Chan v. Canada (Minister of Citizenship and Immigration), 2002 FCT 57

                                                                                                                                             Date: 20020118

                                                                                                                                  Docket: IMM-1823-01

                                                                                                                     Neutral Citation: 2002 FCT 57

Between:

                                                 LAI TONG CHAN and

                                                    MIU KWAN CHU

                                                                                                                     Applicants

                                                              - and -

                                       THE MINISTER OF CITIZENSHIP

                                                  AND IMMIGRATION

                                                                                                                    Respondent

                                                REASONS FOR ORDER

PINARD J.:

[1]         The applicants, who are citizens of Hong Kong, seek judicial review of a decision of the Appeal Division of the Immigration and Refugee Board (the "Appeal Division"), dated February 15, 2001, determinating them to have ceased to be permanent residents of Canada pursuant to paragraph 24(1)(a) and subsection 24(2) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act").

[2]         By a decision dated August 23, 2000, the Immigration and Refugee Board (Adjudication Division) held that the applicants had the intention of abandoning Canada as their place of residence as they had been outside Canada for more than 183 days in the last 12 month period. Therefore, the applicants ceased to be permanent residents under paragraph 24(1)(a) and subsection 24(2) of the Act. The applicants were found to be inadmissible to Canada under paragraph 19(2)(d) as they did not comply with the requirement under subsection 9(1) and an exclusion order was made against them. The applicants appealed this decision to the Appeal Division which determined the applicants to have abandoned Canada as their place of permanent residence for the following reasons:

-           The appellants have failed to establish a physical presence in Canada since the time they were granted landing.

-           The appellants may wish to reside here at some point in the future, or perhaps they wish to keep open the option of being able to reside here in the future, but they have failed to establish a clear intent on their part to actually reside, rather than visit, in Canada.

-           The actions of the appellants demonstrate that they are actually settled in Hong Kong, and their ongoing connection to Canada remains little more than the monetary investment they made in a home here which gained them permanent residence status in the first place.

[3]         Judicial review of that decision is the matter at hand.

[4]         Paragraph 24(1)(a) and subsection 24(2) of the Act read:

[5]         It is not disputed that subsection 24(2) applies to the case at bar. Therefore, the onus was upon the applicants to satisfy the Appeal Division that in spite of their long physical absence, they did not intend to abandon Canada as their place of permanent residence.

[6]         The standard of review on an application such as this is a relatively high one, therefore this Court will thus not intervene lightly in the findings of the Appeal Division. The Supreme Court of Canada considered the question of the standard of review of the Appeal Division in [1974] S.C.R. 875">Boulis v. Minister of Manpower and Immigration, [1974] S.C.R. 875, where Justice Abbott quotes Lord Macmillan in D. R. Fraser and Co. Ltd. v. Minister of National Revenue, [1949] A.C. 24 at 36:

The criteria by which the exercise of a statutory discretion must be judged have been defined in many authoritative cases, and it is well settled that if the discretion has been exercised bona fide, uninfluenced by irrelevant considerations and not arbitrarily or illegally, no court is entitled to interfere even if the court, had the discretion been theirs, might have exercised it otherwise.

[7]         Here, having abandoned their arguments concerning duty of fairness and impartiality, the applicants argue only that the Appeal Division concluded that they had abandoned Canada as their permanent residence based solely on the factor of their physical presence in Canada. It is my view that this is not the case here as the Appeal Division based its decision on clear case law relating to the applicable sections of the Act as well as on the whole of the evidence and facts before it.

[8]         The Appeal Division began its analysis by properly establishing the correct test to determine if an applicant has indeed "abandoned" his or her residence:

It has generally been accepted, as is evidenced by case law⁴ that there are two components to paragraph 24(1)(a) and subsection 24(2) of the Act: physical absence from Canada, and the intent to abandon Canada as the place of permanent residence.

____________________

⁴                 Adams v. Canada (M.E.I.) (October 3, 1978), Doc. 78-9455 (Imm. App. Bd.). Re: Roberts (1978), 92 DLR (3d) 76 (F.C.T.D.), a citizenship case within which permanent residency in relation to section 24 of the Immigration Act is discussed; Minister of Employment and Immigration v. Brendan Leeson Selby [1981] 1 F.C. 273, Action No. A-593-79, Federal Court of Appeal, Thurlow, D.J., Addy J. and Kerr D.J.

[9]         The Appeal Division's analysis clearly includes the consideration of these two elements. With respect to the component of physical absence from Canada, the following factors were considered: the applicants have only visited Canada for brief periods, they have invested in a house that remains largely vacant, they do not have ongoing employment in Canada, nor have they made an apparent effort to seek employment here and their employment and families are in Hong Kong and China, where they seem to be living their lives.

[10]       As for intent, the Appeal Division makes it clear that this element is "central" to the operation of section 24. During the interview, the applicants only voiced a vague intention to spend more time in Canada in the future, however, they did not express concrete plans to do so. As well, it was expressed by Ms. Chu that she may continue running her father's business after his death. Furthermore, the fact that Ms. Chu's father had been ill prior to their application for permanent residence in Canada suggests that the applicants knew that they would be spending the majority of their time outside of Canada when applying for permanent residence.

[11]       It is my impression that the Appeal Division not only applied and interpreted the test correctly, but did so in an objective manner. The Appeal Division takes into account the possibility for individuals with permanent resident status to remain outside of Canada for extended periods of time, without having formed the intent to abandon Canada as their place of permanent residence and also enumerates a series of case law related to this issue. After reviewing these cases, the transcripts as well as the arguments of both parties, I must conclude that the evidence does not demonstrate two individuals who have an explanation for living elsewhere for a lengthy period of time, have maintained personal or professional connections or manifested a desire to return and actually have returned to Canada as quickly as circumstances allowed.

[12]       In light of the evidence, I find it was reasonable to conclude that the applicants had failed to establish that, in spite of their long absence from Canada, they did not intend to abandon Canada as their place of permanent residence.

[13]       Consequently, the application for judicial review is dismissed.

       JUDGE

OTTAWA, ONTARIO

January 18, 2002