Date: 1991026
Docket: T-536-99
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
SHEK KIU LUK
Respondent
ORDER AND REASONS FOR ORDER
SHARLOW J.
[1] The Crown has appealed the decision of a Citizenship Judge to approve the citizenship application of Shek Kiu Luk. The Crown argues that Mr. Luk does not meet the residence requirement in paragraph 5(1)(c) of the Citizenship Act.
[2] No one appeared for the Crown at the time and place set for the hearing of his appeal. Mr. Luk did not appear either. Based on material in the court file I am satisfied that both parties were given notice of the hearing in accordance with the Federal Court Rules, 1998. On that basis I have considered the appeal based solely on the Crown's written material and the documents provided by the Citizenship Court. No material was filed by Mr. Luk.
[3] Mr. Luk's application for citizenship was made on November 18, 1997. Pursuant to paragraph 5(1)(c), he would qualify for citizenship if he was resident in Canada for at least three of the four years preceding that date. Thus the relevant four year period was the four year period ending November 18, 1997. During that period, Mr. Luk was physically absent from Canada for 668 days, which represents a shortfall of 533 days. However, the notes of the Citizenship Judge indicate that he found this an appropriate case to apply the principle from In Re Papadogiorgakis, [1978] 2 F.C. 208 (F.C.T.D.).
[4] The only issue, then, is whether the Citizenship Judge erred in law in applying the principle from In Re Papadogiorgakis, [1978] 2 F.C. 208 (F.C.T.D.). In stating the issue in this way I rely on the decision of Lutfy J. in Lam v. Minister of Citizenship and Immigration, Court File T-1310-98, March 26, 1999 (F.C.T.D.), at paragraphs 11 to 14:
| [11] The consideration of the appropriate standard of review also requires an understanding of the conflicting jurisprudence of the Federal Court - Trial Division over the past two decades when Citizenship appeals proceeded by way of trial de novo. Some judges of this Court have adopted the view that the residency requirement in paragraph 5(1)(c) of the Act entails more than a mere counting of days. This view was first enunciated in Papadogiorgakis by Thurlow A.C.J., as he then was, when he stated: |
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| 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. ... |
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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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| The principle in Papadogiorgakis was succinctly stated by Dubé J. in Banerjee, Re: "It is the quality of the attachment to Canada that is to be ascertained." Justice Dubé has more recently reiterated his view in Ho, Re: |
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| As I have stated on many occasions, residency in Canada for the purposes of citizenship does not imply full-time physical presence. The place of residence of a person is not where that person works but where he or she returns to after work. Hence, an applicant for citizenship who has clearly and definitively established a home in Canada with the transparent intention of maintaining permanent roots in this country ought not to be deprived of citizenship merely because he has to earn his livelihood and that of his family by doing business offshore. The most eloquent indicia of residency is the permanent establishment of a person and his family in the country. |
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| [12] A number of other judges of this Court have adopted a different view. In his recent decision in Harry, Re, Justice Muldoon repeated his strongly held opinion concerning the proper interpretation of paragraph 5(1)(c): |
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| 20. To give away citizenship to those who do not take the trouble to comply with the provisions solemnly enacted by Parliament is not only a kind of lèsemajesté, but it just cheapens Canadian citizenship. Serious, sincere applicants simply must comply with the law, in common with everyone else, whether they like it or not. What a terrible message this Court sends, by overruling a citizenship judge, and granting someone citizenship by defeating Parliament's will! The Court does not make itselflook good by that sort of false bounty. It does not foster respect for the law. |
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| 21. It appears clearly that all of the foregoing is not merely judicial speculation or prattle. Parliament has been amending the CitizenshipAct from time to time since the promulgation of the revised statutes. It has not taken any occasion to enact any provision whatever regarding the residence rules, to make any exception or provide for the granting of citizenship to any applicant who |
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| - would likely be a good citizen, but fails to comply with paragraph 5(1)(c); |
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| - has "centralized" his or her "lifestyle" in Canada because of any circumstance, but is absent; |
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| - has sent or deposited his or her personal property (i.e. bank account, clothing, automobile, etc.) to reside in Canada, while the applicant is absent from this country; |
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| - has become "Canadianized" in less time than the prescribed three of the immediately previous four years; |
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| - needs to be out of Canada on business or whatever for longer than one year of the immediately previous four years; |
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| - has a spouse and/or children or other family members who are already citizens. |
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| 22. This trend of ignoring the law as Parliament wrote it seems to have started with Papadogiorgakis [1978] 2 F.C. 208. Although that case was decided by an eminent judge of the day, the decision is not binding simply because there is no appeal from these citizenship appeal judgments. This factor can create, and does still create a scandalous incertitude in the law. |
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| [13] A third approach, one which perhaps builds on the stronger elements of the other two positions, is found in Koo, Re where Justice Reed concluded that the appropriate test was whether Canada is the place that the person "regularly, normally or customarily lives" or has centralized their mode of existence. In making this determination, she suggested that the relevant criteria should include the length of the person's stays in Canada, the residence of the person's immediate and extended family, the extent and the reason for the physical absences, the quality of the connection with Canada in comparison with any other country and whether the time spent in Canada indicates a returning home as opposed to a mere visit. |
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| [14] Subsection 14(6) of the Act is intended to preclude any appeal from the decision of the Federal Court - Trial Division. As a result, the Court of Appeal has not been called upon to resolve this conflicting case law. Judges of the Trial Division have not been fettered in expressing their own view. In my opinion, it is open to the citizenship judge to adopt either one of the conflicting schools in this Court and, if the facts of the case were properly applied to the principles of the chosen approach, the decision of the citizenship judge would not be wrong. |
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[5] The record is sufficient to support the conclusion of the Citizenship Judge that Mr. Luk established his residence in Canada upon landing, and his conclusion that Mr. Luk's absences from Canada were temporary and consistent with his continuing residence here. The Citizenship Judge did not err in the manner in which he applied the test in Papadogiorgakis.
[6] In this regard I note that some of Mr. Luk's absences were required to deal with personal matters, such as the disposal of property and attending to his parents who were ill. Most of those absences were relatively short, and occurred early in the four year period. The Crown appears to rely particularly on Mr. Luk's first absence which commenced 43 days after landing. That was an absence of only 25 days and the record indicates that he went to Hong Kong to dispose of his personal property. That absence is not inconsistent with the conclusion of the Citizenship Judge that he had by then established residence in Canada.
[7] There were two long absences in 1996 and 1997 related to business and family matters. The record does not provide much detail about one of those absences, which was 123 days long, but it does indicate an explanation for the second and longest absence, a period of 342 days. It appears that Mr. Luk was at that time a representative of an Ontario manufacturer that was marketing its product in the far east. Apparently its first sale in Hong Kong was made during that trip, and that required Mr. Luk's presence in Hong Kong for a longer period than he had expected.
[8] This appeal is dismissed.
"Karen R. Sharlow"
Judge
Toronto, Ontario
October 26, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
- and -
Respondent
| DATE OF HEARING: MONDAY, OCTOBER 25, 1999 |
| PLACE OF HEARING: TORONTO, ONTARIO |
ORDER AND REASONS
DATED: TUESDAY, OCTOBER 26, 1999
APPEARANCES: No one appeared on behalf of either parties
SOLICITORS OF RECORD: Morris Rosenberg
| Deputy Attorney General of Canada |
| Respondent On His Own Behalf |
FEDERAL COURT OF CANADA
Date: 19991026
Docket: T-536-99
Between:
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
ORDER AND REASONS
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