Canada (Minister of Citizenship and Immigration) v. Lui, docket T-2249-96

Date: 19971212

Docket: T-2249-96

     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

     MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Appellant,

     - and -

     YIN WOON LUI,

     Respondent.

     REASONS FOR JUDGMENT

JOYAL, J.

[1]      The Minister of Citizenship and Immigration appeals from a judgment of the Citizenship Judge, dated August 15, 1996, wherein the Judge approved the application of the respondent for a grant of citizenship under sub-section 5(1) of the Citizenship Act ("the Act").

[2]      Counsel for the appellant relies on sub-section 5(1)(c) of the Act, which imposes a three-year period of residency in Canada over the four years immediately preceding an application for citizenship. On the evidence, the applicant had accumulated little more than 100 days of physical residency in Canada over the previous four years, this representing a shortfall of some 994 days. Counsel suggests that notwithstanding the doctrine of constructive residency outlined in Re. Papadogiorakis¹, the respondent had not in fact met the conditions or criteria imposed by that doctrine and to which jurisprudence has consistently referred over close to 20 years.

[3]      In particular, argues counsel for the appellant, the Citizenship Judge did not have before him sufficient material facts to conclude as he did. Counsel's argument is as follows:

1.      There was no evidence to explain why the respondent, a student at Babson College in Massachusetts, could have spent so few days with her parents between April 1992 and December 1994.

2.      The respondent's very brief stay at her parents' home in the last 6 or 7 days of April 1992, when first arriving in Canada, creates strong doubts that she in fact established Canadian residency at that time.

3.      Other indicia of residency, i.e. driver's license, social insurance card, Ontario Health card, etc., are substantially dated after December 1994, when the respondent graduated from college.

4.      The actual shortage of 994 days out of a possible 1095 is an objective fact which considerably undermines any inference that the respondent, from the date of her landing in Canada, allowed herself to be drawn in Canadian attitudes and values.

5.      The reasoning of the Citizenship Judge clearly indicates a departure from the several indicia found in jurisprudence when considering constructive residency. In this respect, the judgment of Reed J. in Re. Koo2 lists them as follows:

(a)      the periods of absences and of residency prior to the citizenship application date;

(b)      the residence of the applicant's immediate or extended family or dependents during the statutory period;

(c)      the pattern of physical presence in Canada indicating either a return home or merely a visit;

(d)      is the absence from Canada for a fixed but temporary period?;

(e)      what is the quality of the applicant's involvement with Canada and Canadians?

[4]      I must, with some reluctance, subscribe to the position taken by the appellant. This is not to suggest that the respondent's case does not have merit, or that her potential as a Canadian citizen may not be established. It is simply that the evidence which would otherwise support the decision below is, in my respectful view, not sufficient.

[5]      First of all, consideration must be given to the exceptionally high disproportion of absence days to residency days during the period in question. A total of 994 absent days is in a ratio of ten to one, and although in itself not determinative, is at the extreme edge of jurisprudential generosity.

[6]      Although it is true that the respondent had a family living in Canada during her absences, the evidence is very poor as to her ties with her family on an ongoing basis during those years, her visits being very infrequent and generally very brief. The question may be put: what were the respondent's whereabouts during summer and Christmas vacations, and Easter breaks? There are perhaps some very valid explanations for her absences, but none is on record, and no firm conclusion may be drawn.

[7]      The same observations apply herein with respect to other indicia examined in cases dealing with residency issues, namely drivers' licences, health cards, bank accounts and the like, which, in the circumstances, have very little probative value. So too, the absence of objective evidence as to a desire to return to Canada to live and to the degree of immersion into Canadian society and institutions in the course of the relevant period.

[8]      In my respectful view, a Court on appeal must be wary of extending mathematical formulae beyond the calculations of residency and absence days. If there should be found three indicia out of five or four out of seven, it should not be a case of winner take all. Varying weights may be given to each criterion. Furthermore, expressions of subjective desires, wishes, or purposes must always be buttressed by more objective elements in order to enable more solid inferences to be drawn.

[9]      Thus, based upon all of the above considerations, the appeal should be allowed and the decision below quashed.

                                 L-Marcel Joyal

    

                                 J U D G E

O T T A W A, Ontario

December 12, 1997

__________________

     ¹      (1978) 2 F.C. 208.

     ²      (1993) 1 F.C. 289.