Date: 20010723
Docket: T-1206-00
T-1207-00
Neutral citation: 2001 FCT 796
T-1206-00
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
and
ELAINE KOA LAM
Respondent
T-1207-00
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
and
LEONARD HON WEI
Respondent
REASONS FOR ORDER
Teitelbaum J.
[1] The respondents, Leonard Hon Wei (hereinafter referred to as "Wei") and Elaine Koa Lam (hereinafter referred to as "Lam"), in the present appeal by the Minister of Citizenship and Immigration (hereinafter referred to as the "Minister") are husband and wife.
[2] The present appeal by the Minister was heard on July 10, 2001. Both appeals of the appellant were heard at the same time. Although the parts relating to the absences of Lam and Wei from Canada are different, the present set of reasons shall apply to both files, T-1206-00 (Lam) and T-1207-00 (Wei).
[3] As I have said, this is an appeal by the Minister and it is from a decision rendered by Citizenship Judge Paul Gallagher on May 15, 2000 for both Lam and Wei approving Lam's and Wei's application for Canadian citizenship. The Minister is of the belief that the Citizenship Judge erred in determining that both Lam and Wei had satisfied the residency requirements set out in paragraph 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29, as amended (the "Act").
[4] Both Wei and Lam were, at the time they arrived in Canada and obtained permanent residency status, citizens of the United Kingdom (U.K.). Wei was born in Hong Kong on September 29, 1957 while Lam was born on October 15, 1957 in Hong Kong. Both Wei and Lam came to Canada and were granted permanent resident status on April 3, 1996. On April 20, 1999, a few days after three years from having been granted permanent resident status, both Lam and Wei completed an adult application for Canadian citizenship and which application was received by Citizenship Case Processing Centre on May 25, 1999.
[5] During the period from April 3, 1996 to April 20, 1999, Wei was outside of Canada for 866 days, "meaning that he was physically present [in Canada] for only 246 days in the four years preceding the date of his citizenship application" (page 6, Minister's Application Record). Wei was absent from Canada from April 12, 1996 to May 2, 1996, September 17, 1996 to September 27, 1996, December 13, 1996 to December 20, 1997 (more than one year), January 1, 1998 to February 13, 1999 (again more than one year) and February 23, 1999 to April 20, 1999 when he signed his application for citizenship.
[6] During the period April 3, 1996 to April 20, 1999, Lam was absent from Canada for 1078 days during this period, "meaning that as she arrived in Canada on April 3, 1996, she was physically present [in Canada] for 34 days in the four years preceding the date of her citizenship application" (Minister's Application Record, pages 44 and 45). In fact, Lam was not in Canada when she completed her citizenship application.
[7] I do not have any evidence if either Lam or Wei have come back to physically reside in Canada to the present day. All three of Wei's and Lam's children attend school in Hong Kong. When I inquired of counsel for Wei and Lam, I was informed that he was not aware of where his clients were physically residing nor was he aware if his clients were or were not in Canada at the time of the hearing.
[8] In the case of Lam, by decision dated May 15, 2000, Citizenship Judge Paul Gallagher approved Lam's application for Canadian citizenship notwithstanding the fact that Lam had a shortage of 1061 days of not being physically in Canada, with respect to meeting the requirement of three years of residence in Canada within the four years immediately preceding the date of her application.
[9] On the same date of May 15, 2000, Citizenship Judge Paul Gallagher approved Wei's application for citizenship.
[10] In the Wei decision, the Citizenship Judge states:
This application is approved, despite absences. He has "connection" or "attachment beyond work" only to Canada. His possessions and property are totally in Canada. He has been "North Americanized" but has chosen not to reside in US. He has no connection to HK except as a place to work.
[11] I am satisfied that the statement "He has no connection to H.K. except to work" as perverse. The fact is his wife and children all live in Hong Kong. All three of his children go to school in Hong Kong. There is no evidence that Wei's work in Hong Kong is a temporary situation.
[12] In his decision for Lam, the Citizenship Judge states:
The application is approved despite extended absences. Canada is "home", she has rejected US (which would have been far simpler) and she has chosen not to be a HK / Chinese citizenship [sic]. She is an asset to Canada as well and is "comfortable" in Canada.
[13] With due respect to the Citizenship Judge, I have great difficulty in understanding how the Citizenship Judge was able to conclude that Canada is "home" to Ms. Lam. I could find no jurisprudence nor anything in the Citizenship Act that would indicate that by the mere fact that Ms. Lam rejected US residency, she fulfilled the residency requirement of the Act. The same would apply to the statement "she has chosen not to be a HK / Chinese citizenship [sic]". Ms. Lam is a United Kingdom citizen. I, as well, cannot see on what basis the Citizenship Judge determined Ms. Lam "is an asset to Canada as well and is ‘comfortable' in Canada". Ms. Lam has only spent 34 days in Canada. How, in this short period of time in Canada, can it be determined she is an "asset" to Canada or that she is "comfortable" in Canada. There is no evidence to indicate that Ms. Lam has done anything of consequence in Canada, other than obtain permanent residency and remain for 34 days. She even sends her children to an International School in Hong Kong.
[14] I am satisfied that the standard of review to be applied in such an appeal
before me is that of correctness "with no particular deference accorded to the Citizenship Judge" (see The Minister of Citizenship and Immigration v. Michael Tsao Jen Lu, T-1205-00, Neutral Citation 2001 FCT 640 dated June 14, 2001, para. 4).
[15] I can do no better than to quote the words of Mr. Justice Pinard in the Tsao Jen Lu case (supra.) as I am in complete agreement with what he states in paragraphs 5, 6 and 7:
[5] The residency requirements of paragraph 5(1)(c) of the Act are the following:
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5. (1) The Minister shall grant citizenship to any person who
[ . . . ]
(c) has been lawfully admitted to Canada for permanent residence, has not ceased since such admission to be a permanent resident pursuant to section 24 of the Immigration Act, and has, within the four years immediately preceding the date of his application, accumulated at least three years of residence in Canada calculated in the following manner:
(i) for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and(ii) for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence;
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5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la foi:
[ . . . ]
c) a été légalement admise au Canada à titre de résident permanent, n'a pas depuis perdu ce titre en application de l'article 24 de la Loi sur l'immigration, et a, dans les quatre ans qui ont précédé la date de sa demande, résidé au Canada pendant au moins trois ans en tout, la durée de sa résidence étant calculée de la manière suivante:
(i) un demi-jour pour chaque jour de résidence au Canada avant son admission à titre de résident permanent;
(ii) un jour pour chaque jour de résidence au Canada après son admission à titre de résident permanent.
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[6] My colleague, Mr. Justice Muldoon, in Re Pourghasemi (1993), 19 Imm.L.R. (2d) 259 at 260 sets out the underlying objectives of this provision of the Act:
. . . 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 (1992), 59 F.T.R. 27, 19 Imm.L.R. (2d) 1], in different factual circumstances, of course.
(See also the following decisions rendered by the Trial Division of the Federal Court of Canada: Re Chow (1997), 40 Imm.L.R. (2d) 308 at 310; M.C.I. v. Li-Te Ho (April 28, 1999), T-1846-98; M.C.I. v. Ka Po Gabriel Liu (January 8, 1999), T-997-98; Re Chang (February 5, 1998), T-1183-97; Re Koo, [1993] 1 F.C. 286; M.C.I. v. Ching Pin Lin (January 6, 1999), T-2803-97; M.C.I. v. Ho (November 24, 1998), T-19-98; M.C.I. v. Lok (March 29, 1999), T-1179-98; Hong Sang Tang v. M.C.I. (June 14, 1999), T-1663-98; M.C.I. v. Fai Sophia Lam (April 28, 1999), T-1524-98 and M.C.I. v. Tara Gupta (April 28,
1999), T-757-98.)
[7] This Court has held that a proper interpretation of paragraph 5(1)(c) of the Act does not require physical presence in Canada for the entire 1,095 days of residence prescribed therein when there are special and exceptional circumstances. I consider, however, that actual presence in Canada remains the most relevant and crucial factor to be taken into account for establishing whether or not a person was "resident" in Canada within the meaning of the provision. As I have stated on many occasions, too long of an absence from Canada, albeit a temporary one, during that minimum period of time is contrary to the spirit of the Act, which already allows a person who has been lawfully admitted to Canada for permanent residence not to reside in Canada during one of the four years immediately preceding the date of that person's application for citizenship.
[16] From the evidence that was before the Citizenship Judge, I am satisfied that he erred in law when he concluded that both Lam and Wei fulfilled the residency requirements of the Act. Mr. Wei's absence, based on the evidence, is not temporary. He is permanently employed in Hong Kong and is living in Hong Kong with his wife, Ms. Lam, and three children. I am satisfied he is physically living in Hong Kong but is legally considered a permanent resident of Canada.
[17] Counsel for Wei made a submission that Mr. Wei pays and has paid substantial sums of money for his Canadian income tax. I believe this to be very commendable. I do wish to state, that, it is a legal obligation for a Canadian permanent resident to pay income tax. This is not a reason, in itself, to be granted Canadian citizenship. One must still fulfill the residency requirement of the Act.
[18] The appeal is allowed and the decision of the Citizenship Judge Paul Gallagher dated May 15, 2000 is quashed on the ground that at the time Lam and Wei applied for Canadian Citizenship, they did not meet the residency requirements of paragraph 5(1)(c) of the Act. The request for Canadian citizenship is denied.
"Max M. Teitelbaum"
JUDGE
Ottawa, Ontario
July 23rd, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1206-00
T-1207-00
STYLE OF CAUSE: The Minister of Citizenship and Immigration v. Elaine Koa Lam
The Minister of Citizenship and Immigration v. Leonard Hon Wei
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: July 10, 2001
REASONS FOR ORDER OF Teitelbaum J.
DATED: July 23rd, 2001
APPEARANCES:
Rama Sood and Pauline Anthoine FOR APPELLANT
J. B. Rotstein FOR RESPONDENTS
SOLICITORS OF RECORD:
Deputy Attorney General of Canada FOR APPELLANT
Vancouver, British Columbia
Chen & Leung FOR RESPONDENTS
Vancouver, British Columbia
Date: 20010723
Docket: T-1207-00
Ottawa, Ontario, Monday, the 23rd day of July, 2001
PRESENT: THE HONOURABLE MR. JUSTICE TEITELBAUM
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
and
LEONARD HON WEI
Respondent
ORDER
For the reasons given in the Reasons for Order, the appeal is allowed. The decision of Citizenship Judge Paul Gallagher dated May 15, 2000 is quashed. The application for citizenship is denied.
"Max M. Teitelbaum"
JUDGE
Date: 20010723
Docket: T-1206-00
Ottawa, Ontario, Monday, the 23rd day of July, 2001
PRESENT:THE HONOURABLE MR. JUSTICE TEITELBAUM
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
and
ELAINE KOA LAM
Respondent
ORDER
For the reasons given in the Reasons for Order, the appeal is allowed. The decision of Citizenship Judge Paul Gallagher dated May 15, 2000 is quashed. The application for citizenship is denied.
"Max M. Teitelbaum"
JUDGE
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