Canada (Minister of Citizenship and Immigration) v. Lin-Hsieh, docket T-1140-98

Date: 19990527

Docket: T-1140-98

BETWEEN:

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION,

     Appellant,

     - and -

     ENG FENG JENNY LIN-HSIEH,

     Respondent.

     REASONS FOR ORDER

RICHARD A.C.J.

[1]      This is an appeal brought pursuant to subsection 14(5) of the Citizenship Act and section 21 of the Federal Court Act, on behalf of the Minister of Citizenship and Immigration, from the decision of Citizenship Judge Van Roggen, dated April 7, 1998, approving the application of Eng Feng Jenny Lin-Hsieh (the "respondent") for a grant of Canadian citizenship under subsection 5(1) of the Citizenship Act.

[2]      By her decision of April 7, 1998, the Citizenship Judge decided that the respondent had met the residency requirement of paragraph 5(1)(c) of the Citizenship Act, despite the fact that the respondent had been physically present in Canada for only 433 days and fell short of the minimum requirement of at least three years residence in Canada within the four years immediately preceding the date of her application for Canadian citizenship by 567 days.

[3]      The following evidence was before the Citizenship Judge:

(a)      The respondent, a citizen of Taiwan, was born in Taiwan on January 15, 1952;

(b)      The respondent acquired permanent residence status in Canada on September 20, 1994;

(c)      On September 23, 1997, the respondent completed an adult application for Canadian citizenship which was received by the Citizenship Case Processing Centre (C.P.C.) in Sydney, Nova Scotia, on October 2, 1997;

(d)      According to the information provided by the respondent, she was only physically present in Canada during the relevant period for a total of 433 days preceding her application for Canadian citizenship.

(e)      In support of her application for Canadian citizenship, the respondent completed a Residence Questionnaire on April 1, 1998. In addition, she submitted various other documents, including her:

"      Record of Landing;

"      passport;

"      photocopies of her Social Insurance card, B.C. Care Card and Hongkong Bank of Canada card;

"      Individual Income Tax Return for 1995 and Statement of Account from TD Bank;

"      1997 & 1998 Property Assessment, Statement of Municipal Taxes, State of Title Certificate for 2477 Berton Place, North Vancouver; and

"      Business Licence for LuLu Enterprises.

[4]      Paragraph 5(1)(c) of the Citizenship Act sets out three criteria that must be satisfied by all applicants for Canadian citizenship. The three criteria are:

(a)      lawful admission to Canada as a permanent resident;

(b)      retention of permanent residence status; and

(c)      the accumulation of at least three years of residence in Canada, within the four years immediately preceding the date of the application, as calculated under the prescribed formula set out under the paragraph.

[5]      The first two criteria are not at issue in this case.

[6]      With respect to the third criterion requiring a period of residence in Canada, the word "residence" is not specifically defined in subsection 2(1) of the Citizenship Act.

[7]      Recent jurisprudence of this Court has emphasized the need for substantial physical presence in Canada. As stated by Mr. Justice Pinard in Re Chow¹:

There is jurisprudence which does not require physical presence of the applicant for citizenship for the entire 1,095 days, when there are special or exceptional circumstances. However, in my view, too long an absence from Canada, albeit temporary, during that minimum period of time, as in the present case, is contrary to the purpose of the residency requirements of the Act. Indeed, the Act already allows a person who has been lawfully admitted to Canada for permanent residence not to reside in Canada during one of the four years immediately preceding the date of that person's application for citizenship.

[8]      In a decision dated March 1, 1999, Mr. Justice Cullen stated²:

More and more Courts are coming around to the opinion expressed by my colleague Muldoon J. in Re Pourghasemi (1993), 19 Imm. L.R. (2d) 259 (F.C.T.D.), ...

It is submitted that notwithstanding the different formulations of the residency test, the existing jurisprudence clearly indicates that an applicant for citizenship must demonstrate by objective facts, first, that they have established a residence of their own in Canada at least three years preceding their application and, second, that they have maintained their established residence throughout that time.

[9]      In this case, the Citizenship Court calculated that the respondent was physically present in Canada for 433 days, a shortage of 567 days in the required three year period.

[10]      Within one month after acquiring permanent residence status in Canada, the respondent was absent from Canada for 36 days. Her longest continuous period of stay in Canada during the three year period was approximately three weeks. There were, during that three year period, 17 separate absences from Canada, all but one for business reasons in Taiwan.

[11]      In her reasons, the Citizenship Judge stated:

Documents and Questionnaire reviewed. The Applicant is helping her husband establish a business in Canada " developing an overseas market and quality control in Taiwan. International Trading Co., " Lulu Enterprise " Canadian based. Once business established Jenny will no longer travel to Asia " children in school " daughter honour student " will attend university in Canada.

[12]      The procedure in citizenship appeals has been changed by the Federal Court Rules, 1998 which came into force on April 25, 1998. Under the former Rules, a citizenship appeal was a trial de novo and there was a distinct set of rules governing its conduct. Under the new Rules, citizenship appeals proceed by way of an application based on the record before the citizenship judge and are governed by the general Rules applicable to applications: Rule 300(c).

[13]      The Citizenship Judge erred in law and misapplied the test of residency by failing to consider that as soon as the respondent arrived in Canada, she undertook numerous trips abroad, namely to Taiwan, without having first established a residence of her own in Canada.

[14]      Accordingly the appeal is allowed and the decision of the Citizenship Judge is set aside.

                                                                                     (Sgd.) "John D. Richard"

                                     A.C.J.

Vancouver, British Columbia

27 May 1999

     FEDERAL COURT TRIAL DIVISION

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT NO.:              T-1140-98

STYLE OF CAUSE:          MINISTER OF CITIZENSHIP AND

                     IMMIGRATION

                     v.

                     ENG FENG JENNY LIN-HSIEH

PLACE OF HEARING:          Vancouver, British

DATE OF HEARING:          May 25, 1999

REASONS FOR JUDGMENT OF RICHARD A.C.J.

dated May 27, 1999

APPEARANCES:

Kim Shane                  for the Applicant

Eng Feng Jenny Lin-Hsieh      on her own behalf

SOLICITORS OF RECORD:

Morris Rosenberg              for the Applicant

     Deputy Attorney General

     of Canada

    

__________________

     ¹      (1997), 40 Imm.L.R. (2d) 308 at 310.

     ²      MCI v. Chung Shun Paul Ho, F.C.T.D. No. T-1683-96, March 1, 1999.