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Date: 19980619 Docket: T-2843-96
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
MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
- AND -
SANG TUNG TIM LOK
Respondent
REASONS FOR JUDGMENT
REED. J.:
[1] This is an appeal by the Minister of Citizenship and Immigration from a decision of a citizenship judge, dated November 11, 1996. That decision approved the application of the respondent for citizenship, pursuant to subsection 5(1) of the Citizenship Act, even
Page: 2 though he was only physically present within Canada for 107 days during the three to
four year period preceding his application for citizenship. Subsection 5(1)(c) requires that a successful applicant for citizenship establish permanent residence in Canada and reside in Canada for three years, that is, 1,095 days out of the four years immediately preceding his or her application for citizenship. The citizenship judge concluded that the respondent's occupation required extensive international business travel and that his situation was within the framework of the jurisprudence established by Thurlow A.C.J. in Re Papadogiorgakis (1978), 2 F.C. 208. That jurisprudence establishes that physical presence within the country is not necessary for all 1,095 days. In some circumstances absence from the country will be deemed to be residence within it.
Applicable Procedural Rules
[2] Before proceeding with the appeal on the merits, the appellant brought a preliminary motion for an order that the new Federal Court Rules, which came into force on April 25, 1998, apply to this appeal and as a result the appeal should be dealt with on the basis of the record alone, without hearing witnesses. Counsel for the appellant invited me to reach a different conclusion from that reached by Mr. Justice Rothstein in Re Chan (T-2842-96, May 25, 1998). I declined to do so. In addition, the particular circumstances of this case make the application of the new Rules to it completely inappropriate.
[3] The hearing of this appeal was originally scheduled for March 17, 1998. On that
Page: 3 date the hearing was adjourned to June 9, 1998. The adjournment order required that by March 23, 1998, the respondent file: a reply to the appellant's case, an index of documents, and a list of the witnesses that he would be calling at the hearing of the appeal. The appellant was ordered to file her Memorandum of Fact and Law by April 8, 1998. The respondent was to file his by May 8, 1998, and the appellant her Reply by May 15, 1998.
[4] As of April 25, 1998, then, not only were the parties operating within the context of an appeal hearing that had been adjourned and in contemplation of a hearing that would involve the calling of witnesses, but the procedural steps prior to the hearing were essentially complete, some of these having been imposed by a Court order that was based on the premise that the respondent would be allowed to call witnesses.
[5] 1 cannot conclude that the new Rules are applicable in these circumstances. The new Rules provide for a different procedure in determining citizenship appeals than that previously existing. The new Rules set out an inter-related series of procedural steps, the time limits for later steps depending upon earlier steps in the process. The new procedure starts with a notice of application that must be served within 10 days after filing and requires, among other matters, that the appellant (applicant) file her supporting affidavits and documentary exhibits within 30 days of the filing of the notice of application. Even if the notice of appeal herein, which was filed on December 23, 1996, is treated as equivalent to a notice of application, all the time periods prescribed
Page: 4
by the new Rule 300 procedure have long since expired.
[6] While the transitional provision in Rule 501(1) provides for the application of the new Rules to an existing proceeding,' the amended Rules are intended to apply prospectively from the date of their coming into force and not to abrogate or replace procedural steps that have already been completed. This provision must also be read in light of the Interpretation Act, R.S.C. 1985, c. I-21, sections 43 and 442 which provide that new provisions apply only in so far as they can be adapted to a proceeding taken under
Rule 501(1)
Subject to subsection (2), these Rules apply to all proceedings, including further steps taken in proceedings that were commenced before the coming into force of these Rules.
2
43. Where an enactment is repealed in whole or in part, the repeal does not
(b) affect the previous operation of the enactment so repealed or anything duly done or suffered thereunder,
(c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed,
(e) affect any investigation, legal proceeding or remedy in respect of any right, privilege, obligation or liability referred to in paragraph (c) .... and an investigation, legal proceeding or remedy as described in paragraph (e) may be instituted, continued or enforced, and the punishment, penalty or forfeiture may be imposed as if the enactment had not been so repealed.
44. Where an enactment, in this section called the "former enactment", is repealed and another enactment, in this section called the "new enactment", is substituted therefor,
(c) every proceeding taken under the former enactment shall be taken up and continued under and in conformity with the new enactment in so far as it may be done consistently with the new enactment;
(d) the procedure established by the new enactment shall be followed as far as it can be adapted thereto
(iii) in a proceeding in relation to matters that have happened before the repeal.
Page: 5 the former enactment. In the present proceeding, as of April 25, 1998, there were no
procedural steps remaining to which the new Rules could sensibly apply. As of that date, the procedure that had been followed by the parties and that ordered by the Court were based on an appeal that has often been described as a de novo hearing. The appeal should proceed on that basis.
Merits of the Appeal
[7] 1 turn then to the facts of the case. The respondent came to Canada with his wife and daughter on January 18, 1993. They came as landed immigrants. The wife and daughter have since obtained Canadian citizenship. He now has a Canadian born son.
[8] The respondent returned to Hong Kong two weeks after his arrival in Canada. Between the date of his landing on January 18, 1993, and his application for citizenship he was present in Canada for 170 days. This total was accumulated by a number of brief stays within the country, the longest being for 21 days.
[9] On their initial arrival in Canada, he, his wife and daughter lived with the respondent's wife's sister at 820 Thistledown Cres., Mississauga. On February 25, 1993, he and his wife purchased a condominium, # 1510, 50 Eglington Ave., Mississauga. His wife and daughter moved into that residence. At that time, as noted, the respondent was not in the country. The wife and daughter, and subsequently his son, lived at that address until January 1996. After this they moved to 4471 Heathgate Cres., Mississauga. This is
Page: 6 the home of a friend who is out of Canada, where they live rent free. The Eglington Avenue condominium is now rented.
[10] The respondent explained his absences from Canada during the first year after he was granted landing by saying that he needed to return to Hong Kong to sell the family residence there, and he needed to develop contacts in order to establish his Canadian business. In April 1994, he incorporated World Force Enterprise Ltd., an Ontario company having two officers, he and his wife, and having two employees, he and his wife. According to the documentation he receives a $32,000.00 annual salary from that company and his wife is not paid. This income is reported on his Canadian income tax returns. It is unclear as to where the rental income from the Eglington Avenue property is being reported; it does not appear on his tax return for the relevant year.
[11] World Force Enterprise Ltd. has no operating office. It does have a business address because it uses a business office facility that provides services such as telephone answering and mail receipt and forwarding. There is no documentation demonstrating business activity by World Force Enterprise Ltd. It is a shell company.
[12] There is evidence that the respondent was working for Whole View (Hong Kong) Ltd., a Hong Kong company engaged in exporting knitwear. The respondent characterized this activity as merely providing consulting advice. He also stated that while Whole View was his only customer at present, he is working to try to obtain
Page: 7 additional customers for World Force Enterprise. The documentation does not support his characterization of his relationships with Whole View and World Force.
[13] Prior to becoming a landed immigrant in Canada he had worked as business development manager for a Hong Kong knitwear firm. This is the area in which his knowledge and experience lies, and it is not surprising that he would find it necessary to remain in that field.
[14] The respondent's evidence was that he had sold his home and furniture in Hong Kong and brought all his assets (e.g., funds invested in GICs) to Canada. When he returns to Hong Kong he stays with his parents. When he travels elsewhere he stays in hotels. I have some difficulty believing his evidence about having disposed of all his Hong Kong property and having brought all his assets to Canada, given what I perceive to be less than candid aspects of other parts of his testimony.
[15] The record shows that he has a car here, bank accounts, credit cards, a driver's licence and an OHIP card. This type of indicia of residence is easy to acquire and in many cases says little about whether or not an established residence really exists. The respondent does not appear to belong to any clubs and evidence concerning social integration into Canadian society is scant. The respondent came as a member of the entrepreneurial class of landed immigrant and invested a substantial amount of money in a Canadian Nova Scotia enterprise.
Page: 8
Ar ments
[16] The "residency test" applicable to subsection 5(1)(c) of the Citizenship Act as established by the jurisprudence has two prongs: (1) an applicant for citizenship must establish a residence of his own in Canada at least three years preceding his application; this requires that he centralize his place of residence in Canada; (2) an applicant must maintain his centralized place of residence in Canada for the requisite period of time to satisfy the 1,095 day residence requirement.
[17] The appellant submits that the evidence before the citizenship judge clearly showed that the respondent did not initially establish residence in Canada three years prior to his application for citizenship, nor did he maintain a centralized mode of living in Canada throughout the relevant time period. It is argued that this follows from the fact that: on initially landing in January 1993, the respondent only stayed in Canada 14 days before returning to Hong Kong for business; there were frequent extended absences from Canada throughout the relevant three year period with only 170 days in total being spent in Canada; prior to the incorporation of his own company the respondent spent 365 days abroad on business and continued to go abroad thereafter; the respondent appears to work for a foreign company Whole View (Hong Kong); the respondent has no fixed residence because as of January 15, 1996, he resides at a house owned by friends; the respondent has paid minimal taxes and reported no income from Whole View (Hong Kong).
Page: 9
[18] The respondent submits that he has met the requirements for residency established by the jurisprudence. The citizenship judge was apprised of all the facts; the decision was reasonable and supported by the evidence. The respondent asserts the following: his return to Hong Kong after landing in 1993 was for the purpose of generating business for his Canadian business; he was neither employed nor paid by Whole View (Hong Kong) thus he reported no income therefrom; he established his residence and maintained a centralized mode of living in Canada and only left for temporary purposes; he continues to own a residence, though he leases it out to reside free of charge at his friend's house.
Citizenship Judge's Decision
[19] I turn then to the citizenship judge's decision. It is clear that it is seriously flawed.
The judge in finding that the respondent had established a centralized mode of living in
Canada, wrote:
I have concluded that the applicant had established a residential base at #1510 - 50 E lington Avenue, Mississauga, Ontario, Canada, and a centralized mode of living in Canada on January 18, 1993 .... [Underlining added.]
[20] The respondent was not living at the Eglington Ave. address on January 18, 1993. He did not move into that address in February when his wife and daughter did so; he was not in the country at the time. While this could be regarded as a technical error if the other evidence supported the respondent's claim, in this case it cannot be so characterized because the evidence does not support his claim.
Page: 10
[21] With respect to the respondent's business activities, the judge wrote:
The applicant is engaged in the sale of garments and other textile products to wholesale establishments on behalf of foreign and domestic manufacturers. His responsibilities as business development manager for World Force Enterprises Ltd., Don Mills, Ontario, require extensive international business travel. [Underlining added.]
This again is not supported by the evidence. The documentary evidence does not support a conclusion that the respondent travelled abroad for World Force. As noted, it is a shell company. The citizenship judge's decision was based on serious errors. I must conclude that the judge simply did not address his mind carefully to the material on the record.
Analysis
[22] I turn then to an analysis of the evidence in relation to the jurisprudence respecting residency. Counsel for the respondent cites those cases that have held that the important factor is the country to which the person returns, not where he or she is physically present at any given time. Counsel refers to Re Huang (1997), 37 Imm.L.R. (2d) 113 where Dub6 J. held that an applicant who has clearly established a home in Canada with the intention of maintaining permanent roots ought not be deprived of citizenship "merely because he has to earn his livelihood and that of his family by doing business offshore". Counsel refers to those cases that have found the residency requirement to be satisfied despite long absences, for example, Re Chun Hon (Tony) Leung, (T-241-97, January 22, 1998) (F.C.T.D.) (762 days short); Re Leung (1997), 41 Imm.L.R. (2d) 66 (916 days short); Re Wing-Kee Francis Chow (T-455-96, April 20, 1998) (F.C.T.D.) (853 days short); Re Felix Ling Chung Wong (T-1850-97, April 23, 1998)
Page: 11 (F.C.T.D.) (722 days short). These decisions must be read, however, in the context of the jurisprudence as a whole.
[23] It has been held that the purpose of the residency requirement is to give the individual an opportunity to Canadianize himself or herself - something that is not possible when the person is out of the country; see Re Pourghasemi (1993), 19 Imm.L.R. (2d) 259. It has been held that Canadianzation cannot be accomplished by "depositing bank accounts, rental payment, furniture, clothing goods and more importantly, spouses and children - in a word, all except oneself - in Canada . . . .", see Re Hui (1994), 75 F.T.R. 81 at 85, and Re Choi (T1637-96, T-1638-96, May 29, 1997). Decisions in which applicants were absent for fewer days than this respondent and who were not granted citizenship were cited: Re Chang (1998), 144 F.T.R. 244 (836 days short); Re Hui (supra) (537 days short); Re Lau (1996), 33 Imm.L.R. (2d) 266 (613 days short); Re Kan (T-582-95, January 3, 1996) (422 days short); Re Chow (T-2629-95, January 6, 1997) (379 days short); Re Lee (1997), 138 F.T.R. 295 (688 days short).
[24] Some factors relevant to the consideration of whether or not an individual has a substantial connection to Canada so that residency can be said to exist despite physical absence were identified in Re Koo (1992), 19 Imm.L.R. (2d) 1. These include: (1) whether there was an extended period of physical presence in Canada prior to the absences from Canada immediately prior to the application; (2) the place of residence of the applicant's immediate and extended family and dependants; (3) whether the pattern
Page: 12 of physical presence indicates that the individual is returning home or visiting; (4) the extent of the physical absences and how far short they are of the 1,095 day requirement; (5) whether the physical absence is caused by a clearly temporary situation including business abroad; (6) whether the quality of the individual's connection to Canada is more or less than that with another country.
[25] Assessing those factors in the context of the evidence in this case: (1) there was no extended physical presence in Canada prior to the respondent's extensive absences, and the respondent was only present in Canada for 14 days before he immediately left; (2) while the respondent's wife and children are here, his parents and brother are in Hong Kong, as are many friends; (3) the pattern of sojourns in Canada does not exhibit a "returning home", and the fact that his family is now living in a friend's house, having rented out their home, is more consonant with an intention to remain in Canada temporarily than it is with the intention to permanently reside here; (4) the respondent's physical absences are extensive; this is not a borderline case; (5) the physical absences cannot be characterized as temporary in nature; his physical absences are occasioned by his work for a Hong Kong company, and the Canadian company he incorporated is a shell; (6) the evidence does not show that the quality of his connection to Canada is greater than that to Hong Kong.
Page: 13 [26] I cannot conclude that the respondent has met the residency requirement. I must therefore grant the appellant's appeal.
8. Read
Judge
OTTAWA, ONTARIO June 19, 1998
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-2843-96
STYLE OF CAUSE: Minister of Citizenship & Immigration v. Sang Tung Tim Lok
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 9, 1998
REASONS FOR JUDGMENT OF MADAME JUSTICE REED
| DATED: June 19, 1998
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| APPEARANCES:
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| A. Leena Jaakkimainen
|
FOR THE APPELLANT
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| Department of Justice
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| Toronto, Ontario
|
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| Robin Seligman
|
FOR THE RESPONDENT
|
| Barrister & Solciitor
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| Toronto, Ontario
|
|
| Peter K. Large
|
AMICUS CURIAE
|
| Barrister & Solciitor
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| Toronto, Ontario
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| SOLICITORS OF RECORD:
|
|
| A. Leena Jaakkimainen
|
FOR THE APPELLANT
|
| Department of Justice
|
|
| Toronto, Ontario
|
|
| Robin Seligman
|
FOR THE RESPONDENT
|
| Barrister & Solciitor
|
|
| Toronto, Ontario
|
|
| Peter K. Large
|
AMICUS CURIAE
|
| Barrister & Solciitor
|
|
| Toronto, Ontario
|
|
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