Date: 20000626
Docket: T-1464-99
BETWEEN:
Yan Anita Lam
Applicant
and
The Minister of Citizenship and Immigration
Respondent
T-1465-99
BETWEEN:
Kwok Shing Chiang
Applicant
and
The Minister of Citizenship and Immigration
Respondent
REASONS FOR ORDER
TEITELBAUM, J:
[1] These files are two separate appeals pursuant to subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 ("Act"), in respect of two decisions of Citizenship Judge Sigmund Reiser, dated June 30, 1999. The applicants are husband and wife and the two files were heard together. I will therefore deal with both files in one decision.
[2] The Notices of Application in these files were filed on August 11, 1999. Consequently, these applications fall under the Federal Court Rules, 1998.
FACTS
[3] The applicants came to Canada from Hong Kong with their two children and were admitted as permanent residents on January 21, 1995. On April 9, 1998, (a little less than three years and three months after landing) the applicants submitted applications for citizenship. On each of their applications, Mr. Chiang and Mrs. Lam listed the following absences from Canada.
| 1. from February 3, 1995 until July 20, 1995 [167 days]; |
| 2. from August 1, 1995 until December 21, 1995 [142 days]; |
| 3. from January 1, 1996 until December 21, 1996 [355 days]; |
| 4. from January 2, 1997 until December 13, 1997 [345 days]; |
| 5. from January 2, 1998 until January 23, 1998 [21 days]; and, |
| 6. from February 3, 1998 until April 7, 1998 [63 days]. |
[4] Mr. Chiang stated on his application form that the reason for his absences from Canada was to finish his PhD studies in pathology. In his affidavit, Mr. Chiang stated that he "was so far advanced that it would be impossible to change to a Canadian university."1 He apparently completed his PhD on December 1, 1998,2 but was required (by the terms of his scholarship/employment) to remain in Hong Kong until May 2000.3 Mrs. Lam stated that she left Canada to accompany her husband and for business reasons.
[5] In fact, Mr. Chiang did not complete a PhD degree but completed a degree in medicine and may now obtain a PhD degree.
[6] In support of her application, Mrs. Lam submitted copies of the following documents: a social insurance card; a BC health card, a BC driver"s licence; credit cards; a membership card from the Western Indoor Tennis Club; a video store card; and a membership card for Price/Costco.4 She also included copies of Returning Resident permits.5 Similar documentation was submitted by Mr. Chiang.6 Both applicants filed Canadian tax returns for the years 1995-1997.7 In fact, the family is still in Hong Kong as of the date of the hearing of the present appeal.
[7] On May 1, 1995, Mrs. Lam was offered and accepted employment with S.E.A. Investments Inc., as Vice President & Director - East Canada Region.8 According to Mrs. Lam, this work required her presence in Hong Kong. On June 13, 1995, the applicants purchased a condominium in Vancouver.9 The family was in Hong Kong during this period. The family was also in Hong Kong on the date they filed their citizenship applications.
[8] On their applications, Mr. Chiang and Mrs. Lam listed a Markham address, not the Vancouver address, as their address for postal purposes. In the hearing before the citizenship judge, the applicants stated that this Markham address was merely a "postal drop".10
[9] The citizenship judge found that the applicants were present in Canada for a total of 76 days, leaving them 1019 days short of the requisite 1095 days.11 The judge held that the "indices of presence in Canada" were "mere props to support your residence claims which should be able to stand on its own."11 As well, he held that the applicants had "no activities in terms of personal, social or organizational involvement with Canada."11 He refused the applicants" applications for citizenship.
ISSUE
[10] The applicants submit that the citizenship judge erred in fact and law in using a "standard form refusal letter" with "little or no reference" to the following "important personal facts":
| Mr. Chiang: the amount of income tax paid, the fact that Mr. Chiang was absent due to his studies, and that he secured Returning Resident Permits during his absences. |
| Mrs. Lam: the presence of Mrs. Lam"s parents in Canada, that Mrs. Lam"s employer is Canadian, and that she secured Returning Resident Permits during her absences. |
ANALYSIS
Standard of Review
[11] In Canada (Minister of Citizenship and Immigration) v. Lok, Denault J. held that since the coming into force of the Federal Court Rules, 1998, counsel in citizenship appeals must raise the "new issue" of the "applicable standard of review".11 In Lam v. Canada (Minister of Citizenship and Immigration), Lutfy J. (as he then was) held that the standard should be "one close to the correctness end of the spectrum" with "some deference" shown to the "special knowledge and experience of the citizenship judge...".12 Under a correctness standard, I must "assess whether the judge has made reference to one of these classifications of jurisprudence, and if that is done, whether that is then applied correctly to the facts of this case." If the test has been applied correctly, the reviewing court should not intervene.13
[12] I am satisfied that the appropriate standard of review is that articulated in Lam, supra.
Application of the Thurlow Framework
[13] On a number of documents, the judge wrote the "Thurlow", indicating that he was applying the "constructive residency" test as articulated by Thurlow A.C.J. (as he then was) in Re Papadogiorgakis :14
| A person with an established home of his own in which he lives does not cease to be a 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".15 |
[14] In applying this test, the citizenship judge would therefore have placed less emphasis on the strict counting of days and more emphasis on the quality of attachment to Canada. In particular, the citizenship judge would have had to determine whether or not the respondent had "centralized her mode of living" in Canada.16
[15] In Cheung v. Canada (Minister of Citizenship and Immigration), Evans J. followed the teachings in Re Koo in reviewing the findings of the citizenship judge.17 In Re Koo, Reed J. articulated six questions that may assist the Court in determining whether or not a person has "centralized his or her mode of existence" in Canada:
| (1) was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship? |
| (2) where are the applicant's immediate family and dependants (and extended family) resident? |
| (3) does the pattern of physical presence in Canada indicate a returning home or merely visiting the country? |
| (4) what is the extent of the physical absences"if an applicant is only a few days short of the 1,095-day total it is easier to find deemed residence than if those absences are extensive? |
| (5) is the physical absence caused by a clearly temporary situation such as employment as a missionary abroad, following a course of study abroad as a student, accepting temporary employment abroad, accompanying a spouse who has accepted temporary employment abroad? |
| (6) what is the quality of the connection with Canada: is it more substantial than that which exists with any other country?18 |
| [16] In considering these six questions, I am of the opinion that the citizenship judge did not err in either case. |
| [17] Mr. Chiang"s case is very similar to Canada (Minister of Citizenship and Immigration) v. Rahman, in which Simpson J. commented: |
| The Papadogiorgakis decision indicates that the Court may treat a student as a resident, despite substantial physical absence, if that student established and maintained residence in Canada by centralizing his or her mode of living in Canada, and was abroad only for temporary studies and returned frequently. |
| However, Papadogiorgakis is not authority for the proposition that a student can come to Canada for a short time, not establish residence, then spend long periods of study and vacation abroad and, on that basis, expect to meet the residence requirement for Canadian citizenship. |
| I should observe that establishing residence is not only a matter of assembling the usual paperwork associated with a resident (health card, social insurance card, bank card, tax returns, library card, drivers license, etc.). In my view, some effort to integrate into Canadian society is also necessary. This could occur in a workplace, in a volunteer group, or in social or religious activities, to name just a few possibilities.19 |
| [18] Even using a liberal interpretation of the "constructive residency" principles, this family does not, in my view, come close to having a centralized mode of living in Canada. They live and work in Hong Kong. Their two children attend school in Hong Kong. The family"s ties to Canada could be considered weak and, in my opinion, highly questionable. Their applications for citizenship were premature. It is clear from the text of the decisions that the citizenship judge considered the evidence in the record and correctly applied the factors as outlined in Koo, supra . |
| [19] This appeal is dismissed. |
| "Max M. Teitelbaum" |
| J.F.C.C. |
| Calgary, Alberta |
| June 26, 2000 |
1 Chiang File, Applicant"s Application Record at 6.
2 Tribunal Record at 204-206 [hereinafter TR]. The Tribunal Records for both files are the same.
11 [1999] F.C.J. No. 639, T-1179-98 (March 29, 1999) (T.D.).
12 [1999] F.C.J. No. 410 at para. 33, T-1310-98 (March 26, 1999) (T.D.) [hereinafter Lam ].
13 Singh v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 786 at para. 11, T-2040-98 (May 26, 1999) (T.D.) per MacKay J. [hereinafter Singh]. See also Lam, supra at para. 33.
14 [1978] 2 F.C. 208 (T.D.) [hereinafter Papadogiorgakis ].
16 See Re Ho, [1997] F.C.J. No. 1747 at para. 7, T-2871-96 (December 15, 1997) (T.D.). As was stated by Dubé J. in that case: "[t]he most eloquent indicia of residency is the permanent establishment of a person and his family in the country."
17 Cheung v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1408, T-26-99 (September 9, 1999) (T.D.).
18 [1993] 1 F.C. 286 at 293-294 (T.D.).
19 [1999] F.C.J. No. 655 at paras. 8-10, T-2161-97 (April 29, 1999) (T.D.).