Date: 19990401
Docket: T-1531-98
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
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
- and -
SHIH-YUAN CHEN
Respondent
REASONS FOR ORDER
LUTFY J.:
[1] In her decision of June 3, 1998, the Citizenship Judge concluded that the respondent met the residency requirements in paragraph 5(1)(c) of the Citizenship Act. The respondent was physically within Canada for 390 of the required 1095 days, during the four years preceding his application for citizenship. The Minister of Citizenship and Immigration appeals this decision, pursuant to subsection 14(5) of the Act and Rule 300(c) of the Federal Court Rules, 1998.
[1] The respondent made representations on his own behalf during the hearing. Counsel for the applicant did not object to these representations despite the respondent's failure to file his record, pursuant to Rule 310.
[2] The applicant, 45, entered Canada as an investor immigrant on April 26, 1994. He was accompanied by his spouse and their ten-year old son. Some two weeks after their arrival in Canada as permanent residents, the family returned to Taiwan, where they were born and had been previously residing, principally to allow the child to complete his academic year. The family also attended to outstanding issues with respect to their move to Canada. During their initial stay in April 1994, they acquired condominium premises in Burnaby, B.C. It was not until August 1994 that the family moved to Canada in any real sense. The couple's child took up schooling here in September 1994. In May 1996, the couple purchased a new residence in Vancouver which better suited their family needs. While the respondent first came to Canada in 1992, there is no evidence that he had any ongoing presence in this country prior to his landing in April 1994.
[3] The respondent filed his application for citizenship in June 1997, some two months subsequent to the third anniversary of the family's landing in Canada. The reasons of the Citizenship Judge, in support of her conclusion that the respondent had met the residency requirements despite his shortage of 705 days, state:
| The applicant travelled to Taiwan for business purposes. He is a lawyer and a legal consultant to a contracting company in Taiwan. He had difficulty to find a job in Canada but future plans include starting a trading company in Canada (Vancouver). The applicant is philanthropic - kind and considerate to his neighbours and is an asset to the community. He owns a home in Vancouver, pays income tax, property tax and is a valued client at the Royal Bank of Canada. Since his application he has spent additional time in Vancouver. All documents reviewed. His wife and child live in Vancouver. I approve Mr. Chen for citizenship. |
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The applicant's position is that the Citizenship Judge ignored the respondent's burden to establish that he had centralized his mode of living in Canada and, having done so, continued to maintain a real presence in Canada despite his frequent trips abroad. In the applicant's view, the decision of the Citizenship Judge is wrong and based on irrelevant considerations.
[4] In Papadogiorgakis, [1978] 2 F.C. 208 (T.D.), Thurlow A.C.J., as he then was, stated at pp. 213-4:
| It seems to me that the words "residence" and "resident" in paragraph 5(1)(b) of the new Citizenship Act are not as strictly limited to actual presence in Canada throughout the period as they were in the former statute but can include, as well, situations in which the person concerned has a place in Canada which is used by him during the period as a place of abode to a sufficient extent to demonstrate the reality of his residing there during the material period even though he is away from it part of the time. |
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This principle was succinctly reiterated by Dubé J. in Banjeree, Re (1994), 25 Imm. L.R. (2d) 235 (F.C.T.D.) at 238: "It is the quality of attachment to Canada that is to be ascertained.".
[5] In Koo, Re, [1993] 1 F.C. 286 (T.D.) at 293-4, Reed J. reviewed the case law that had developed in this Court since the leading decision in Papadogiorgakis, some fifteen years earlier. Justice Reed concluded that the appropriate test is whether Canada is the place that the person "regularly, normally or customarily lives" or has centralized their mode of existence. In making this determination, she suggested that the relevant criteria should include the length of the person's stays in Canada, the residence of the person's immediate and extended family, the extent and the reason for the physical absences, the quality of the connection with Canada in comparison with any other country and whether the time spent in Canada indicates a returning home as opposed to a mere visit.
[6] As stated earlier, the applicant's principal attack against the decision of the Citizenship Judge was her failure to determine initially whether the respondent had established and maintained a central mode of living in Canada. Counsel for the applicant also had more specific criticisms of the reasons for decision. The statement that the respondent travels to Taiwan for business purposes is incomplete in that it does not mention four trips of significant duration to care for his mother. The finding that the applicant is a lawyer is wrong. He did some undergraduate studies in law, but works as a legal assistant. The services he renders for a contracting company in Taiwan establishes a connection to that country and not to Canada. The reference to the respondent's future plans to establish a trading company in Canada is, in the view of the applicant's counsel, irrelevant. While acknowledging that the record discloses a number of charitable donations made by cheque from the couple's joint banking account, the applicant argued that each of these cheques was signed by the respondent's wife. In the applicant's view, the fact that the respondent may be "a valued client" of a financial institution is of little assistance to the respondent because of the joint account. Finally, the applicant correctly argues that the additional time spent in Canada by the respondent since the filing of his application for citizenship ought not to have been taken into consideration by the Citizenship Judge.
[7] The respondent stated that he was landed in Canada on the basis of a $250,000 investment in a syndicated fund. This explains the substantial investment income in his Canadian income tax returns for 1994 through 1996. These returns disclose no taxable employment or business income. His frequent trips to Taiwan were to wind down his business interests and to dispose of his assets in a difficult economic situation. His mother, 77, is not in good health and he is one of her children that must attend to her from time to time. In his view, he has centralized his mode of living in Canada through the move of his family, the schooling of his child, the acquisition of housing on two separate occasions and his ongoing stays in Vancouver.
[8] In Huang, Re (1997), Imm.L.R. (2d) 113 (F.C.T.D.), Justice Dubé aptly stated that "the most eloquent indicia of residency is the establishment of a person and his family in this country, coupled with a manifest intention of making the establishment their permanent home". The respondent's stays in Canada between his trips to Taiwan in 1996 and 1997 are for substantially longer periods than those in 1994 and early 1995. This is consistent with his information that one of the principal purposes of his trips to Taiwan was to dispose of his holdings. The lengthier stays in Canada also demonstrate his connection with this country.
[9] In Lam, Re (25 March 1999), T-1310-98 (F.C.T.D.), I considered the appropriate standard of review in citizenship appeals, in the context of two recent developments. First, with the introduction of the Federal Court Rules, 1998, citizenship appeals no longer proceed by way of trial de novo. A citizenship appeal is now dealt with as an application, pursuant to Rule 300(c). Second, Parliament is currently considering new citizenship legislation which would bring significant changes to the examination and determination of citizenship applications and this Court"s review of the resulting decisions. After noting certain objective factors that might dictate greater curial deference, I concluded that, in view of this transitional period, it would not be appropriate to depart radically from the current standard of review (at paragraph 33):
| 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. |
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[10] In my view, on the basis of Papadogiorgakis and Koo, Re, it was open to the Citizenship Judge to reach a conclusion favourable to the respondent. The presence of the respondent's family in Canada since August 1994 and his returns to Canada on a frequent basis and for increasingly longer periods of time are consistent with the general thrust of this case law. Her written reasons might have focussed more on the respondent's establishment and maintenance of his mode of living here. Her consideration of the additional time he spent in Vancouver subsequent to the filing of his application was not relevant to the calculation of days but, in her mind, might be an indicia of his attachment to Canada. On the basis of his shortage of 705 days, the decision under appeal may be at the outer limit of what is acceptable in these circumstances. In the end, the decision under appeal does not disclose errors which would warrant substituting my decision for that of the Citizenship Judge.
[11] Accordingly, the appeal is dismissed.
J.F.C.C.
Ottawa, Ontario
April 1, 1999
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