Date: 19981020
Docket: T-2747-97
BETWEEN:
JING (JAMES) ZHOU,
Appellant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
ROULEAU, J.
[1] This is an appeal from the decision of a Citizenship Judge who denied this appellant Canadian citizenship on October 30, 1997. It was determined that Mr. Zhou did not meet the residency requirement under paragraph 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29, which requires that an applicant for Canadian citizenship must have accumulated at least three years of residency in Canada within the four years immediately proceeding his or her application. The Citizenship Judge found that the appellant was 336 days short of the required residency during the application period.
[2] Mr. Zhou filed an appeal on December 19, 1997. He claims he has kept sufficient ties with Canada to qualify for the residency requirement.
[3] Appeals to the Federal Court under subsection 14(5) of the Citizenship Act which were filed before the coming into force of the Federal Court Rules, 1998 on April 25, 1998, are trials de novo.1 It was therefore permitted to consider all of the evidence as if it was an entirely new proceeding.
[4] Mr. Zhou was born in China on March 4, 1968. He has completed 11 years of schooling. On December 17, 1989, he arrived in Canada with a student visa. He studied Business Management at BCIT for two years. He then became a permanent resident of Canada on June 27, 1992. While studying, Mr. Zhou worked for the Sheraton Hotel Plaza 500; he also operated a restaurant for some six months. He then found employment as a Marketing Manager with Delco International Trading Corporation. The company is involved with the importation and exportation of elevator and escalator packages and components. For business purposes, Mr. Zhou left Canada for China on the following dates: from November 22, 1994 to May 22, 1995 (184 days); May 30, 1998 to July 24, 1995 (55 days); and September 2, 1995 to the date of his application, December 16, 1996 (462 days). In all, he was found to be absent 701 days, leaving him 336 days short of required residency of 1095 days. This calculation was said to be erroneous.
[5] Upon examination of the facts, the Citizenship Judge was not convinced that Mr. Zhou maintained sufficient ties with Canada during these absences to count as periods of residency under the Citizenship Act.
[6] The Notice of Appeal is silent as to the alleged reason the figure of 701 days of absence is wrong. The figure was submitted by the appellant himself in his application for Canadian citizenship. It was suggested that Mr. Zhou's interview with the Citizenship Judge was of a very limited duration and that he may not have been properly assessed.
[7] In Re Papadogiorgakis (1978), 2 F.C. 208., Thurlow C.J. established the principle that full-time physical presence in Canada is not an essential residential requirement. A person with an established home of his own in Canada does not cease to be resident when he leaves for temporary purposes, whether on business, or vacation, or to pursue a course of study. In Re Ronaasen (September 16, 1982), Calgary, T-708-82 (F.C.T.D.)., Mr. Justice Mahoney stated:
| they (the authorities) are also clear that the intention to return to Canada, however firm, is not enough to establish ongoing residence. The person must also have maintained and not merely intended to be resumed. |
|
In the case of Re Koo (1992) (1993), 1 F.C. 286 at 293 (F.C.T.D.), Madame Justice Reed surveyed the jurisprudence concerning residence and summarized the different formulations for determining whether an appellant was resident in Canada, despite a physical absence:
| The conclusion I draw from the jurisprudence is that the test is whether it can be said that Canada is the place where the applicant "regularly, normally or customarily lives." Another formulation of the same test is whether Canada is the country in which he or she has centralised his or her mode of existence. |
|
Six questions arise as guidance in reaching a conclusion on residency:
| 1. Physical presence in Canada: |
| Approximately five years after arriving in Canada, the appellant left for the first of three trips to China. His absences ranged from 55 to 462 days. In all, he was in Canada 759 days during the application period. |
| 2. Residence of respondent"s immediate family: |
Mr. Zhou is single and his parents are residents of the United States of America.
- . Pattern of physical presence:
| Mr. Zhou rents a basement room in Vancouver and an apartment in Shanghai, China, paid for by his employer. The record shows he maintained his Canadian lodgings while he was away. In a letter dated June 29, 1995, Delco claims to have covered his travel and accommodations expenses in China. Mr. Zhou returned several times to Canada between May 22 to May 30, 1995 to present a work report; from July 24 to August 29, 1995 for his holiday and to present a work report; from June 9 to 22, 1997 for a work report; and from July 13 to August 17, 1997, for a training course. |
- 4. What is the extent of the physical absences?:
- Mr. Zhou was in Canada for 759 days in the last four years. He is short 336 days of the required 1095 days of presence in Canada.
- 5. Absence caused by a temporary situation?:
- Mr. Zhou"s visits to China are clearly for the purpose of conducting business for his employer. He holds the position of Asian Marketing Manager and has been marketing Delco products in China, South Korea and the Philippines, and other Asian countries. He has worked towards establishing a Delco office in China. He claims the business activity and the marketing take a long time to complete.
- 6. Quality of connection with Canada more substantial than with China?:
- Since 1989, Mr. Zhou has rented lodgings in Vancouver, B.C. His record indicates he has kept his room even while he was in China. Mr. Zhou also possesses a social insurance number, a provincial driver's licence, a Canadian bank account and a CIBC credit card.
[8] I am concerned by the question as to whether Mr. Zhou"s job in China is a temporary assignment to set up the China office. The letter from Delco dated June 29, 1995 stating the company covers his travel and accommodations expenses in China suggests that it is a temporary assignment. However, the appellant reports coming from China to Canada in the summer of 1997 for training and to present a work report.
[9] The appellant testified that he has no siblings but was born and raised in Shanghai; that he has derived no income from his job for the past three years and hasn't paid any income tax in Canada. The only remaining mode of living associating him with Canada is a basement room in a Vancouver residence where he has kitchen and bathroom privileges. I am not satisfied that Canada is where he customarily or normally lives; nor have I been convinced that he has centralized his mode of existence in Canada.
[10] The appeal is dismissed.
(Sgd.) "P. Rouleau"
JUDGE
- . FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-2747-97
STYLE OF CAUSE: Jing (James) Zhou
v.
The Minister of Citizenship and Immigration
PLACE OF HEARING: Vancouver, BC
REASONS FOR ORDER OF ROULEAU, J.
dated October 20, 1998
APPEARANCES:
| Mr. G.G. Goldstein for the Appellant |
| Ms. Emilia Péch for the Respondent |
SOLICITORS OF RECORD:
| Mr. G.G. Goldstein for the Appellant |
| Mr. Morris Rosenberg for the Respondent |
Deputy Attorney General
of Canada
__________________
1 Canada (MCI) v. Chan (1998), F.C.J. No. 742, per Rothstein, J.
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