Date: 20001109
Docket: T-1679-98
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
KA WAH HUI
Respondent
Docket: T-1681-98
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
SHUI LING JULIE CHAK
Respondent
REASONS FOR ORDER
HANSEN J.
[1] These two appeals, brought on behalf of the Minister of Citizenship and Immigration, are from the June 26, 1998 decision of a citizenship judge wherein the respondents' applications for a grant of citizenship were approved. These appeals were heard together at the request of counsel.
[2] The respondents, husband and wife, arrived in Canada on October 25, 1991 and were granted permanent resident status on that date. They applied for Canadian citizenship on October 6, 1997.
[3] The citizenship judge found that although the respondent, Ka Wah Hui, was short 272 days and the respondent, Shui Ling Julie Chak, was short 263 days of the minimum requirement of three years residency, they had established a residential base in Scarborough and a centralized mode of living in Canada. The citizenship judge noted that the reason for the respondent Shui Ling Julie Chak's absences from Canada was due to her employment and that of the respondent Ka Wah Hui was to look after his father's business. In the printed form decisions, the citizenship judge stated that the respondents met the residence requirements of the Citizenship Act, R.S.C. 1985, c. C-29 ("Act") as contemplated in Papadogiorgakis, [1978] 2 F.C. 208 (T.D.).
[4] In the application submitted by the respondent Shui Ling Julie Chak, she explained that she was having difficulty finding employment in Canada. After some time, she secured employment with a Canadian firm as its import director. She was sent to Hong Kong by her employer to take advantage of her merchandising skills and her connections there. For the most part, her absences from Canada while she was in Hong Kong were covered by a returning resident's permit. As the family did not want to be separated, the entire family obtained permits and lived with the respondent in Hong Kong. They lived in a rented flat which they no longer have.
[5] The respondents' applications for citizenship included documents relating to the purchase of a home, property taxes and utilities, tax returns, banking and investments, insurance polies and church involvement.
[6] In Lam v. Canada (The Minister of Citizenship and Immigration), [1999] F.C.J. No. 410 (F.C.T.D.) at paragraph 33, Lutfy J. (as he then was) stated the standard of review on an appeal from a citizenship judge as follow:
| Justice and fairness, both for the citizenship applicants and the Minister, require some continuity with respect to the standard of review while the current Act is still in force and despite the end of the de novo trials. 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] As well, after reviewing the three schools of jurisprudence in this Court regarding the interpretation of the residence requirements of paragraph 5(1)(c) of the Act 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... |
[8] The appellant submits that the citizenship judge ignored relevant evidence and that the extent of the physical absences from Canada are indicative of persons who are dividing their time between Canada and Hong Kong, rather than persons residing in Canada.
[9] In my view, the citizenship judge did not ignore relevant evidence. The reasons reveal that he was aware of the length of the absences from Canada and the reason for the absences, namely, the respondent Shui Ling Julie Chak's employment. As well, there was strong indicia that the respondents had centralized their mode of living in Canada. The respondents' first absence from Canada did not occur until almost one year after their arrival. They purchased a home and set up residence before the respondent Shui Ling Julie Chak found employment which required her to work in Hong Kong. The evidence indicates the respondent accepted this employment due to the difficulty she was having in finding employment in Canada. Furthermore, when possible, she and her family always returned to Canada. Under these circumstances, it was open to the citizenship judge to find that the respondents had centralized their mode of living in Canada and met the residence requirement of the Act.
[10] The appellant also drew the Court's attention to the date the citizenship judge stated the respondents established "a centralized mode of living in Canada" as October 25, 1991, the day they arrived in Canada. The appellant argues that this is impossible in one day. Given the strong factual basis for the respondents' position, I am not prepared to overturn the citizenship judge's decision for this error.
[11] For these reasons, the appeal is dismissed.
"Dolores M. Hansen"
J.F.C.C.
OTTAWA, ONTARIO
November 9, 2000
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