Date: 19990714
Docket: T-2306-98
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Appellant
- and -
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
AND IN THE MATTER OF
GUILLERMO WU CHANG
Respondent
REASONS FOR JUDGMENT
TEITELBAUM J.
[1] This is an appeal pursuant to subsection 14(5) of the Citizenship Act (the "Act") by the Minister of Citizenship and Immigration from a decision of Citizenship Judge Van Roggen, dated October 28, 1998 approving the application for citizenship of the respondent Guillermo Wu Chang under subsection 5(1) of the Act .
[2] As grounds for the application, the Minister states:
| That Citizenship Judge VAN ROGGEN failed to have regard to the residence requirements of paragraph 5(1)(c) of the Citizenship Act, which requires that an applicant for citizenship accumulate at least three (3) years of residence in Canada within the four (4) years immediately preceding the date of application for citizenship. |
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[3] Immediately after the hearing, I informed the parties that I was going to allow the appeal and set aside the decision dated October 18, 1998.
[4] On January 1, 1994, the respondent, along with his wife and two children, was granted permanent residence status in Canada. He qualified for immigration to Canada as an investor under the business immigration program. I am told that at the time he qualified under the business immigration program he had to invest at least $400,000.00 in Canada.
[5] This indicates that such a person has to have, what I would say, is a very substantial sum of money. I think the facts of this case bear this out.
[6] The country of last permanent residence of the respondent and his family was Hong Kong.
[7] Five days after arriving in Canada, the respondent left Canada and travelled to Hong Kong.
[8] As the appellant states in paragraph 4 of the Appellant"s Memorandum of Fact and Law, "This was the first of seventeen trips to Hong Kong made by the Respondent between the date of landing in Canada as a permanent resident (sic ) to the date of his application for Canadian citizenship on September 30, 1997."
[9] As I have stated, the respondent became a permanent resident and first came to Canada on January 1, 1994 along with his wife and two children. The respondent"s two children preceded the respondent to Hong Kong; they left Canada for Hong Kong on January 4, 1994.
[10] For a record of the respondent"s absences from Canada, I would refer to the respondent"s Citizenship Application, dated September 30, 1997. The respondent states that he was absent from Canada from January 1, 1994 to August 30, 1997 for a total of 1051 days. He gives, as the reason for these absences, "business and family matters."
[11] When the two children first left Canada on January 4, 1994, they stayed away from Canada for 565 days and only returned to Canada on July 23, 1995. They did not set foot in Canada for one and a half years.
[12] On September 30, 1997, the respondent applied for Canadian citizenship despite the fact that he had a shortage of 778 days with respect to meeting the minimum requirement of three years residence in Canada within the four years immediately preceding the date of his application as per paragraph 5(1)(c) of the Act.
[13] On October 28, 1998, Citizenship Judge Van Roggen approved the respondent"s application for citizenship.
[14] The respondent first visited Canada some time in the 1950s when his parents brought him to Canada for a visit. In the 1980s the respondent had an apartment in Toronto for more than 10 years. I have no evidence that he ever lived in this apartment.
[15] In May 1993, the respondent incorporated a British Columbia company, Rockreef Investment Limited, in which the respondent and his wife are shareholders.
[16] In paragraph 3(b) and (c) of the Respondent"s Memorandum of Fact and Law, the respondent states:
| b) Since the early to mid-1970's the Respondent and his wife have kept in contact with friends and associates in Canada and have visited Canada both on business and on family vacations. The Respondent is a shareholder of Rockreef Investment Limited ("Rockreef") which is a British Columbia company incorporated in May 1993. Rockreef has purchased a commercial property at 7960-7966 Granville Street, Vancouver, British Columbia at a cost of $376,716. It is the intention of the Respondent to develop that site to accommodate a fast-food Chinese restaurant under the trade name of Super Bowl which restaurant will be patented after similar restaurants located in Hong Kong. The intent is to develop this concept into a chain of restaurants located primarily in Western Canada. In October 1995, Rockreef purchased a commercial property located in Langley, British Columbia at a cost of $1,215,000. This property is currently leased to Roger"s Entertainment with the intent to further develop the property. Rockreef plans to invest in Western Canada and they are presently seeking offshore investors for this purpose. Rockreef engaged the Respondent to carry the responsibilities of developing and financing the Super Bowl chain of restaurants and to obtain financing for real estate acquisitions. The Respondent accordingly entered into a service contract with Rockreef in June of 1994. |
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| c) From March of 1993 to May of 1996, the Respondent and his family maintained a residence in an apartment at 1803-1415 W. Georgia Street, Vancouver, British Columbia, purchased by the Respondent in October of 1992 for $373,000. After renovations were completed in May of 1996, the Respondent and his family moved to their current principle residence at 1282 West 45th Avenue, Vancouver, British Columbia which was purchased on January 4, 1994 for $780,000. The Respondent pays income tax in Canada and has done so since the 1994 taxation year. |
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[17] It is interesting to note that in paragraph 3(b), the respondent states it is the intention of his company to develop the property at 7960-7966 Granville Street in Vancouver, BC. The property was purchased in May 1993. I have no evidence of any development having taken place.
[18] The respondent states that he and his family maintained a residence in an apartment at 1803-1415 W. Georgia Street in Vancouver, BC purchased by the respondent in October 1992 for $373,000.
[19] If the respondent and his family came to Canada as permanent residents on January 1, 1994, it is obvious the family never resided in the apartment before January 1, 1994.
[20] The respondent purchased a property at 1282 W. 45th Avenue on January 4, 1994 for $780,000 but only moved his family into this property in May 1996.
[21] It is apparent from the above that the respondent was very seldom in Canada. In any event, as I have stated, on October 29, 1998 the citizenship judge granted the respondent citizenship.
[22] I believe it important to reproduce the decision of Citizenship Judge Van Roggen:
| The applicants have been in Canada 317 days short 778 days. |
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| Due to family circumstances beyond their control - the death of 2 brothers in Hong Kong - the applicants had to travel frequently to Hong Kong to assist the widows and the bereaved mother. The mother is being interview May 12/99 for immigration to Canada under her sons sponsorship. |
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| Mr. Guillermo is a property developer. He supports the community in which he lives. He owns his home plus two other rental units - one in Vancouver and one in Eastern Canada. He works for a Canadian Company Rockreef Investment Ltd. The applicant has filed income tax since 1993. Both applicants speak English fluently having been educated in the USA and Sophia Wong attended university in Alberta for 6 years prior to her marriage. |
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| The family are of the Catholic religion having been in Peru prior to Hong Kong. |
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| Documents reviewed include bank account, medical card, charitable donations, income tax. Based on the Thurlow case I believe the applicants have centralized their mode of living within Canada. The children attend Canadian schools, mother applying to live in Canada - in the interview their clear intention is to work and live in Canada. |
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| I approve their application for citizenship. |
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[23] It is important to note one of the factors the citizenship judge thought should be considered in the granting of citizenship. She states, "The family are of the Catholic religion having been in Peru prior to Hong Kong." I am satisfied that this is an error in law. I am satisfied that one"s religion is not a relevant consideration in granting an applicant citizenship. I find nothing in the Citizenship Act that makes reference to one"s religion as a factor to be considered.
[24] In fact, I am satisfied that considering religion as an element for the granting of citizenship would be in violation of the Canadian Charter of Rights and Freedoms. I have difficulty in trying to understand why Citizenship Judge Van Roggen considered the respondent"s religion as a factor to be considered in granting the respondent his Canadian citizenship.
[25] I do not intend to review the jurisprudence given to me by both counsel. I understand that the judges of this Court have different views as to the meaning to be given to the term residence found in s. 5(1)(c) of the Act.
[26] In the case of James Lo (1993), 19 Imm. L.R. (2d) 213 at 216, I state:
| In Re Pourghasemi, unreported T-80-92, Mr. Justice Muldoon in stating the purpose of s. 5(1)(c) in a situation where the appellant had only accumulated 357 days of residence in Canada when he needed 1,095 days in order to qualify (in the present case the appellant is short 305 days) states, at pp. 1 and 2, the following: |
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| In drawing a purposive interpretation of the statutory language it should be asked: Why did Parliament prescribe at least 3 years of Canadian residence in the 4 years immediately before applying for citizenship? |
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| It is clear that the purpose of para. 5(1)(c) is to insure that everyone who is granted precious Canadian citizenship has become, or at least has been compulsorily presented with the everyday opportunity to become, "Canadianized". This happens by "rubbing elbows" with Canadians in shopping malls, corner stores, libraries, concert halls, auto repair shops, pubs, cabarets, elevators, churches, synagogues, mosques and temples " in a word wherever one can meet and converse with Canadians " during the prescribed three years. One can observe Canadian society for all its virtues, decadence, values, dangers and freedoms, just as it is. That is little enough time in which to become Canadianized. If a citizenship candidate misses that qualifying experience, then Canadian citizenship can be conferred, in effect, on a person who is still a foreigner in experience, social adaptation, and often in thought and outlook. If the criterion be applied to some citizenship candidates, it ought to apply to all. So, indeed, it was applied by Madam Justice Reed in Re Koo , T-20-92, on December 3, 1992 [reported 19 Imm. L.R. (2d) 1 (Fed. T.D.)], in different factual circumstances, of course. |
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| I am in total agreement with this statement of Mr. Justice Muldoon. |
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[27] I see no reason to differ from my statement in the Lo case. The facts before me clearly indicate that the respondent did nothing to adapt to becoming a "Canadian". He was virtually never in Canada, nor was his wife and children in Canada for the first 365 days after they first arrived here.
[28] I ask how one can establish a residence in Canada without being in Canada?
[29] I have said before and I repeat, Canadian citizenship is not a commodity to be purchased. The fact that one may have the funds to purchase property in Canada or to come to Canada pursuant to the business immigration program does not mean that one can or should be able to buy one"s citizenship. Canada is considered the best country to live in by the United Nations. It is a privilege to be a Canadian.
[30] From the facts of this case, the respondent did nothing in Canada other than make investments in property. He was not in Canada long enough to become involved in any community activity.
[31] I am satisfied that the Citizenship Judge Van Roggen erred in law and that her decision was made without regard to the evidence before her.
[32] The decision of the citizenship judge is hereby quashed.
(Sgd.) "Max M. Teitelbaum"
Judge
Vancouver, British Columbia
14 July 1999
[33] FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
HEARING DATED: July 13, 1999
COURT NO.: T-2306-98
STYLE OF CAUSE: Re Guillermo Wu Chang
PLACE OF HEARING: Vancouver, BC
REASONS FOR JUDGMENT OF TEITELBAUM J.
dated July 14, 1998
APPEARANCES:
Ms. Pauline Anthoine for the Appellant
Ms. Baerbel Langner for the Respondent
SOLICITORS OF RECORD:
| Morris Rosenberg for the Appellant |
Deputy Attorney General
of Canada
| Zaifman Associates for the Respondent |
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