Canada (Minister of Citizenship and Immigration) v. Kuo, docket T-1046-98

Date: 19990618

Docket: T-1046-98

BETWEEN:

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Applicant

AND:

     GUANG TAO KUO

     Respondent

     REASONS FOR ORDER

ROULEAU, J.

[1]      This is an application for the review of the decision of a Citizenship Judge who granted the respondent Canadian citizenship on March 23, 1998. The applicant seeks an order setting aside the decision of the Citizenship judge on the basis that he erred in determining that the respondent satisfied the residency requirement under paragraph 5(1)c) of the Citizenship Act, R.S.C. 1985, c. C-29, which requires that an applicant for Canadian citizenship must have accumulated at least three years of residency in Canada within the four years immediately preceding his or her application.

[2]      Despite having properly been served, the respondent did not attend the hearing.

[3]      The applicant filed the application on May 22, 1998. It is therefore governed by the Federal Court Rules, 1998. Under these Rules, citizenship appeals are no longer trials de novo, but instead are now to proceed by way of application based on the record before the Citizenship Judge; see Canada (M.C.I.) v. Cheung (1998), F.C.J. No. 813 (F.C.T.D.).

[4]      In Yeung v. Canada (M.C.I.) (February 3, 1999) T-1256098, Campbell J. held that "for a decision of a citizenship judge to be set aside, it is necessary to find reviewable error". In Ma v. Canada (M.C.I.), (1999), F.C.J. No. 288, Reed J. noted that the Citizenship Act states that the proceeding is to be an appeal. She further noted that section 18.5 of the Federal Court Act, R.S.C. 1985, c. F-7 precludes judicial review by the Federal Court of a decision or order of a federal board to the extent that there already exists a statutory right of appeal. In Wang v. Canada (M.C.I.) (1999), F.C.J. No. 439, she commented that the appropriate standard of review is correctness. Finally, in Kit May Phoebe Lam v. Canada (M.C.I.) (March 26, 1999) T-1310-98, Lutfy J. wrote that the standard of review should be "one close to the correctness end of the spectrum". He added however that "some deference is owed to the special knowledge and experience of the citizenship judge during this period of transition".

[5]      Mr. Kuo was born in Taiwan, in the Republic of China on July 1, 1945. He first came to Canada on February 1, 1989 and was landed on August 21, 1993. He has since founded a private secondary school in Toronto, called the Imperial College. On December 7, 1996, he filed an application for Canadian citizenship and attended interviews on February 24 and March 12, 1998. On his citizenship application, he reported the following absences from Canada:

[6]      The respondent's absences total 245 days. According to the calculations of the Citizenship Judge, he was 136 days short of the 1095 days required to fulfil the residency requirement. The Judge decided however that the respondent met the residency requirement, since he had centralized his mode of living in Canada. In doing so, the Judge considered that the respondent had acquired the usual indicia of Canadian citizenship: S.I.N., domicile, health insurance, bank account, and the establishment of a successful business in Canada which employs six Canadian citizens. The majority of the respondent's absences were attributable to efforts to promote his business. Throughout his periods of absence, he maintained a pied-à-terre in Canada. His ties with other countries were terminated.

[7]      The applicant takes issue with the decision based on inconsistencies found in the respondent's citizenship application, his passport and the residence questionnaire he completed on February 8, 1998. For instance, in the residence questionnaire, the respondent omitted to mention his holiday in Germany and his three day trip to Hong Kong. As well, the passport the respondent submitted in support of his application was renewed in Taiwan on July 25, 1995, on a day the respondent alleged he had been in Canada. There are discrepancies between the visas stamped in the passport and the absences reported on the application form and the residence questionnaire. Specifically, there is a visa dated February 2, 1996 in the passport, a date the respondent claimed he had been in Canada. As well, I found visas bearing Asian writing dated February 20, 1996 and March 3, 1996 which is the period of time the respondent claimed he was vacationing in Germany. At page 39 of the record, we find a visa dated September 25, 1995, a date the respondent claimed he was in Canada. Clearly, the respondent's travels have been more extensive than he indicated in his application.

[8]      There are also inconsistencies between the citizenship application and the residence questionnaire as to the address of the respondent. In the questionnaire, the respondent wrote in answer to the question "Where have you lived since your initial entry?":

[9]      Yet, on his application dated December 7, 1996, he had written that he had lived at the Madison Avenue address for the 3 years and 3 months preceding his application. This would mean that he lived at the Madison Avenue address since September 1993. The record (pages 57, 71 and 73) also reveals that the Madison Avenue apartment was leased by the Imperial College of Toronto from November 1995 to October 1996 and then by someone named Ming Mei Kuo. According to the applicant, this person is the respondent's brother.

[10]      The respondent wrote on the residence questionnaire that he rents lodgings in Taiwan and West Malaysia as of February 8, 1998. He also indicated that he resides, as of the same date, at 20 queen Elizabeth Blvd in Toronto, which he claims to own. However, according to the documents in the record, this is the address of the school where the respondent works (see pages 115 and 139 of the Applicant's Record). This period of time post-dates the application for citizenship and is therefore not relevant to the residency requirement. However, in my view, this oddity further diminishes the respondent's credibility.

[11]      In my opinion, the contradictions and inconsistencies contained in the respondent's application cast a serious doubt on the credibility of the facts upon which the decision of the Citizenship Judge was based. As a result, the decision should be set aside.

[12]      For the above reasons, the application is allowed. I am quashing the decision of the Citizenship Judge.

                                     JUDGE

OTTAWA, Ontario

June 18, 1999