Date: 19990727
Docket: T-1669-98
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Applicant,
- and -
TAT YIN TSANG,
Respondent.
REASONS FOR JUDGMENT
ROULEAU J.
Introduction
[1] This appeal, under s-s. 14(5) of the Citizenship Act (the "Act") and s. 21 of the Federal Court Act , is brought on behalf of the Minister of Citizenship and Immigration from the decision of a citizenship judge, dated June 18, 1998, wherein he approved the application of the respondent for a grant of Canadian citizenship under s-s. 5(1) of the Act.
[2] In this case, the appeal was launched on August 20, 1998. It is therefore governed by the Federal Court Rules, 1998 and it is not a trial de novo, but will now proceed by way of appeal based on the record before the citizenship judge1. In light of the factual determination involved, it seems that some deference must be accorded to the factual findings of the citizenship judge and some deference should be applied because of the special knowledge and experience of the citizenship judge.
Facts
[3] The respondent entered Canada and acquired permanent residence status on April 11, 1992. He was accompanied by his wife and two daughters upon his arrival.
[4] In July 1994, the respondent entered into a consulting employment agreement with Hansen Industries Ltd. Since November 1995, he has been employed by Alpha Technologies Ltd. as a regional sales manager.
[5] On February 2, 1997, the respondent completed an application for Canadian citizenship which was received by citizenship registration in Sydney, Nova Scotia on February 12, 1997.
[6] According to the information he provided on his application, the respondent was not physically present in Canada for a minimum of three years of the four years preceding the date he signed his application for Canadian citizenship, since he was absent from Canada 819 days within the four year period.
[7] The respondent claims that the reason for his absence from Canada was to establish business contacts to pave his way as a business consultant for the Canadian telecommunications business.
[8] In support of his application for Canadian citizenship, the respondent submitted copies of various documents.
Decision of the Citizenship Judge
[9] The citizenship judge found that the respondent had met the residency requirement of s-s. 5(1)(c) of the Act, despite the fact that he had not, during the four year period preceding his application for citizenship, been physically present in Canada for at least 1095 days.
Issue
[10] Did the citizenship judge err in law or in fact in finding that the respondent satisfied the requirement in s-s. 5(1)(c) of the Act that within the four years preceding the date of his application for citizenship, he accumulated at least three years, or 1095 days of residence in Canada?
Arguments of the Applicant
[11] The applicant submits that although the word "residence" is not specifically defined under s-s. 2(1) of the Act, the allowance for one year"s absence during the four year period under s-s. 5(1)(c) of the Act creates a strong inference that presence in Canada during the other three years is mandatory. Since the respondent was only present in Canada for 642 days, the applicant alleges that he does not satisfy this requirement. However, the applicant recognizes that much jurisprudence of this Court does not require an application for citizenship to maintain physical presence in Canada for the whole 1095 days, and that in those cases, the test applied is whether Canada is the country in which the individual has centralized his mode of existence.
[12] The applicant argues that even under this favourable test, the citizenship judge erred when he found the respondent met the residency requirement. The respondent"s pattern of physical presence in Canada between February of 1993 and November of 1995, before he was employed by Alpha Technologies of Burnaby, BC, indicate he was merely visiting Canada; that the extent of the respondent"s absences during that period is substantial; and finally that the quality of the connection the respondent has with Canada is negligible.
Conclusion
[13] Since the word residence remains to be defined in s. 5 of the Act, its meaning is still unclear. This Court has rendered many decisions establishing that an actual presence in Canada throughout the specified statutory period is no longer a prerequisite to meeting the residency requirement of the Act. However, this is a question of mixed law and fact in which the importance of physical presence should be analysed and determined in each case.
[14] In the case at bar, the respondent has settled his family in Canada. His absences abroad, while voluntary, appear business related. Only his employment with Alpha Technologies appears legitimate.
[15] Though the citizenship judge should be permitted considerable deference, I think it was incumbent upon him to satisfy me that he applied the proper test in order to determine that the initial lengthy absences could be justified. No where in his reasons for judgment does the citizenship judge explain why these absences should be considered only temporary or that the respondent had established a pied-à-terre in Canada before finding legitimate employment in November of 1995.
[16] Appeal allowed.
(Sgd.) "Paul Rouleau"
Judge
Vancouver, British Columbia
27 July 1999
[17] FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
HEARING DATED: July 27, 1999
COURT NO.: T-1669-98
STYLE OF CAUSE: Re Tat Yin Tsang
PLACE OF HEARING: Vancouver, BC
REASONS FOR JUDGMENT OF ROULEAU J.
dated July 27, 1999
APPEARANCES:
| Ms. Emilia Péch for the Applicant |
| Mr. Tat Yin Tsang on his own behalf |
SOLICITORS OF RECORD:
| Mr. Morris Rosenberg for the Applicant |
Deputy Attorney General of Canada
__________________
1 Canada (M.C.I.) v. Cheung (1998), F.C.J. No. 813 (T.D.) per Nadon J.
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