Canada (Minister of Citizenship and Immigration) v. Tam, docket T-1711-98

Date: 19991130

Docket: T-1711-98

BETWEEN:

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Applicant

- and -

WAI KEE TAM

Respondent

REASONS FOR ORDER

CULLEN J.

[1]      The applicant appeals, pursuant to subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29, a decision by Citizenship Judge R. Bonisteel, dated July 14, 1998, granting citizenship to Mr. Wai Kee Tam. The applicant seeks an order quashing the decision of the Citizenship Judge. The respondent made no written submissions in respect of this application.

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Facts

[2]      The respondent was born in Hong Kong on May 13, 1964. He first came to Canada on November 25, 1991 as a permanent resident. The respondent subsequently applied for citizenship in an application dated June 4, 1996. Included with this application was an attachment listing the dates on which the respondent had been absent from Canada since first coming to this country. This list included, in part, the following information:

Location of Respondent	Beginning date	End date	Total number of days absent from Canada
China	5, 12, 1991	25, 12, 1992	-
China	7, 2, 1994	15, 2, 1994	8
United Arab Emirates	4, 6, 1995	10 ,11, 1995	159
United Arab Emirates	15, 11, 1995	29, 12, 1995	45
Philippines	30, 12, 1995	4, 1, 1996	6
United Arab Emirates	5, 1, 1996	8, 2, 1996	35
Philippines	9, 2, 1996	15, 2, 1996	7
United Arab Emirates	16, 2, 1996	30, 5, 1996	104

The respondent wrote that his absences were for the purpose of business and totalled 364 days. On a form entitled BASIC RESIDENCE CALCULATION, it appears that the total number of days absent was calculated by a citizenship official to be 568 days. It is noted on the form that this total is 203 days over the maximum number of days allowed abroad during the four years immediately preceding an application for citizenship.

[3]      The respondent also submitted a residence questionnaire explaining that while outside Canada:

" he continued to pay Canadian income tax;

" he continued to maintain a car in Canada and maintain a provincial driver"s licence;

" he continued to maintain life insurance and bank accounts with Canadian companies;

" he continued to maintain membership in Canadian associations;

" he continued to maintain business ties in Canada;

" he continued to rent or own various residences in Canada; and

" his wife continued to reside in Canada.

[4]      The Citizenship Judge considered the respondent"s application for citizenship pursuant to subsection 5(1) of the Citizenship Act (hereinafter the Act). Subsection 5(1) provides:

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;      [...]

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; [...]

[5]      In a decision dated July 14, 1998, the Citizenship Judge approved the respondent"s application. He noted that the respondent was short of the minimum number of days required to be resident in Canada by 203 days. He determined, however, that, pursuant to Re: Papadogiorgakis , [1978] 2 F.C. 208 (hereinafter Re: Papadogiorgakis), the respondent nevertheless satisfied the residency requirements of paragraph 5(1)(c) of the Act.

Legal Issues

[6]      The applicant brings this appeal pursuant to subsection 14(5) of the Act. Subsection 14(5) provides:

14. (5) The Minister or the applicant may appeal to the Court from the decision of the citizenship judge under subsection (2) by filing a notice of appeal in the Registry of the Court within sixty days after the day on which      (a) the citizenship judge approved the application under subsection (2); or      (b) notice was mailed or otherwise given under subsection (3) with respect to the application.

14. (5) Le ministre et le demandeur peuvent interjeter appel de la décision du juge de la citoyenneté en déposant un avis d'appel au greffe de la Cour dans les soixante jours suivant la date, selon le cas_:      a) de l'approbation de la demande;      b) de la communication, par courrier ou tout autre moyen, de la décision de rejet.

[7]      The applicant submits that the respondent has not satisfied the residency requirements contained in paragraph 5(1)(c) of the Act. In this respect, the applicant first disputes the definition of residency used by the Citizenship judge. Second, the applicant submits that the Citizenship Judge erred in finding that residency was established by the respondent while living in Canada. Third, the applicant submits that the Citizenship judge erred in finding that the respondent maintained the requisite centralized mode of existence in Canada while aborad.

[8]      The phrase "residence in Canada", as used in paragraph 5(1)(c), is not defined in the Act. The applicant submits, nevertheless, that the phrase should be interpreted to mean the physical presence of an individual in Canada. It submits that this interpretation is supported by the wording of subsection 5(1.1) of the Act. Subsection 5(1.1) deems one to be resident in Canada in certain circumstances despite that one is physically located outside of the country. The implication, it is submitted, is that residence ordinarily requires one to be present in Canada in order to be considered as resident. Subsection 5(1.1) provides:

5. (1.1) Any day during which an applicant for citizenship resided with the applicant's spouse who at the time was a Canadian citizen and was employed outside of Canada in or with the Canadian armed forces or the public service of Canada or of a province, otherwise than as a locally engaged person, shall be treated as equivalent to one day of residence in Canada for the purposes of paragraph (1)(c) and subsection 11(1).

5. (1.1) Est assimilé à un jour de résidence au Canada pour l'application de l'alinéa (1)c) et du paragraphe 11(1) tout jour pendant lequel l'auteur d'une demande de citoyenneté a résidé avec son conjoint alors que celui-ci était citoyen et était, sans avoir été engagé sur place, au service, à l'étranger, des forces armées canadiennes ou de l'administration publique fédérale ou de celle d'une province.

[9]      The applicant also submits that section 21 of the Act, which contains another exception to the definition of residence, also implies that the concept of residence is based one"s physical presence in Canada. Section 21 provides:

21. Notwithstanding anything in this Act, no period may be counted as a period of residence for the purpose of this Act during which a person has been, pursuant to any enactment in force in Canada, (a) under a probation order; (b) a paroled inmate; or (c) confined in or been an inmate of any penitentiary, jail, reformatory or prison.

21. Malgré les autres dispositions de la présente loi, ne sont pas prises en compte pour la durée de résidence les périodes où, en application d'une disposition législative en vigueur au Canada, l'intéressé_: a) a été sous le coup d'une ordonnance de probation; b) a bénéficié d'une libération conditionnelle; c) a été détenu dans un pénitencier, une prison ou une maison de correction.

[10]      The applicant also submits that the purpose of the Act infers that the concept of residency is based on one"s physical presence in Canada. The applicant does not submit any evidence of the Act"s purpose but does cite Muldoon J."s comments, in Re: Pourghasemi (T-80-92, March 11, 1993) (hereinafter Re: Pourghasemi), concerning the purpose of paragraph 5(1)(c). Muldoon J. wrote:

It is clear that the purpose of paragraph 5(1)(c) is 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".

Muldoon J. also wrote:

So those who would throw in their lot with Canadians by becoming citizens must first throw in their lot with Canadians by residing among Canadians, in Canada, during three of the preceding four years, in order to Canadianize themselves.    It is not something one can do while abroad, for Canadian life and society exist only in Canada and nowhere else.

The applicant also cites the reasoning of Pinard J. in Re: Chow (T-2629-95, January 6, 1997) (hereinafter Re: Chow) in support of its assertion that residency is based on one"s physical presence in Canada.

[11]      The applicant is correct in its assertion that residency requires that one be physically present in Canada. Decisions from this Court, however, have shown that there can exist a limited form of constructive, or deemed, residency in certain circumstances. Re: Papadogiorgakis, supra and Re: Koo, [1993] 1 F.C. 286 are only two examples. There is, therefore, no one definition or description of the concept of residency which can be inferred either from subsection 5(1.1) or from section 21 of the Act. Neither can the reasons of Muldoon J. in Re: Pourghasemi, supra be considered the final word on how residency is to be defined.

[12]      This Court notes that a decision of a Citizenship judge is not to be set aside simply because one party does not agree with the test that has been applied to determine residency. Lutfy J., in Lam v. Canada (Minister of Citizenship and Immigration) (T-1310-98; March 26,1999), wrote:

However, where citizenship judges, in clear reasons which demonstrate an understanding of the case law, properly decide that the facts satisfy their view of the statutory test in paragraph 5(1)(c), the reviewing judges ought not to substitute arbitrarily their different opinion of the residency requirement. It is to this extent that some deference is owed to the special knowledge and experience of the citizenship judge during this period of transition.

The Citizenship judge chose to use the residency test found in Re: Papadogiorgakis, supra. It is not open for this Court, therefore, to adopt the much more strict residency test found in Re: Pourghasemi, supra and in Re: Chow, supra.

[13]      The applicant submits that, whatever test is used, an individual must objectively demonstrate that he has established a residence of his own in Canada. It is submitted that a mere intention to establish such a residence is insufficient for the purposes of determining residency. It is further submitted that the evidence before the Citizenship judge does not show that residency was established by the respondent while living in Scarborough or Vancouver. This Court notes that this final submission raises a question of mixed fact and law; Canada (Minister of Citizenship and Immigration) v. Hung (T-1345-98, December 21, 1998) (hereinafter Hung). As noted in Hung, supra, the appropriate standard of review is, therefore, correctness.

[14]      The applicant is correct in its assertion that residency must have been established in order for an individual to later be deemed resident in Canada while away visiting in foreign countries. This is implied in Re: Papadogiorgakis, supra where Thurlow A.C.J. writes:

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.

[15]      Prior to leaving Canada on the series of business trips during which the Citizenship judge deemed the respondent resident in Canada, the evidence shows that the respondent stayed at his Scarborough address for over a year. A similar length of time was sufficient in Re: Papadogiorgakis, supra to base a finding that residency in Canada had been established. This Court is reluctant, therefore, to conclude that such a finding can be labelled incorrect.

[16]      The applicant submits that an individual must maintain his established residence throughout three of the four years immediately preceding his application for citizenship despite that he may be travelling abroad. It submits that the respondent failed to maintain the requisite centralized mode of existence in Canada while in foreign climes. This Court agrees.

[17]      Thurlow A.C.J. is clear on the need for an individual to maintain a certain presence in Canada before he can be deemed to be residing in Canada while living temporarily outside the country. In Re: Papadogiorgakis, supra he wrote:

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.

     [...]

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".

[18]      The respondent spent almost the entire year immediately preceding his citizenship application tending to a business concern in the United Arab Emirates. His periodic but infrequent returns to Canada usually lasted less than two days. One cannot characterize these returns even as mere visits but, rather, as stopovers made in order to jump from one aeroplane to another, perhaps having gathered his family and a few items from his house. They infer little interest on the part of the respondent in lingering any longer than absolutely necessary in this country.

[19]      The centralized mode of existence which the respondent had established in Canada from early 1993 to the middle of 1995 was broken by his time spent in the United Arab Emirates. This Court is mindful, however, that the respondent amassed, prior to travelling in 1995 and 1996, certain paraphernalia inferring a connection with Canada. There is the respondent"s Canadian insurance, his driver"s licence, auto registration, organization membership, bank accounts and, of course, his income tax payments. These amount, however, to a tenuous connection and do not infer the sort of bond that one would expect between someone about to become a citizen and his Canadian community. The fact that the respondent"s wife continued to live in Canada with other members of his family also does little to break the inference drawn from the respondent"s returns that the centre of the respondent"s existence was to be found outside Canada during the time in question.

[20]      In determining that the axis of the respondent"s mode of living continued to be in Canada the Citizenship judge erred in respect of the residency requirements under paragraph 5(1)(c) of the Act. There is, however, every indication that the respondent is a hard worker and will, once he has satisfied the residency requirements, make a fine citizen. The respondent will simply have to wait a little longer before he can enjoy the benefits of that citizenship.

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Conclusion

[21]      For the foregoing reasons, this appeal will be allowed and the decision of the Citizenship judge dated July 14, 1998 will be quashed on the ground that at the time the respondent applied for Canadian citizenship, he did not meet the residency requirement of paragraph 5(1)(c) of the Act.

Ontario, Ontario

December 1, 1999

B. Cullen      J.F.C.C.