Canada (Minister of Citizenship and Immigration) v. Hau, docket T-249-99

Date: 20000523

Docket: T-249-99

Ottawa, Ontario, this 23rd day of May, 2000

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O"KEEFE

BETWEEN:

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Applicant

- and -

SHU SUN HAU

Respondent

REASONS FOR ORDER AND ORDER

O"KEEFE J.

[1]      This is an appeal pursuant to subsection 14(5) of the Citizenship Act and section 21 of the Federal Court Act by the Minister of Citizenship and Immigration ("applicant") of the decision of Citizenship Judge Robert Somerville dated December 21, 1998 wherein he granted Canadian citizenship to Shu Sun Hau ("respondent").

[2]      The respondent, together with his family, qualified for admission to Canada under the Business Immigration Programme as an entrepreneur. The respondent has fulfilled his obligations under the Business Immigration Programme, operating a Chinese restaurant in Toronto which was staffed by individuals other than the respondent"s family members.

[3]      The respondent obtained permanent residence status in Canada on February 14, 1994. On June 15, 1997, the respondent applied for Canadian citizenship.

[4]      The respondent and his family disposed of their equity in their Hong Kong properties and purchased a home in Thornhill, Ontario, an interest in the Chopstick House restaurant, as well as an interest in an import/export corporation, the head office of which is also in Thornhill.

[5]      The respondent and his wife transferred their settlers effects from Hong Kong to Toronto. The respondent and his wife have also opened corporate and personal bank accounts and have filed income tax returns in Canada. The respondent"s two sons attended school in Ontario.

[6]      The respondent sponsored his elderly, sick mother-in-law to Toronto and her settler"s effects accompanied her to Toronto. The mother-in-law was landed in July, 1997. The respondent and his family also have a relatively large extended family residing in Canada.

[7]      The respondent was absent from Canada for the following periods of time and for the reasons stated:

From Yr/Mo/Day	To Yr/Mo/Day	Destination	Reason	Number of Days Absent
94/09/29	95/01/23	Hong Kong	Disposal of Assets Mother-in-law"s Illness Business	117
95/02/22	95/07/23	Hong Kong Holland Germany	Disposal of Assets Mother-in-law"s Illness Helping Mother-in-law Immigrate to Canada Business	155
95/08/12	96/02/08	Hong Kong U.S.A. Japan Germany Netherlands	Disposal of Assets Helping Mother-in-law Immigrate to Canada Business	184
96/09/01	97/04/28	Hong Kong	Helping Mother-in-law Immigrate to Canada Business	240
			TOTAL	696

[8]      As can be seen from the above chart, care of his mother-in-law, disposal of assets

and business responsibilities were the reasons for the respondent"s absences. The respondent"s mother-in-law was 74 years old when she was diagnosed with cancer and needed the care of a family member until she landed in Canada on July 28, 1997. As well, disposal of assets worth $842,035.00 was required.

[9]      The respondent was also absent due to business duties. In December, 1994, the

respondent incorporated Sun Bon Co. Ltd. in Ontario. On January 2, 1995, Sun Bon Co. Ltd. signed a contract with Acka"s Industrial Co. Ltd. of Hong Kong to be the official agent for North America for the marketing of all its products. As part of his duties, the respondent was required to participate in a number of trade shows in Asia, Europe, North America, South America and Africa. The respondent was also involved in exporting Canadian made agricultural machinery and hand tools to China.

Issue

[10]      Did the respondent satisfy the residency requirement for Canadian citizenship as

stated in paragraph 5(1)(c) of the Citizenship Act?

Law and Analysis

[11]      Section 5(1) of the Citizenship Act states:

5. (1) The Minister shall grant citizenship to any person who (a) makes application for citizenship; (b) is eighteen years of age or over; (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; (d) has an adequate knowledge of one of the official languages of Canada; (e) has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship; and (f) is not under a deportation order and is not the subject of a declaration by the Governor in Council made pursuant to section 20.

5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois_: a) en fait la demande; b) est âgée d'au moins dix-huit ans; 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; d) a une connaissance suffisante de l'une des langues officielles du Canada; e) a une connaissance suffisante du Canada et des responsabilités et avantages conférés par la citoyenneté; f) n'est pas sous le coup d'une mesure d'expulsion et n'est pas visée par une déclaration du gouverneur en conseil faite en application de l'article 20.

[12]      The Citizenship Judge found that the respondent did qualify for Canadian

citizenship. The decision stated, in part:

. . . Although his absences are numerous the interview and attached documents lead me to the conclusion that he has met the residence requirements as per Thurlow. His family, two sons, and mother-in-law are here, he has met business requirements, paid income tax, owns home and finally he was in Canada for 7 months on arrival and 20 months since his last absence in April 1997 . . .

[13]      The applicant has argued that the respondent has not fulfilled the residency

requirements of paragraph 5(1)(c) of the Citizenship Act.

[14]      To begin with, the jurisprudence of this Court has established that "residence" and

"resident" as used in paragraph 5(1)(c) of the Citizenship Act are not limited to actual presence in Canada. In certain cases, applicants can have a home in Canada and be absent from that home for periods of time and still have that time qualify under subsection 5(1) of the Citizenship Act. In Re Wong, (May 8, 1996), Docket T-1085-95, Cullen J. stated at pages 3 - 4:

The leading case concerning residency is Re Papadogiorgakis, [1978] 2 F.C. 208 (T.D.) at 213-214, Associate Chief Justice Thurlow, as he then was, stated:

. . .

It seems to me that the words "residence" and "resident" in paragraph 5(1)(b) of the new Citizenship Act are not as strictly limited to actual presence in Canada throughout the period as they were in the former statute but can include, as well, situations in which the person concerned has a place in Canada which is used by him during the period as a place of abode to a sufficient extent to demonstrate the reality of his residing there during the material period even though he is away from it part of the time. This may not differ much from what is embraced by the exception referred to by the words "(at least usually)" in the reasons of Pratte, J. but in a close case it may be enough to make the difference between success and failure for an applicant.

A person with an established home of his own in which he lives does not cease to be resident there when he leaves it for a temporary purpose whether on business or vacation or even to pursue a course of study. The fact of his family remaining there while he is away may lend support for the conclusion that he has not ceased to reside there. The conclusion may be reached, as well, even though the absence may be more or less lengthy. It is also enhanced if he returns there frequently when the opportunity to do so arises. It is, as Rand, J. appears to me to be saying in the passage I have read, "chiefly a matter of the degree to which a person in mind and fact settles into or maintains or centralizes his ordinary mode of living with its accessories in social relations, interests and conveniences at or in the place in question".

In the case of Re Koo, [1993] 1 F.C. 286 (T.D.) at 293, Madame Justice Reed thoroughly 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 centralized his or her mode of existence.

To ascertain whether an appellant "regularly, normally or customarily lives" in Canada, Her Ladyship also suggested at 293-294 six questions which could be used by the Court as guidance in reaching a conclusion on residency:

(1)      was the individual physically present in Canada for a long period prior to recent absences, which occurred immediately before the application for citizenship;

(2)      where are the applicant"s immediate family and dependents (and extended family) resident?

(3)      does the pattern of physical presence in Canada indicate a returning home or merely visting the country;

(4)      what is the extent of the physical absences - if an applicant is only a few days short of the 1,095-day total it is easier to find deemed residence than if those absences ae [sic] extensive?

(5)      is the physical absence caused by a clearly temporary situation such as employment as a missionary abroad, following a course of study abroad as a student, accepting temporary employment abroad, accompanying a spouse who has accepted temporary employment abroad?

(6)      what is the quality of the connection with Canada: iis it more substantial than that which exists with any other country?

Apart from the Koo "place of living test", the Court has also used four other formulations for determining residency. Under the "reason test", the reason for the appellant"s physical absence from Canada is considered. If the absence was temporary and involuntary in nature " such as caring for a sick relative or attending school abroad " the appeal is usually allowed. Pursuant to the "intention test", the Court must determine whether the appellant has demonstrated the intention to establish and maintain a home in Canada. The Court has also used a "three-part test": the appellant must have established a residence in Canada, maintained a pied-à-terre in Canada, and intended to reside in Canada. Finally, the Court has referred to the "indicia of residency" and the "quality of attachment", nothing that the stricter test, the quality of attachment, is gaining strength.

Justice Cullen further stated at page 6 of the decision:

As my colleague, Noël, J. wrote in Stephen Yu Hung Lai, (F.C.T.D.) T-2258-93:

In cases where physical absence is encountered during a statutory period, proof of continued residence will require evidence as to the temporary nature of the absence, a clear intent to return and the existence of sufficient factual ties with Canada to assert residence in fact during the period . . . where a businessman established Canada as his place of abode by setting up his matrimonial home and family there he is permitted to travel within reason to earn a living.

[15]      When an applicant has extended absences from Canada in the four years

immediately preceding his application for citizenship, it is necessary to look at the reasons for these absences from Canada and to determine whether the applicant "regularly, normally or customarily" lived in Canada.

[16]      For each of the four extended absences from Canada, the respondent has stated

that one of the reasons for the absences had to do with caring for his mother-in-law"s illness or helping her immigrate to Canada. Other reasons were disposal of assets and business. In fact, business was listed as a reason in all of the absences.

[17]      A review of the file indicates that the respondent did the following:

1.      The respondent and his family moved to Canada.

2.      He satisfied the conditions imposed on him under the Business Immigration Programme.

3.      He and his wife purchased a home in Ontario.

4.      His two sons went to school in Ontario.

5.      He sold his Hong Kong assets.

6.      He transferred his settlers" effects to Ontario.

7.      The respondent sponsored his elderly, sick mother-in-law to Canada and her settler"s effects accompanied her to Toronto.

8.      He incorporated a company in Ontario to do business in international markets.

9.      He has opened corporate and personal bank accounts in Canada and pays income tax in Canada.

10.      He obtained his Ontario driver"s licence and his OHIP number.

[18]      From the material provided to me, it is my opinion that the respondent has met the

tests outlined by Madame Justice Reed and reproduced in paragraph 17 of this decision as:

1.      The respondent came to Canada on February 14, 1994 and was in Canada until September 29, 1994 when his first absence in the relevant four year period commenced.

2.      The respondent"s wife and two children lived in Canada except when his wife went to care for her elderly, sick mother.

3.      The respondent treated Canada as his home. His family lived there as did his wife, except when she was away. The respondent has no other residence other than the residence in Canada. His Canadian company exports Canadian made products.

4.      The respondent is short of the 1,095 days required by the Citizenship Act by 574 days. On all of the absences, some of the absence was on account of either helping his ill mother-in-law in her illness (cancer) or in helping her to immigrate to Canada. Also, all but one of the absences was in part to dispose of assets.

5.      The physical absence caused by the illness of his mother-in-law will not be recurring as she immigrated to Canada. I believe it is very reasonable to spend time out of the country to assist an ill family member. The respondent also spent a portion of the absences from Canada for business purposes. This is to be expected when his company"s activities take him to places outside of Canada.

6.      The respondent"s connection is more substantial with Canada than any other country. He has a home and business in Canada. He does not have a residence anywhere else but Canada. His children go to school in Canada and he and his corporation pay Canadian income taxes.

[19]      The above are applications of the facts of this case to the factors listed by

Madame Justice Reed at pages 293-294 of her decision in Re Koo, supra.

[20]      Madame Justice Reed in Re Koo, supra, at page 293 stated:

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 centralized his or her mode of existence.

[21]      I am of the opinion that the respondent meets the test stated by Madame Justice

Reed.

[22]      It is my decision that the decision of the Citizenship Judge should be upheld as it

was a correct decision. The respondent, in my opinion, has established a residence in Canada by virtue of a centralized mode of living in Canada in the four years preceding his application for citizenship.

[23]      Although I have found that the Citizenship Judge was correct, it may well be that

in light of the decisions in Canada (Director of Investigation and Research) v. Southam Inc. [1997] 1 S.C.R. 748 and in Pushpanathan v. Canada (Minister of Citizenship and Immigration) [1998] 1 S.C.R. 982, the standard of review may be more deferential than correctness but it is not necessary that I make this finding in this case.

[24]      I am of the further opinion that the respondent"s absences from Canada were

special, temporary purposes and that his business trips were for the purpose of carrying on business of his company. As such, these absences should count for the necessary three years of residence in Canada within the four years immediately preceding the date of his application for citizenship.

[25]      I therefore conclude that the respondent"s application meets the residence

requirements of paragraph 5(1)(c) of the Citizenship Act.

[26]      The appeal is therefore denied.

ORDER

[27]      IT IS ORDERED that the appeal is denied.

    

     J.F.C.C.

Ottawa, Ontario

May 23, 2000