Date: 20031210
Docket: T-351-03
Citation: 2003 FC 1439
Toronto, Ontario, December 10th, 2003
Present: The Honourable Mr. Justice Harrington
BETWEEN:
SAI HUNG PAU
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Sia Hung Pau, a Hong Kong citizen, has had connections with Canada going back to 1984. Prior to obtaining permanent resident status in 1994 he purchased a house here and incorporated a Canadian company specializing in real estate investment and property management. In 2001, he applied for Canadian citizenship. The Citizenship Judge turned him down on the grounds that he had not accumulated at least three years (1095 days) of residence in Canada within the four years immediately preceding his application, as required by section 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29. The Citizenship Judge found, and it is not contested, that Mr. Pau spent only 397 days, or 27% of his time in Canada during the four year period prior to his application.
[2] Mr. Pau has appealed and seeks an Order requiring the Minister to grant him citizenship.
[3] I have decided to dismiss Mr. Pau's appeal for the following reasons.
[4] If one were to read the Citizenship Act unfettered by any jurisprudence, one could tend to the view that all one would have to do is tote up the days in which the applicant was in Canada. Mr. Pau does not even come close to the minimum residency requirement.
[5] Indeed that is one view enunciated by this court, particularly by Muldoon J. in Re Pourghasemi (1993), 62 F.T.R. 122, and Re Harry (1998), 144 F.T.R. 141.
[6] However, it has also been held that a person can be in Canada in mind, if not in body, and that such days count for the residency requirement.
[7] In Re Antonios E. Papadogiorgakis, [1978] 2 F.C. 208, Thurlow A.C.J., as he then was, had occasion to consider the Citizenship Act in its days of infancy. It was his opinion that a person is resident in Canada "only if he is physically present (at least usually) on Canadian territory." Mr. Papadogiorgakis fell short of the required 1,095 days because of university studies in the United States. After referring to the decision of Rand J. in [1946] S.C.R. 209">Thomson v. M.N.R. [1946] S.C.R. 209 Thurlow A.C.J. said at paragraph 16:
A person with an established home of his own in which he lives does not cease to be resident there when he leaves it for a temporary purpose whether on business or vacation or even to pursue a course of study. The fact of his family remaining there while he is away may lend support for the conclusion that he has not ceased to reside there. The conclusion may be reached, as well, even though the absence may be more or less lengthy. It is also enhanced if he returned there frequently when the opportunity to do so arises.
It is, as Rand J. appears to me to be saying in the passage I have read, "chiefly a matter of the degree to which a person in mind and fact settles into or maintains or centralizes his ordinary mode of living with its accessories in social relations, interests and conveniences at or in the place in question".
[8] This case clearly gave Citizenship Judges discretion in their count.
[9] The other case frequently cited is Re Koo, [1993] 1 F.C. 286. The appellant in that case was only present in Canada for a total of 232 days, and the appeal was dismissed. After an extensive review of the jurisprudence, Reed J. gave the following guidelines:
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 centralized his or her mode of existence. Questions that can be asked which assist in such a determination are:
(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 dependents (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 employment abroad?
(6) what is the quality of the connection with Canada: is it more substantial than that which exists with any other country?
[10] This divergence in the case law was commented upon by Lutfy J., as he then was, in Lam v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 177. He held that it was open to a Citizenship Judge to adopt any one of the three conflicting lines of jurisprudence, and if the facts of the case were properly applied to the principles of that approach, the Citizenship Judge's decision would not be wrong.
[11] However, a common thread throughout the jurisprudence is that the Citizenship applicant must first have established a residence in Canada. Only then must one follow one school of thought or another in determining whether or not to justify voluntary physical absences beyond the 365 days allowed by the Act. This point was very aptly summarized by Layden-Stevenson J. in Ahmed v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1067 where she said at paragraph 4:
Because the "issue" regarding the divergence of opinion in Federal Court jurisprudence with respect to the residency requirement of the Act inevitably surfaces during argument on citizenship appeals, I believe that it is beneficial to distinguish between the instances when that issue has relevance and when it does not. In my view, the "issue" regarding the divergence of opinion in Federal Court jurisprudence is not relevant to the issue of whether an appellant has established a residence in Canada. In Goudimenko v. Canada (Minister of Citizenship and Immigration) 2002 FCT 447, [2002] F.C.J. No. 581, the appellant argued that his absences for school ought to have been deemed residence. At paragraph 13, I stated:
The difficulty with the appellant's reasoning is that it fails to address the threshold issue, his establishment of residence in Canada. Unless the threshold test is met, absences from Canada are irrelevant; Canada (Secretary fo State) v. Yu (1995), 31 Imm.L.R. (2d) 248 (F.C.T.D.); Re Papadorgiorgakis, supra; Re Koo, supra; Re Choi, [1997] F.C.J. No. 740 (T.D.). In other words, a two stage inquiry exists with respect to the residence requirements of paragraph 5(1)(c) of the Act. At the first stage, the threshold determination is made as to whether or not, and when, residence in Canada has been established. If residence has not been established, the matter ends there. If the threshold has been met, the second stage of the inquiry requires a determination of whether or not the particular applicant's residency satisfied the required total days of residence. It is with respect to the second stage of the inquiry, and particularly with regard to whether absences can be deemed residence, that the divergence of opinion in the Federal Court exists.
[12] Indeed it appears that Mr. Pau only spent eight days in Canada after being accepted as a permanent resident before he was off on another business trip. Most of his time has been spent in Hong Kong, the place of his birth.
[13] Even if it could be said that Mr. Pau had originally established himself in Canada, I would not overturn the Citizenship Judge's decision. He purported to follow Re Koo, and set out in considerable detail what he considered Mr. Pau's passive connections to Canada in that he had a house here, his wife and children resided here, he had incorporated a Canadian Company and so on. It was submitted on behalf of Mr. Pau that although the Citizenship Judge purported the follow Re Koo in fact he combined elements of the literal interpretation school and the decision of Mr. Justice Thurlow in Papadogiorgakis, particularly because he counted the days and indicated that he might have been persuaded to rule in Mr. Pau's favour had he spent at least 50% of his time in Canada.
[14] However, I think the Citizenship Judge did follow Re Koo and in accordance with the decision in Lam, that decision should not be disturbed. In Re Koo, as in the present case, the appellant's wife had obtained Citizenship, and some of the appellant extended family was in Canada. However, it is not possible to say that Canada is the main focus of the appellant's family life. The pattern of physical presences in Canada is more consistent with visits to this country rather than demonstrating a return to a place where one "regularly, normally, and customarily lives." He falls very short of the 1095 day requirement of actual residence. The absences are not related to an obviously temporary cause.
[15] Mr. Pau's absences are explained by his business in securing funds for his Canadian company's future investments or to enable him to serve as a business consultant for foreign investors who are interested in exploring the Canadian real estate market.
[16] In Alibhal v. Canada (Minister of Citizenship and Immigration), 2003 FCT 169 Snider J. quoted Walsh J. in Re Leung (1991), 42 F.T.R. 149 where he said:
Many Canadian citizens whether Canadian born or naturalised must spend a large part of their time abroad in connection with their business, and this is their choice. An applicant for Citizenship, however, does not have such freedom because of the provisions of Section 5 (1) of the Act.
[17] In conclusion I find that the Citizenship Judge identified and applied the residency test set out in Re Koo, supra, and demonstrated in his reasons an understanding of the test and correctly applied the facts to that test. Accordingly, there is no reviewable error.
ORDER
THIS COURT ORDERS that the appeal is dismissed.
"Sean Harrington"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: T-351-03
STYLE OF CAUSE: SAI HUNG PAU
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: DECEMBER 8, 2003
REASONS FOR ORDER
AND ORDER BY: HARRINGTON, J.
DATED: DECEMBER 10, 2003
APPEARANCES BY:
Mr. Stephen W. Green For the Applicant
Ms. Negar Hashemi For the Respondent
SOLICITORS OF RECORD:
Green and Spiegel
Barristers and Solicitors
Toronto, Ontario For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario For the Respondent
FEDERAL COURT
Date: 20031210
Docket: T-351-03
BETWEEN:
SAI HUNG PAU
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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