Canada (Minister of Citizenship and Immigration) v. Wong, docket T-1389-98

Date: 19990618

Docket: T-1389-98

BETWEEN:

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

THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Appellant,

- and -

CHI KIN WONG,

     Respondent.

     REASONS FOR JUDGMENT

TEITELBAUM J.

[1]      This is an appeal under subsection 14(5) of the Citizenship Act (a request for judicial review) by the Minister of a decision of a Citizenship Court Judge, Ms. Ford, dated May 14, 1998, whereby the Citizenship Judge granted the respondent Chi Kin Wong his Canadian citizenship. The decision of the Citizenship Judge states

Although he (Mr. Wong) has been out of the country for 958 days, his business requires him to travel in Asia. He has provided evidence of permanent residence in Canada and his wife and daughter are Canadian citizens.

[2]      I believe that the statement by counsel that the said decision "is not a model of clarity" correctly describes Ms. Ford's decision.

[3]      In any event, the issue of this judicial review is to determine whether the Citizenship Judge erred in law when she allowed the respondent's Citizenship application, notwithstanding that the respondent was only physically present in Canada for 137 days of at least three years of residence in Canada.

[4]      According to the Appellant, the respondent required a further 958 days residence in Canada to qualify for citizenship.

     Facts

[5]      On February 5, 1994, the respondent was landed as a permanent resident in Canada, along with his wife. Prior to being landed in Canada, the respondent and his family purchased a home in Richmond, British Columbia in September 1993 where he and his family resided to the date of his application for citizenship on July 5, 1997.

[6]      As counsel for the respondent states, "[t]his was the home where the respondent left his wife and child when he was physically outside Canada".

[7]      From the outset of coming to Canada, to the time of the respondent's citizenship application, the respondent spent a great deal of his time absent from Canada because of his business.

[8]      In fact, according to the respondent, he states, in his citizenship application that between February 24, 1994 to May 30, 1997, he was absent from Canada 1079 days. The respondent listed his absences from Canada during this period as follows¹:

From (Y/M/D)	To (Y/M/D)	Destination	Reason	# of Days Absent
94"02"25	94"03"31	Hong Kong	Business	33
94"04"09	94"06"10	Hong Kong	Business	61
94"06"18	94"10"07	Hong Kong, China	Business	120
94"10"15	94"12"23	Hong Kong	Business	68
95"01"01	95"01"27	Hong Kong	Business	25
95"02"05	95"04"13	Hong Kong	Business	66
95"04"18	95"04"18	U.S.A.	Sightsee	1
95"04"22	95"10"22	Hong Kong, China, Vietnam	Business	182
95"10"31	96"02"12	Hong Kong, China	Business	103
96"02"29	96"04"03	Hong Kong	Business	33
96"04"13	96"10"18	Hong Kong, China, Thailand	Business	181
96"10"28	97"02"04	Hong Kong, China	Business	98
97"02"16	97"05"30	Hong Kong, Korea, Japan	Business	102 _______ 1079

[9]      It is, I believe, important to note that the respondent first left Canada three weeks after he arrived. Thus, I am satisfied, he was unable, in the said three week period, unable to establish any connection to Canada.

[10]      When the respondent left Canada for business purposes, he lived in the house where the respondent had previously lived with his wife in Hong Kong. The evidence is that he still owns the said home and lives in the home when the respondent is not physically in Canada.

[11]      The respondent was physically in Canada for approximately 137 days in the four years immediately preceding the date of his application.

[12]      The respondent submits that he did not "fall short" of the minimum requirement of at least three years "residence" in Canada as, according to the respondent, he may not have been physically present in Canada but, because of where his wife and child live and were physically present and where "they had jointly established their home" in Canada, the respondent did fulfil the residency requirement.

[13]      In addition, the respondent submits that, in order to establish residency, he obtained a Social Insurance card, a B.C. Care card and a Royal Bank of Canada card. He also pays Canadian and British Columbia income tax, in 1994, he showed an income of approximately $105,000.

     Test to be applied

[14]      I am satisfied that what Mr. Justice Rouleau states in the case of The Minister of Citizenship and Immigration v. Hin Keung Hung² is the test to be applied in the judicial review application before me.

[9]      Under s. 18.1(4) of the Federal Court Act, pursuant to an application for judicial review, the Trial Division may grant relief to a party if (a) the tribunal exceeded its jurisdiction or refused to exercise its jurisdiction, (b) breached a principle of natural justice, (c) erred in law, or (d) based its decision on an erroneous finding of fact made in a perverse or capricious manner.

[10]      Courts will almost never review findings of fact made by adjudicative decision-makers by the correctness standard. The decision-maker is often in a better position to determine issues of fact and credibility, having heard and seen the witnesses first-hand. However, if a tribunal completely ignores important evidence without explanation, its decision may be set aside.

[11]      Section 18.1(1)(d) essentially codifies the way the courts have viewed findings of fact made by administrative tribunals. In Kibale v. Transport Canada (1988), 90 N.R. 1 (F.C.A.) at 4, leave to S.C.C. refused (1989), 101 N.R. 238 (S.C.C.), Pratte J.A. stated that "even if the court is convinced that a decision is based on an erroneous finding of fact, it cannot intervene unless it is also of the opinion that the lower court, in making its finding, acted in a perverse or capricious manner, or without regard for the evidence." Not only must the finding of fact be perverse or capricious or without regard to the evidence before the adjudicator, this court must make such a finding if it is to interfere pursuant to s. 18.1(4)(d).

     Discussion

[15]      After reviewing the facts of this case and the evidence that was before the Citizenship Judge, I am satisfied the Citizenship Judge erred in law when she concluded that the respondent provided evidence of permanent residence in Canada.

[16]      In reading the decision of the Citizenship Judge, it appears to me that she was satisfied that the respondent had satisfied the residency requirement because "his wife and daughter are Canadian Citizens".

[17]      The Citizenship Act requires a citizenship applicant to take up residence for three years of four before applying for citizenship. Why? If it is possible to be considered a "resident" and not be physically in Canada, as many citizenship applicants appear to believe, then why have a three year residency requirement?

[18]      I have said many times, it is my opinion that a three year residency requirement is to enable an applicant to learn and know what a wonderful and special country Canada is. It is to learn about and "feel" what it is to be a Canadian. One does not simply obtain residency by coming into Canada, buying a house, leaving a wife and child in the house or obtain a Care card or a bank card or a Social Insurance card.

[19]      I agree with the statement of Mr. Justice Joyal in the case of Re Man Yick Chung³.

Way back in 1978, in Re. Papadogiorgakis4, this Court ruled that the residency requirement in the Act does not necessarily impose physical presence for three years. The case held that absences for business purposes, to attend school, to work offshore for a Canadian enterprise, or to wind up a deceased's estate, all of these are of a nature to constitute the kind of constructive residency capable of satisfying the three-year rule, insofar as there is evidence throughout of an obvious intention by the immigrant of returning to Canada and of it having effectively become his or her new country of residence.

The application of the constructive residency doctrine must of course be on a case by case basis, and there is a risk of negating the will of Parliament if it be applied too far. My colleague Muldoon J. had strong words in this respect in the case of Re. Hui5, where he castigated the Court for being far too generous in its application of Re. Papadogiorgakis. I agree with him that care must be taken, particularly in the scrutinizing of indicia of residence in Canada such as credit cards, driver's licence, bank accounts, health card and social insurance card. Although all of these indicia are indicative of residency, none of them are individually or collectively conclusive.

[20]      Clearly the present respondent has shown no evidence, other than his 1994 income tax return, that throughout the time frame he had an obvious intention of returning to live in Canada and that Canada effectively became his new country of residence. This becomes more obvious from the fact that the respondent retains ownership of the family home in Hong Kong.

[21]      I have said and I say again, one does not buy Canadian citizenship. It must be earned. An applicant must show an interest in being a Canadian. It is more than just being able to obtain a Canadian passport.

[22]      I agree with the statement regarding residency made by Muldoon J. in Re Moa-Song Chang⁶, and in Re John Ting Min Mui⁷.

[23]      I am satisfied that the Citizenship Judge erred in law in concluding that the respondent had satisfied the residency requirements of the Citizenship Act.

[24]      The appeal is allowed. The decision of Citizenship Judge Ford dated May 14, 1998 is set aside.

[25]      The application for citizenship is denied as a result of the respondent failing to establish residency as required by the Citizenship Act.

                             (Sgd.) "Max M. Teitelbaum"

                                 Judge

Vancouver, British Columbia

18 June 1999

     FEDERAL COURT TRIAL DIVISION

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT NO.:              T-1389-98

DATE HEARING:              June 17, 1999

STYLE OF CAUSE:          Re Chi Kin Wong

PLACE OF HEARING:          Vancouver, British Columbia

REASONS FOR ORDER OF TEITELBAUM J.

dated June 18, 1999

APPEARANCES:

Ms. Brenda Carbonell              for the Appellant

     Mr. Darryl Larson                  for the Respondent

Ms. J. Fisher                  amicus curiae

SOLICITORS OF RECORD:

Mr. Morris Rosenberg              for the Appellant

     Deputy Attorney General

     of Canada

Mr. Darryl Larson                  for the Respondent

     Larson Suleman Sohn Boulton

     Vancouver, BC

     Ms. Julie Fisher                  amicus curiae

     Watson, Goepel, Maledy

     Vancouver, BC

__________________

     ¹      Tribunal Record, p. 4.

     ²      T-1345-98, December 21, 1998 (F.C.T.D.) at pp. 3-4.

     ³      T-692-97, December 15, 1997 (F.C.T.D.) at p. 2.

     ⁴      (1978) 2 F.C. 208.

     ⁵      (1994) Imm.L.R. (2d) 8.

     ⁶      T-1183-97 (F.C.T.D.).

     ⁷      (1994), 24 Imm.L.R. (2d) 8 (F.C.T.D.).