Date: 20030526
Docket: T-992-01
Citation: 2003 FCT 652
Ottawa, Ontario, this 26th day of May, 2003
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
XIANRONG BAN
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Ban and his family moved to Canada from China in March 1997. They have made Toronto their home.
[2] Mr. Ban travels extensively, conducting business in both Canada and China. When he applied for citizenship in March 2000 and was asked to add up how much time he had spent outside Canada since his arrival, it came to 841 days - about three-quarters of the time. Some of his trips were very long. One lasted more than 10 months. Still, the Citizenship Judge approved his application. The Minister has appealed.
I. Issue
[3] There is only one issue in this case - whether Mr. Ban has satisfied the residence requirement set out in s. 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29. It requires an applicant to have accumulated three years of residence in Canada during the four years preceding the application. The term "residence" is undefined and has been interpreted in various ways in judgments of this Court.
[4] As I have explained in the case of Canada (Minister of Citizenship and Immigration) v. Nandre, 2003 FCT 650, released today, where an applicant has failed to show that he or she was actually present in Canada for three years, the Citizenship Judge must consider whether the applicant has nonetheless shown that a strong connection has been made with Canada, to the point that periods of temporary absence can be counted towards the three-year residence requirement. This approach, which I have referred to as the "qualitative test", derives from jurisprudence of this Court: In re Citizenship Act and in re Antonios E. Papadogiorgakis, [1978] 2 F.C. 208 (T.D.) ; Koo (Re), [1993] 1 F.C. 286 (T.D.).
[5] The Citizenship Judge gave quite detailed reasons for approving Mr. Ban's application. He found that Mr. Ban had indeed made a substantial connection with Canada. The Judge noted that Mr. Ban's only home is in Canada, where he co-owns a house with his wife, and that his children are growing up and going to school here. When in China, Mr. Ban stayed with relatives. The Judge concluded that Mr. Ban "qualifies as one whose residence is in Canada and despite absences has maintained a Canadian mode of living and will continue to do so."
[6] These remarks make clear that Mr. Ban has established himself in Canada and, even though he spends a great deal of time elsewhere, he should be considered a Canadian resident.
[7] However, the Act requires more than a demonstration that one has become a Canadian resident. It requires that three years of accumulated residence be shown. In Mr. Ban's case, in order to be credited with three years' residence in Canada, he would have to show that he established his residence here immediately upon his arrival in March 1997 and sustained a strong connection with Canada throughout the ensuing three years, notwithstanding his extensive absences. The evidence does not support that contention.
[8] When Mr. Ban arrived in Canada in March 1997, he only stayed here for 19 days. He then returned to China and spent the next six months there. No doubt his family settled in and established themselves during his absence. Mr. Ban probably did so himself after he returned from that first trip and spent the next six months in Canada. It was during that time period, for example, that their current home was acquired. It would also appear that he sustained his connection with Canada through his family from that point forward. His long distance bills are good evidence of that. But, having reviewed the entire record and considered Mr. Ban's affidavit, I see no evidence that he had actually established his residence in Canada as of March 1997. The only clear step he took in that direction during that first visit to Canada appears to have been the opening of a bank account.
[9] Without supporting evidence or a specific finding by the Citizenship Judge that Mr. Ban became a resident in March 1997, I must allow this appeal.
II. Costs
[10] The hearing of this matter was delayed when Mr. Ban decided to engage counsel rather than represent himself. I granted an adjournment to permit Mr. Ban, through his counsel, an opportunity to file a record and make written submissions. In doing so, I also permitted the parties an opportunity to make submissions on the matter of costs. The applicant asks that I award fixed costs.
[11] I granted the adjournment so that the Court might have the benefit of the respondent's submissions on the relevant law. Under the circumstances, and in light of the outcome of this appeal, I make no special order as to costs.
JUDGMENT
IT IS HEREBY ADJUDGED THAT:
1. The appeal is allowed.
2. No order as to costs.
"James W. O'Reilly
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS OF RECORD
DOCKET: T-992-01
STYLE OF CAUSE: MINISTER OF CITIZENSHIP AND IMMIGRATION
v. XIANRONG BAN
PLACE OF HEARING: TORONTO
DATE OF HEARING: APRIL 29, 2003
REASONS FOR JUDGMENT
AND JUDGMENT BY: THE HONOURABLE MR. JUSTICE O'REILLY
DATED: MAY 26, 2003
APPEARANCES:
Mr. Marcel Larouche FOR THE APPLICANT
Mr. Stephen W. Green FOR THE RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada FOR THE APPLICANT
Green and Spiegel
Barristers and Solicitors
390 Bay St., Suite 2800
Toronto, ON M5H 2Y2 FOR THE RESPONDENT
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