Date: 19990409
Docket: T-1617-98
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
CHING SONG LU
Respondent
REASONS FOR ORDER
GIBSON J.:
[1] These reasons arise out of an appeal by the applicant, pursuant to subsection 14(5) of the Citizenship Act1 and Rule 300(c) of the Federal Court Rules, 19982, of a decision of a Citizenship Judge wherein the Judge found that the respondent fully met the residency requirement of paragraph 5(1)(c) of the Citizenship Act, together with all other requirements of that Act for a grant of citizenship. The decision of the Citizenship Judge is dated the 17th of June, 1998.
[2] The learned Citizenship Judge wrote:
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Applicant came to Canada from Taiwan in 1991. Granted he has been absent on business for considerable time but his business was cosmetics in Taiwan and he set up a cosmetics company in Canada to export to Asia. He manufactures cosmetics ... in Markham and markets the products in the general Asia area. He has indeed since 1991 established and maintained a centrality of living in Canada and his wife and two daughters became citizens over a year ago. Mr. Lu is a very dedicated and sincere man who would rather be with his family in Canada but must travel to build up his business in Asia. His company is Canadian and the manufacturing of the product employs 10 people in Markham. After a rather long interview with Mr. Lu I am convinced that he is deserving of consideration for citizenship in spite of the amount of time he has been out of Canada. |
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The Citizenship Judge concludes with a reference to "... the framework outlined by Associate Chief Justice Thurlow... in Papadogiorgakis..."3. In that decision, Associate Chief Justice Thurlow, as he then was, wrote at page 214:
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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". |
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[3] The respondent was born in Taiwan in March of 1945 and, prior to coming to Canada, was employed in a cosmetics business in Taiwan. He acquired landed status in Canada, together with his wife and two children, on the 10th of August, 1991. He remained in Canada for some 18 months, until February 1993. In that 18-month period, he and his wife acquired a home, two automobiles and other "passive" indicia of residence. As indicated in the quotation from the decision of the Citizenship Judge, he established a cosmetics business although it would appear from the record that was before the Citizenship Judge that the manufacture of cosmetics was done by others not by the respondent's corporation.
[4] The respondent applied for Canadian citizenship on the 12th of February, 1997. In the four years preceding the date of his application, the respondent was absent from Canada for the greater part of his time, leaving him 910 days short of the required 1,095 days provided in paragraph 5(1)(c) of the Citizenship Act. The material before the Citizenship Judge indicates that the respondent's absences were all in Asia, primarily in Taiwan, for the purpose of developing markets for his business, assisting agents of his business, signing purchase contracts and maintaining good relations.
[5] The respondent filed no affidavit with the Court. Thus, the only material properly before me on this appeal was the applicant's application record and the record that was before the Citizenship Judge. The respondent represented himself and provided no additional information on which I could reasonably rely. His sole explanation before me for wishing to have Canadian citizenship was to facilitate his international travel on business.
[6] Against the test in Papadogiorgakis cited above, I am satisfied that the learned Citizenship Judge erred in concluding as he did. The material that was before the Citizenship Judge simply does not support a conclusion that the respondent had in mind and fact settled into or maintained or centralized his ordinary mode of living with its accessories and social relations, interests and conveniences at or in Canada. The material provides no basis for a conclusion that the respondent had, on the date of his application for citizenship, in any way integrated himself into Canadian society. While he and his wife had purchased an expensive home and two automobiles, that of itself is insufficient evidence of centralization of his mode of living. Income tax information provided by the applicant indicates that his income from the business he established in Canada in the taxation year of 1992 to 1996 varied from a high of $33,000 in 1992 to a low of $9,000 in 1996, amounts that were clearly insufficient to support he and his family in the home in which they were living. With income in such amounts, it is difficult if not impossible to conclude that the respondent's Canadian business justified, and could support, the amount of time that he purported to spend outside Canada in pursuit of the interests of that business.
[7] On the basis of the foregoing, I conclude that the Citizenship Judge erred in a reviewable manner in concluding that the respondent fulfilled the residency requirement of paragraph 5(1)(c) of the Citizenship Act. In the result, this appeal will be allowed and the decision of the Citizenship Judge quashed.
"Frederick E. Gibson"
Judge
TORONTO, ONTARIO
April 9, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-1617-98
| STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: WEDNESDAY, APRIL 7, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: GIBSON J.
DATED: FRIDAY, APRIL 9, 1999
APPEARANCES: Ms. Marissa Bielski
For the Applicant
Mr. Ching Song Lu
For the Respondent
SOLICITORS OF RECORD: Morris Rosenberg
Deputy Attorney General
of Canada
For the Applicant
20 Higginson Street
Markham, Ontario
L3P 5P3
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990409
Docket: T-1617-98
Between:
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
Applicant
Respondent
REASONS FOR ORDER
__________________
1 R.S.C. 1985, c. C-29.
2 SOR/98-106.
3 [1978] 2 F.C. 208 (F.C.T.D.).
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