her ladyship also suggested at 293-294 six questions which could be used by the Court as guidance in reaching a conclusion on residency: |
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1) was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship; |
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2) where are the applicant's immediate family and dependents (and extended family) resident; |
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3) does the pattern of physical presence in Canada indicate a returning home or merely visiting the country; |
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4) what is the extent of the physical absences - if an applicant is only a few days short of the 1095 day total it is easier to find deemed residence than if those absences are extensive; |
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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; |
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6) what is the quality of the connection with Canada: is it more substantial than that which exists with any other country. |
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[15] In the present case, the appellant entered Canada under the Business category and established a successful export business in Canada. She did not leave for at least seven months before the illness of her grandmother who was both a guardian and benefactor. She travels extensively in order to maintain her business contacts in Japan. The appellant has also explained that now she has trained a Japanese Canadian employee to deal with customers in Japan and will now be in a position to concentrate her efforts here and spend more time in Canada.
[16] As I review the evidence, there is no doubt in my mind that because of the family circumstances and the unfortunate divorce of the appellant's parents when she was some 20 years of age, a considerable amount of discontent existed between her and her parents and eventually she ended up residing with her grandmother who proved to be her guardian and benefactor. The appellant has no immediate family dependents in Japan nor does she maintain any residence in that country. I am satisfied that the pattern of work supports her contention that her returns to Canada are not for visits but are returns to her established home and only residence.
[17] I am convinced that the exporting of fish to the Japanese market is a highly specialized field and requires extensive personal contacts in order to satisfy the importers in that foreign land to accept our product. I am also satisfied that the quality of the appellant's connections in Canada are much more substantial than that which exist with her former country of citizenship, Japan, particularly since the death of her grandmother.
[18] As was pointed out by the amicus curiae, the appellant continued to reside without interruption in this country for at least seven months before embarking on her many absences for business purposes or to care for her legal guardian.
[19] I hereby recommend citizenship.
JUDGE
OTTAWA, Ontario
April 21, 1998
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