Date: 19990330
Docket: T-570-98
IN THE MATTER OF THE CITIZENSHIP ACT,
R.S.C., 1985, c. C-29
AND IN THE MATTER OF an appeal from the
decision of a Citizenship Judge
AND IN THE MATTER OF
YU LIM TO
Appellant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an appeal of the decision of Pamela Appelt, Citizenship Judge (the "Judge"), dated January 30, 1998. The Judge found that the appellant had failed to meet the requirements of subsections 5(1)(c)(d) and (e) of the Act.
[2] After discussion the respondent has agreed that, given that the appellant is over 60 years of age, the language and knowledge requirements pursuant to subsections 5(1)(d) and (e) of the Act be waived.
[3] The appellant also suggests that the residency requirement as set out in subsection 5(1)(c) of the Citizenship Act are met and the Citizenship Judge did not apply the applicable law.
FACTS
[4] The appellant is from Hong Kong and was granted permanent residence on February 4, 1994. He applied for citizenship on March 14, 1997.
[5] The appellant was absent a total of 954 days f a total of 1,095 days required by the Act.
APPELLANT'S TESTIMONY
[6] The appellant testified through an interpreter and submitted that he moved to Canada in 1994 with his wife and his children.
[7] Previous to this move, he had been a manager of a jewellery business in Hong Kong for 35 years.
[8] He terminated his job before he left Hong Kong, sold his house, and bought a new one in Canada in 1992.
[9] He has renovated this house many times since 1992, and provided different receipts of expenses on that house.
[10] The appellant testified that he tried to find a job in Canada and applied at ten different places without success.
[11] His former employer offered him a consulting job in Hong Kong through a new company that was created by the appellant here in Canada.
[12] The appellant suggests that he has established his mode of living here in Canada. His wife, his family, and all his belongings are in Canada, but he has to get back to Hong Kong for more than 9 months a year to work, and to generate a revenue to sustain his family here in Canada.
[13] His wife, who used to travel with him before this application, is now living on a permanent basis in Canada.
[14] The appellant has filed documentary evidence showing that he is paying income taxes and municipal taxes, here in Canada, even though he has to go to Hong Kong for more than 70% of his time.
[15] The appellant testified that he wants to regularize his situation here in Canada, and also wants to vote.
[16] The appellant also mentioned that he is under contract for the next two years and he will probably return to Canada permanently at the end of that time.
ANALYSIS
[17] In Re Koo (1992), 59 F.T.R. 27 at 31, Madame Justice Reed found that the test for establishing whether or not someone was resident in Canada within the meaning of subsection 5(1)(c) was
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[whether] Canada is the place where the appellant "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. |
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[18] However, in several instances, this Court has held that actual physical presence may not be required where there are exceptional or special circumstances, as was the issue in Re Chiu, (1995), 28 Imm. L.R. (2d) 211, Re Chan, (1995), 28 Imm. L.R. (2d) 203.
[19] In other cases, this Court has held that residence requirements will be fulfilled where there is evidence of ties to Canada, despite physical absences. For example, in Re Hasan (1993), 22 Imm. L.R. (2d) 39, Cullen J. for this Court held that a strict interpretation of the term "physically present" in determining residence ignores current situations, and the frequent necessity to work under contract with an employer outside Canada. Given that the appellant in this case had sufficient ties to Canada to show that it was his home, and that his employment necessitated his long absences, Cullen J. granted the appeal.
[20] Other than the fact that the appellant's wife and children are in Canada, the appellant had few ties to Canada. I refer to Wen-Lung Chen (Spencer) [1998] F.C.J. No. 1578, where Justice Teitelbaum says:
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... Re. John Tiny Min Hui (1994) 24 IMM. L.R. (2d) 8, it is stated in the held, "Canadianization" of permanent residents cannot be accomplished abroad". On page 14, Mr. Justice Muldoon goes on to say, as the purpose for the residency requirement, "it (the Citizenship Act) intends to confer citizenship on appellants who have "Canadianized" themselves by residing among Canadians in Canada. This cannot accomplished abroad. Nor can it be accomplished be [sic] depositing bank accounts, rental payment (or being the owner of a condo) furniture, clothing goods and more importantly, spouses and children - in a word, all except oneself - in Canada while remaining personally outside Canada". |
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[21] I consider that the appellant does not meet any of the criteria established by the Act.
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[22] We agree to waive the language and knowledge requirements of the Act in this case, but we cannot also waive the requirement of residency.
[23] The appellant does not speak either of the two official languages, he does not have a sufficient knowledge of Canada, and he spends most of his time outside Canada.
[24] The appellant has mentioned that he will return permanently to Canada in two years. It will be easier for him after a certain period of time to re-apply for citizenship when he meets all the criteria of the Act.
[25] For the foregoing reasons, this appeal is dismissed.
Pierre Blais
Judge
OTTAWA, ONTARIO
March 30, 1999
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