Date: 20000301
Docket: T-75-99
BETWEEN:
SAI HUNG PAU,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR JUDGMENT
(delivered orally from the bench on February 22, 2000 in Toronto)
DAWSON J.
[1] This is an appeal pursuant to subsection 14(5) of the Citizenship Act brought on behalf of the applicant from the decision of a citizenship judge dated December 14, 1998 whereby the judge did not approve the application for a grant of citizenship.
[2] By his decision of December 14, 1998 the citizenship judge determined that the applicant had not met the residence requirement of paragraph 5(1)(c) of the Citizenship Act.
[3] The applicant landed in Canada on May 17, 1994 and applied for citizenship on November 10, 1997. The record establishes that during that period the applicant was physically present in Canada for a total 430 days. The applicant was therefore short 665 days from the statutory minimum requirement of 1095 days.
[4] In support of his appeal the applicant argued that the citizenship judge misdirected himself by imparting incorrect weight to the only authority cited by the citizenship judge and that the citizenship judge erred in finding that the applicant did not meet the requirement of residence.
[5] In Lam v. The Minister of Citizenship and Immigration, [1999] F.C.J. No. 410, T-1310-98 (March 26, 1999) (F.T.D.), Justice Lutfy (as he then was) reviewed the three lines of jurisprudence of this Court regarding the interpretation of the residence requirement of paragraph 5(1)(c) of the Citizenship Act. In consequence of that jurisprudence he stated, at paragraph 14:
| In my opinion, it is open to the citizenship judge to adopt either one of the conflicting schools in this Court and, if the facts of the case were properly applied to the principles of the chosen approach, the decision of the citizenship judge would not be wrong. |
[6] With respect to the standard of review on an appeal from a citizenship judge to this Court he concluded, at paragraph 33:
| 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. |
[7] The reasons of the citizenship judge provide, in part, as follows:
| According to the evidence on file and presented to me at the hearing, your absences from Canada total 843.0 days in the four years preceding your application for Citizenship (November 10, 1997). During this period you were physically present in Canada for 430.0 days. Therefore you were short 665.0 days. In these circumstances, you had to satisfy me, in order to meet the residence requirements, that your absences from Canada (or at least a part of these) could be counted as a period of residence in Canada. |
| 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 evidence 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 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. |
| After having considered the evidence that I received both by way of testimony and documentation, I could not find that you have established a residence in Canada by virtue of a centralized mode of living in Canada in the four years preceding your application for Canadian Citizenship. |
| I am supported in my decision by the following Federal Court of Appeals [sic] decision: |
| In Re: John Ting Min Hui (T-1843-92), Justice Muldoon explained that: |
| "Parliament intends to confer citizenship not on de facto foreigners, but on persons who have been "in residence" in Canada, not absent, for three years during the previous four. It intends to confer citizenship on applicants who have "Canadianized" themselves by residing among Canadians in Canada. This cannot be accomplished abroad. Nor can it be accomplished by depositing bank accounts, rental payment, furniture, clothing goods, and more importantly, spouses and children - in a word, all except oneself - in Canada, while remaining personally outside Canada. Parliament prescribes three out of the preceding four years for qualifying for citizenship. Parliament does not speak of depositing anything, nor of a pied-à-terre where one's furniture can become "Canadianized", nor yet of intentions, some day, to become a Canadian, nor of the acquisition of provincial driver's licenses." |
[8] In stating that 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", the citizenship judge adopted one of the schools jurisprudence in this Court. I am accordingly not satisfied that he misapplied or misunderstood the legal principles of his chosen approach.
[9] With respect to the citizenship judge's reference to the decision of Justice Muldoon in John Ting Min Hui, (1994) 24 Imm.L.R. (2d) 8, I do not accept the applicant's submission that the citizenship judge misdirected himself. Rather, I find that having set out the legal principles he chose to apply and reaching his conclusion he in effect buttressed, or in his words "supported", his decision by reference to less liberal case law with respect to the construction of the residence requirement found in paragraph 5(1)(c) of the Citizenship Act.
[10] I am not prepared to find that he gave undue weight to this authority on the basis of the citizenship judge's reference to being a decision of "Federal Court of Appeals" [sic]. A decision rendered by this Court under subsection 14(5) of the Citizenship Act is a decision on an appeal of a citizenship judge's decision and no appeal lies therefrom. This may well account for the judge's incorrect description of this Court.
[11] In view of the fact that the reasons of the citizenship judge did not point to specific evidence to support his conclusion, I did review carefully the evidence before the Court on this appeal. The test as to whether an applicant has centralized his or her mode of living in Canada requires a citizenship judge to examine carefully all of the circumstances surrounding physical absences from Canada in order to determine the true nature of the applicant's connection, commitment and ties with Canada.
[12] In the present case the applicant was clearly and significantly short of the 1095-day requirement. His trips abroad were not wholly business related, the first three having been for personal reasons as well. Although the applicant's children appeared to have remained in Canada during his trips abroad, the applicant's wife was also absent a total of 383 days during the relevant period. Generally the applicant's absences were followed by short periods of attendance in Canada. There is no indication that the applicant anticipated any reduction in his travels from Canada.
[13] The evidence does not establish a primacy or priority of residence in Canada.
[14] In the result, notwithstanding the very forceful submissions of counsel for the applicant, I am not persuaded that the citizenship judge erred by failing to apply proper principles of residency to the facts before him or that he reached the wrong result.
[15] Accordingly the appeal is dismissed.
_________________________
Judge
Ottawa, Ontario
March 1, 2000
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