Canada (Minister of Citizenship and Immigration) v. Tseng, docket T-1434-98

Date: 19990709

Docket: T-1434-98

OTTAWA, ONTARIO, JULY 9, 1999

PRESENT:      THE HONOURABLE MR. JUSTICE LEMIEUX

BETWEEN:

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Applicant

     - and -

     ROEL TSENG

     Respondent

     J U D G M E N T

         For the reasons given, the Minister's application and appeal in this case are allowed and the decision of the Citizenship Judge dated May 19, 1998, is quashed.

    

    

     J U D G E

Date: 19990709

Docket: T-1437-98

OTTAWA, ONTARIO, JULY 9, 1999

PRESENT:      THE HONOURABLE MR. JUSTICE LEMIEUX

BETWEEN:

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Applicant

     - and -

     CHUN-CHING LIN

     Respondent

     J U D G M E N T

         For the reasons given, the Minister's application and appeal in this case are allowed and the decision of the Citizenship Judge dated May 19, 1998, is quashed.

    

    

     J U D G E

Date: 19990709

BETWEEN:

     Docket T-1434-98

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Applicant

     - and -

     ROEL TSENG

     Respondent

AND

     Docket T-1437-98

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Applicant

     - and -

     CHUN-CHING LIN

     Respondent

     REASONS FOR JUDGMENT

LEMIEUX J.:

A.      INTRODUCTION

[1]      These reasons deal with two appeals by the Minister of Citizenship and Immigration (the "Minister") pursuant to subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29, from two decisions dated May 19, 1998, by Citizenship Judge Robert Meagher, (the "Citizenship Judge") who approved the applications of Chun-Ching Lin and Roel Tseng (the "respondents") for grant of citizenship. The respondents are husband and wife.

[2]      The Citizenship Judge held the respondents satisfied the residency requirements of paragraph 5(1)(c) of the Act despite the fact the respondents had been physically absent from Canada for substantial periods prior to the filing of their applications for grant of citizenship. In Chun-Ching Lin's case, he had been physically present in Canada for 625 days and had a shortfall of 470 days with respect to meeting the Act's requirements of at least three years' residence in Canada within the four years immediately preceding the date of his application. In Roel Tseng's case, she had been physically present in Canada for 760 days and had a shortfall of 335 days.

[3]      The Minister says the Citizenship Judge erred in finding that the respondents had met the residency requirements of paragraph 5(1)(c) of the Act.

[4]      These appeals come to the Court by way of application under Rule 300(c) of the Federal Court Rules, 1998 and are based solely on the certified records, no affidavits having been filed either by the Minister or by the respondents. Moreover, the certified records do not contain any transcript of the proceedings before the Citizenship Judge. Such transcripts are not a requirement of the Act or of the Citizenship Regulations.

B.      THE FACTS

[5]      The respondents are citizens of Taiwan. They were issued Canadian permanent residence visas with occupations in the independent worker category. They were landed in Canada on July 18, 1993. Their two children were already in Canada since 1991 attending school. The respondents' children stayed in an apartment rented by the respondents during the period November 24, 1992 to October 2, 1993. The respondents then purchased a house in Toronto. In addition to their house, the respondents' records evidence driver's licences and health cards. Their citizenship application notes possession of social insurance cards, bank accounts and credit cards.

[6]      The following table contains the respondents' absences and their noted reason for such absences:

---

(1)      Roel Tseng

Absences from Canada

From (date)          To (date)          Destination          Reason for absence

Y      M      D      Y      M      D

1993      20      20      1993      11      16      Taiwan          To Terminate my own Business in Taiwan

1994      03      12      1994      03      19      U.S.A.          Visiting U.S.A.

1994      04      04      1994      05      17      Taiwan          To take turn of taking care of my grandparents

1994      09      29      1994      10      27      Taiwan          To take care of my grandparents

1994      12      17      1995      01      17      Taiwan          Family reunion

1995      02      08      1995      03      10      Taiwan          Father had a major operation

1995      07      21      1995      08      26      Taiwan          Father had a stroke

1995      10      27      1995      12      09      Taiwan          Taking care of my father

1996      01      13      1996      04      17      Taiwan          To promote the sale of MAGNOTTA wine

                                 and joined a wine show

1996      07      21      1996      10      03      Taiwan          To look after my mother and continuing promote                                  MAGNOTTA wine

1996      10      29      1997      03      06      Taiwan          Family reunion and joining several wine shows     

(2)      Chun-Ching Lin

Absences from Canada

From (date          To (date)          Destination      Reasons for absence

Y      M      D      Y      M      D

1994      01      13      1994      02      01      Taiwan          To take care my grandfather

1994      03      12      1994      03      19      U.S.A.          Tour

1994      04      04      1994      05      30      Taiwan          To take care of my grandparents

1994      10      20      1995      01      17      Taiwan          To survey the Taiwan market for marketable                                  Canadian products

1995      04      04      1995      04      28      Taiwan          To select agent for Pinyu Trading Inc.

1995      07      11      1995      08      26      Taiwan          To promote the sale of Pinyu Trading Inc.

1995      10      26      1995      12      22      Taiwan          To promote the sale of Pinyu Trading Inc.

1996      01      13      1996      04      25      Taiwan          To promote the sale of Canadian (MAGNOTTA)

                                 wine and joined a wine show

    

[7]      The respondents filed their application for Canadian citizenship on July 22, 1996, a little over three years after being landed.

C.      THE CITIZENSHIP JUDGE'S DECISIONS

[8]      The Citizenship Judge issued brief reasons for granting approval of citizenship. His reasons in Mr. Chun-Ching Lin's case were:

Despite a residence shortage of 406 days, the applicant, through credible declaration of action and intent and the provision of irrefutable documentation, has, within the THURLOW FRAMEWORK, given proof of both the establishment and maintenance of a bona fide Canadian centrality of living. In the relevant period between LANDING and FIRST ABSENCE, the customary indicia were put in place: domicile, SIN, Health Insurance, bank account, family reunification and employment with Canadian Corporation.

Periods of absence were attributable to familial responsibilities and ongoing efforts to promote Canadian-made products.

Throughout all periods of absence, ties for a Canadian pied-a-terre were fully maintained.

All outside-Canada resources/holdings were terminated appropriately and at the proper time.

All other requirements for citizenship having been met, I have, therefore, approved this application.

[9]      The Citizenship Judge's reasons in Roel Tseng's case are similarly worded. Paragraph (1) is the same as in her husband's case except for a residency shortage of 335 days. Paragraph (2) is slightly different adding a reference to "visitation and care of ailing parents". The balance of the reasons are the same.

---

D.      THE CITIZENSHIP ACT

[10]      Paragraph 5(1)(c) of the Act reads as follows:

5. (1) The Minister shall grant citizenship to any person who      . . .      (c) has been lawfully admitted to Canada for permanent residence, has not ceased since such admission to be a permanent resident pursuant to section 24 of the Immigration Act, and has, within the four years immediately preceding the date of his application, accumulated at least three years of residence in Canada calculated in the following manner:          (i) for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and          (ii) for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence;

5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois_:      . . .      c) a été légalement admise au Canada à titre de résident permanent, n'a pas depuis perdu ce titre en application de l'article 24 de la Loi sur l'immigration, et a, dans les quatre ans qui ont précédé la date de sa demande, résidé au Canada pendant au moins trois ans en tout, la durée de sa résidence étant calculée de la manière suivante_:          (i) un demi-jour pour chaque jour de résidence au Canada avant son admission à titre de résident permanent,          (ii) un jour pour chaque jour de résidence au Canada après son admission à titre de résident permanent;

[11]      The Act was amended in 1987 to add section 1.1 which reads:

(1.1) Any day during which an applicant for citizenship resided with the applicant's spouse who at the time was a Canadian citizen and was employed outside of Canada in or with the Canadian armed forces or the public service of Canada or of a province, otherwise than as a locally engaged person, shall be treated as equivalent to one day of residence in Canada for the purposes of paragraph (1)(c) and subsection 11(1).

(1.1) Est assimilé à un jour de résidence au Canada pour l'application de l'alinéa (1)c) et du paragraphe 11(1) tout jour pendant lequel l'auteur d'une demande de citoyenneté a résidé avec son conjoint alors que celui-ci était citoyen et était, sans avoir été engagé sur place, au service, à l'étranger, des forces armées canadiennes ou de l'administration publique fédérale ou de celle d'une province.

E.      DISCUSSION

[12]      The standard of review by this Court on a statutory appeal by way of an application under rule 300 and not by way of trial de novo from a decision of a Citizenship Judge was recently set out by Lutfy J. in Lam v. The Minister of Citizenship and Immigration, court file T-1310-98, March 26, 1999. That standard, he held, was close to the correctness end of the spectrum; some slight deference should be paid to a decision of a Citizenship Judge. I agree.

[13]      The Minister's counsel said the Citizenship Judge based his decisions on the THURLOW FRAMEWORK. The THURLOW FRAMEWORK is a reference to the decision by Thurlow A.C.J., (as he then was), In Re Papadogiorgakis, [1978] 2 F.C. 208 (T.D.). Counsel for the Minister argued that the Citizenship Judge misapplied the principles of that case to the facts before him. She said if the Citizenship Judge had properly applied the principles of Re Papadogiorgakis, he would have denied the applications.

[14]      Counsel for the Minister analyzed In Re Papadogiorgakis in the following way. Mr. Papadogiorgakis had come to Canada in 1970 and studied for four years at Acadia University. He obtained permanent residence in Canada in 1974. The relevant period for citizenship purposes was December 6, 1973 to December 6, 1977. During that period, Mr. Papadogiorgakis was studying at Acadia but from January to June 1976 and September 1976 to August 1977, was studying at the University of Massachusetts.

[15]      In terms of legal principles, counsel for the Minister said that In Re Papadogiorgakis stood for the following propositions:

(a)      residency time for citizenship purposes can include physical absences from Canada;

(b)      for this principle to apply, however, the applicant for Canadian citizenship must first have established his/her centralized mode of living in Canada. Mr. Papadogiorgakis had resided in Canada since 1970 and for material citizenship purposes between May 1974 to December 1976. Thurlow A.C.J. specifically found that Mr. Papadogiorgakis had centralized his mode of living in Canada in May 1994 in the following terms at page 214-15:

... I am of the opinion that the appellant was, throughout the material time, that is to say, from May 1974 to December 1976 resident at the home of his friends at Tusket, N.S. He did not own the property but it was there that he centralized his mode of living in May 1974. It was there that he lived throughout the remainder of 1974 and the year 1975. In no ordinary sense could his presence there in that period be called a "stay" or "visit". And when, in 1976, he left to go to university, he did so only for the temporary purpose of pursuing his studies. He did so without closing out or breaking the continuity of his maintaining or centralizing his ordinary mode of living there. He took with him what he needed for the purpose of his stay in Massachusetts, but left the remainder of his belongings at the home where he had been living. And he returned there at frequent intervals for weekends and for the Christmas and summer breaks. He returned there as well when his courses were concluded. As it appears to me, his mode of living was centralized there and had been centralized there for more than a year and a half before he began his courses at the university and it did not cease to be centralized there while he was at the university . In my view, it continued in all respects as before, subject only to the necessity of his absence therefrom for the temporary purpose of pursuing his studies.

(c)      The principle stated by Pratte J. (as he then was) in Blaha v. Minister of Citizenship and Immigration, [1971] F.C. 521 (T.D.), is still important. In that case, Pratte J. had said it was his opinion "a person is resident in Canada within the meaning of the Canadian Citizenship Act only if he is physically present (at least usually) on Canadian territory".

(d)      What Thurlow A.C.J. said In Re Papadogiorgakis of the Blaha principle was as follows at pages 213-14 of the reported case:

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. This may not differ much from what is embraced by the exception referred to by the words "at least usually" in the reasons of Pratte J. but in a close case it may be enough to make the difference between success and failure for an applicant. [emphasis mine]

(e)      Thurlow A.C.J. endorsed what Rand J. said in [1946] S.C.R. 209">Thomson v. M.N.R. [1946] S.C.R. 209 at 225 in the following terms:

But in the different situations of so-called "permanent residence", "temporary residence", "ordinary residence", "principal residence" and the like, the adjectives do not affect the fact that there is in all cases residence; and that quality is 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.

[16]      Counsel for the Minister invited me to examine the answers the respondents gave in their residency questionnaire. In an answer to the question "did you return to Canada from time to time?" Mr. Chun-Ching Lin said: "Yes to report the progress of the sale of our wine and to attend the shareholder meeting". Roel Tseng's answer to that question was: "Yes. Shareholder's meeting & marketing reports".

[17]      In answer to the question "did you maintain some form of residential base or pied-à-terre in Canada?", Mr. Chun-Ching Lin said "[Y]es. My children are studying here and living at the home I bought". Roel Tseng gave a similar answer.

[18]      In answer to the question "[D]uring your absences were you accompanied by family members?" Mr. Chun-Ching Lin answered: "Yes, sometimes I was accompanied by my wife." Roel Tseng answered: "Yes, business trip with my husband".

[19]      In answer to the question "what was your employment situation?", Chun-Ching Lin said he was Sales Manager of Pinyu Trading Inc. and Roel Tseng said she was Vice-President of Pinyu Trading Inc.

[20]      Counsel for the respondents counters that Re Papadogiorgakis stands for the proposition physical absences can count for residency purposes under the Citizenship Act. He said the respondents met the usual indicia of residency, home in Canada, children in Canada, possession of returning visas which establish intention. He emphasized the fact the respondents were landed in Canada as entrepreneurs and quickly satisfied their conditions of entry. He said the Citizenship Judge dealt with the periods of absences, held all these periods of absences were acceptable and legitimate. He cited several cases from this Court legitimizing absences as residency for purposes such as to close out a business, family necessities and the pursuit of Canadian business abroad.

F.      CONCLUSIONS

[21]      In my view, the Minister succeeds in these appeals because the Citizenship Judge erred in law in not applying the proper legal principles of residency to the facts of the two cases before him. The threshold analysis the Citizenship Judge had to conduct was whether the respondents had established their centralized mode of living in Canada before their lengthy absences to Taiwan, their country of citizenship.

[22]      The question of what constitutes a centralized mode of living has been analyzed in many decisions of this Court. It was analyzed by Thurlow A.C.J. in Re Papadogiorgakis. It was also extensively analyzed by Reed J. in Re Koo, [1993] 1 F.C. 286 (T.D.). Reed J. in the Koo case, supra, asked six questions which could assist in the determination of the issue. These questions 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 dependants (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 temporary employment abroad;

(6) what is the quality of the connection with Canada: is it more substantial than that which exists with any other country.

[23]      Within the entire analysis to determine in what circumstances absences will count as residency, it is important to keep in mind Parliament's intention. In my view, that intention is manifest in emphasizing that physical presence in Canada is a crucial factor in the residency assessment for citizenship purposes. The structure of paragraph 5(1)(c) leads to this conclusion. The benchmark is four years prior to the citizenship application and the measure is the accumulation of at least three years of residency calculated in the number of days. This means that an applicant for citizenship can be physically absent from Canada an entire year during the four-year period. In addition, the purpose of the 1987 amendment confirms this parliamentary intent about the importance of being present in Canada.

[24]      Physical presence was emphasized in Blaha, (supra) and in Re Papadogiorgakis, (supra). The purpose of being physically present in Canada is expressed by Muldoon J. in Re Pourghasemi, 62 F.T.R. 122 in these terms:

So those who would throw in their lot with Canadians by becoming citizens must first throw in their lot with Canadians by residing among Canadians, in Canada, during three of the preceding four years, in order to Canadianize themselves. It is not something one can do while abroad, for Canadian life and society exist only in Canada and nowhere else.

[25]      Based on the facts before me, in my view, it cannot be said that the respondents established a centralized mode of living in Canada before their lengthy absences. Rather, in my view, their centralized mode of living remained Taiwan where their links previously had been and where their family, except their children, resided.

[26]      The respondent Chun-Ching Lin stayed in Canada only six months before taking four trips of various lengths out of Canada in 1994, to Taiwan except for a short trip to the United States. Similar trips took place in 1995 and in 1996. The respondent Roel Tseng stayed only three months in Canada before leaving for Taiwan for one month in 1993 and taking four trips in 1994, to Taiwan except for a short trip with her husband in the United States then taking three other trips in 1995 to Taiwan and again in 1996.

[27]      Perhaps a unique feature in this case is that the respondents, husband and wife, took many of their trips to Taiwan together or their trips overlapped with one another. They were often together in Taiwan. Their children stayed in Canada continuing their education, a pattern which had existed prior to the respondents coming to Canada.

[28]      Another feature of this case is that the respondents' applications for Canadian citizenship were somewhat premature. They did not give themselves sufficient time to meet the residency requirements of the Citizenship Act because they filed their application for Canadian residency shortly after three years of being landed in Canada. In so doing, they did not take advantage of what Parliament gave them " a free year of non-residency outside of Canada.

[29]      For all of these reasons, the Minister's applications and appeals in both cases are allowed and each decision of the Citizenship Judge dated May 19, 1998, approving the citizenship application of the respondents, is quashed.

     "François Lemieux"

    

     J U D G E

OTTAWA, ONTARIO

JULY 9, 1999