Date : 19991215
Docket: T-1207-98
BETWEEN:
MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
SAU FUN LAU
Respondent
REASONS FOR JUDGMENT
McGILLIS J.
[1] The applicant has appealed from a decision of a citizenship judge dated April 16, 1998. In his decision, the citizenship judge concluded that the respondent met the requirements for citizenship in subsection 5(1) of the Citizenship Act, R.S.C. 1985, c. C-29 and granted her citizenship.
[2] The respondent was born in Hong Kong in 1953. She arrived in Canada with her husband as a visitor in December 1987. On September 23, 1991, the respondent and her husband purchased a home in Scarborough, Ontario. On November 24, 1992, a large number of their personal effects were shipped from Hong Kong to that home. On January 20, 1993, the respondent and her son were granted landing in Canada as permanent residents. On January 23, 1993, her daughter arrived in Canada. As of that date, all of the applicant"s immediate family was in Canada.
[3] On May 7, 1997, the respondent filed an application for Canadian citizenship. Her family home in Scarborough, Ontario was listed as her address. In her application, the respondent noted that she had made ten trips to Hong Kong during the prescribed period in order to care for her mother who was ill. Her first trip to Hong Kong to care for her mother was on January 16, 1994, approximately one year after her landing in Canada. Prior to her mother"s illness, the applicant made no trips outside of Canada.
[4] At the hearing before the citizenship judge, the respondent adduced evidence to establish that she was resident in Canada, including photocopies of her health card, social insurance card, library card, driver's licence, bank statements and her income tax returns for the years 1993, 1994, 1995 and 1996. She also submitted evidence concerning her family's presence in Canada, including receipts pertaining to their home, school records for her children and various goods and services purchases in Canada. In an effort to establish that she made the ten trips to Hong Kong in order to care for her ailing and elderly mother, the respondent produced, among other things, a letter from her mother's physician.
[5] The respondent's children were granted Canadian citizenship on April 16, 1998.
[6] The citizenship judge found that the respondent was present in Canada for a total of 896 days, leaving her 199 days short of the requisite 1,095 days.
[7] The reasons issued by the citizenship judge are a printed form decision to which he added brief handwritten notations concerning the respondent. In his reasons, the citizenship judge concluded, among other things, that the applicant had established a residential base at her family's home in Scarborough and had "centralized her mode of living" in Canada on January 21, 1993. In a blank portion of the printed form, the citizenship judge had made the cryptic notation "to look after mother who was ill". In the concluding portion of his reasons, the citizenship judge stated that the respondent "...fully meets the residence requirement of section 5(1)(c) of the Act and within the framework outlined by Associate Chief Justice Thurlow (as he then was) in Re: Papadogiorgakis, No. T-872-78".
[8] In determining the standard of review to be applied in reviewing the decision of the citizenship judge, I have considered the written submissions of counsel for the parties and have reviewed the jurisprudence. I am in general agreement with the analysis of Lutfy J. (as he then was) in Lam v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 410,
T-1310-98 (March 26, 1999) (T.D.), and his conclusion, at paragraph 24, that the standard of review of a decision of a citizenship judge should be close to the correctness end of the spectrum, with "some slight deference" to the decision. I note that several other judges of this Court have also applied that standard of review. [See, for example, Canada (Minister of Citizenship and Immigration) v. Tseng, [1999] F.C.J. No. 1127, T-1434-98, T-1437-98 (July 9, 1999) (T.D.); Canada (Minister of Citizenship and Immigration) v. Chen, [1999] F.C.J. No. 424, T-1531-98 (April 1, 1999) (T.D.); Canada (Minister of Citizenship and Immigration) v. Yang, [1999] F.C.J. No. 423, T-1414-98 (April 1, 1999) (T.D.); Canada (Minister of Citizenship and Immigration) v. Lam, [1999] F.C.J. No. 651, T-1524-98 (April 28, 1999) (T.D.); Canada (Minister of Citizenship and Immigration) v. Wu, [1999] F.C.J. No. 640, T-1247-98 (March 30, 1999) (T.D.); Sio v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 422, T-1700-98 (April 1, 1999) (T.D.); Canada (Minister of Citizenship and Immigration) v. Kuo, [1999] F.C.J. No. 967, T-1046-98 (June 18, 1999) (T.D.)]
[9] During the course of the hearing, counsel for the Attorney General of Canada submitted, among other things, that the Minister erred in law and in fact in finding that the respondent had centralized her mode of living in Canada on January 21, 1993 "the very day she was landed". I cannot accept that submission. At the outset, I note that such a finding is entirely consistent with the conclusion of Thurlow A.C.J. (as he then was) in Re Papadogiorgakis (1978), 88 D.L.R. (3d) 243 at 249 (F.C.T.D.). In that case, the appellant was found to have centralized his mode of living in Canada in May 1974, having been admitted as a permanent resident on May 13, 1974. As a result, the citizenship judge did not err in applying the approach adopted by Thurlow A.C.J. in Re Papadogiorgakis, supra.
[10] In the present proceeding, a review of the evidence in the record establishes that the applicant's date of landing coincided with the arrival of her children in Canada. In other words, as of the date of her landing, all of the applicant's immediate family and her personal effects were in Canada, where she had co-owned a home with her husband since 1991. The applicant had remained in Canada for a year, without making any trips out of the country, until her mother"s illness required her to make several trips to Hong Kong. During her absences, the applicant always intended to return to her family and her home in Canada. Furthermore, her pattern of physical presence in Canada indicates that she was returning home to her family following her trips to care for her mother. In short, the applicant has established a very substantial presence here in Canada.
[11] In applying the standard of review specified in Lam and in considering all of the submissions advanced by counsel for the Attorney General of Canada, I have not been persuaded that the citizenship judge erred in law by failing to apply the proper legal principles of residency to the facts before him in the present proceeding.
[12] The appeal is dismissed with costs.
| D. McGillis |
| ______________________ |
| Judge |
OTTAWA
December 15, 1999