Date: 19990929
Docket: T-213-99
BETWEEN:
SHUN MEI CHANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED, J.:
[1] The appellant appeals a decision of a citizenship judge that found she had not fulfilled the residency requirements of paragraph 5(1)(c) of the Citizenship Act and, therefore, was not entitled to citizenship.
[2] The appellant argues that the citizenship judge miscalculated the numbers of days she was absent from Canada. The appellant submits that she was only 252 days short (approximately) of the required 1095, and not the 426 days as stated by the citizenship judge. It is clear that there was an error in the calculation, although it is not as clear that the number is 252, as opposed to 350. In addition, I note that the miscalculation occurred, in large measure, because of the way the appellant reported her absences to the citizenship judge. Nevertheless, there is an error and the appellant is entitled to an evaluation on the basis of the correct calculation.
[3] Counsel for the applicant also argues that the citizenship judge did not assess, in accordance with the relevant jurisprudence, whether the appellant resided in Canada during the days in question, despite the fact that she was physically absent from the country.
[4] I have stated on other occasions that the fact that there are two (perhaps three) lines of authority in this Court must be extremely frustrating for citizenship judges - how are they to know what standard to apply? As I recently stated in The Minister of Citizenship and Immigration v. Yi Cheng Jennifer Chuang, (September 14, 1999) T-6-99 (F.C.T.D.), "perhaps Parliament did mean that physical presence was an absolute essential for each of the 1095 days required by paragraph 5(1)(c), but perhaps it did not." At the same time, Parliament did not move to clarify the meaning of residence until recently and differing lines of authority have been applied by this Court for a long time. Following the decision in Re: Papadogiorgakis, (1978) 2 F.C. 208 (T.D.), where Thurlow J. held that a person could be resident within Canada even though not physically present for the whole of the time, there have been many decisions where citizenship has been granted when the applicant was physically absent for many of the 1095 days. For example, in Re: Hajjar, (February 5, 1998) T-1115-96 (F.C.T.D.), citizenship was granted despite the applicant spending only two months annually in Canada in the relevant time period; in Re: Chow, [1998] F.C.J. No. 487 (T.D.), citizenship was granted although the applicant was short 853 days; and in Re: Wong, [1998] F.C.J. No. 519 (T.D.), the applicant had only been present in Canada for 373 days leaving a shortage of 722 days.
[5] On the other hand, recently there has a been move away from the application of the Re: Papadogiorgakis test. Following the decision in Re: Poughasemi (1993), 19 Imm.L.R. (2d) 259 (F.C.T.D.), where Muldoon J. held that the purpose of section 5(1)(c) is to ensure that an applicant has "Canadianized" and that such could not be accomplished by being absent from Canada, for Canadian life and society existed only in Canada and nowhere else, a test that requires physical presence for the whole 1095 days is now being applied. The application of the stricter approach can be seen in the cases of Re: Chang (February 5, 1998) T-1183-97 (F.C.T.D.), Re: Chen (October 27, 1998) T-137-98 (F.C.T.D.); Re: Chow (1997), 40 Imm.L.R. (2d) 308 (F.C.T.D.); M.C.I. v. Ho (November 24, 1998) T-19-98 (F.C.T.D.); Re: Hui (1994), 24 Imm.L.R. (2d) 8 (F.C.T.D.); M.C.I. v. Lok (March 29, 1999) T-1179-98; and M.C.I. v. Ching Pin Lin (January 6, 1999) T-2803-97 (F.C.T.D.). (Legislation (Bill C-63) presently before the House of Commons would clarify the situation by requiring 1095 days physical presence but over a six year (not a four year) time period).
[6] Thus, within the current jurisprudence of this Court, there are differing lines of authority that citizenship judges can apply. Mr. Justice Lutfy in Re: Lam (1996), 36 Imm.L.R. (2d) 29, stated that a citizenship judge's decision should not be overruled because one test rather than the other is applied, providing the judge articulates the test being used and explains why it is met or not met in the instant case. The difficulty in the present case, as counsel for the appellant points out, is that the judge has not explained the test she applied, but has simply set out the statutory provisions and then concluded that the applicant has not met them. In the circumstances, I will assess the appellant's application applying the tests set out in Re: Koo (1992), 19 Imm.L.R. (2d) 1 (F.C.T.D.).
[7] One is hampered in that exercise by the fact that there is no transcript of the proceedings before the citizenship judge. In such circumstances, I accept the appellant's affidavit of what was said to the citizenship judge. (The proceeding before citizenship judges could be taped and I do not think the appellant should be disadvantaged because this procedure is not followed.)
[8] The appellant states that she told the citizenship judge that she first came to Canada in 1980 as a visitor, and landed as a permanent resident on August 10, 1992, under the entrepreneur category. According to a letter of a representative of the province of British Columbia, the appellant came to Canada to establish a manufacturing base for her family's long established pharmaceutical business in Taiwan.
[9] The appellant also states that she informed the citizenship judge that she had established a ginseng plant and that in setting up the plant she had invested and lost over $1 million. Furthermore, the appellant states that she informed the citizenship judge that after many years of hard work the plant was finally going to work. There is no doubt that both the appellant and her company have paid minimal taxes over the years in questions.
[10] The appellant established the ginseng plant in Kamloops in 1991 and incorporated Sunmore Healthtech Ltd. on January 2, 1991 (a year and a half before she became a landed immigrant). The appellant submits that she employs 16 people in Kamloops. The appellant states that she informed the citizenship judge that it was because of business that she had to travel outside Canada. The market for the ginseng produced by her company is mainly Asian. However, the reasons for her absences were not entirely business related. It is clear from the description on the record that many of the absences were holidays and that on those occasions she went to Taiwan. Indeed, with few exceptions, her travel was exclusively to Taiwan. The few exceptions appear to be mainly trade shows in other countries.
[11] The appellant has never been married and was not accompanied by family members. She terminated her previous employment before leaving Taiwan. The appellant owns two residential properties, one in Kamloops and one in Vancouver, with the latter being acquired in 1990.
[12] The appellant also states that she had accumulated more than three years of physical presence in Canada by the end of 1997, since landing in August 1992. It is not immediately obvious from the record that this is so. I realize that if the legislation (Bill C-63), introduced on December 7, 1998, was to be enacted, as noted above, it would clarify the residency requirements. That legislation requires that a person be physically present for 1095 days during the five years immediately preceding the application for citizenship (changed in Committee to 1095 days during the six years immediately preceding ... ). However, until such time as this legislation is enacted, the residency requirements must be completed under the current provisions of the Act.
[13] I have applied the test in Re: Koo, supra: (1) the appellant did not have a lengthy period of physical presence in Canada prior to her first absence - she had some presence here of a similar quality to that that existed after she was granted landing; (2) her extended family is in Taiwan, not Canada; (3) the pattern of physical presences and absences is an ambivalent one - Taiwan appears to be as much, if not more, "home" for her than does Canada; (4) she is not merely a few days short of the required 1095 - but is almost a whole year short (i.e., over the four year period she is absent 50% of the time); (5) there is no reason to think that the absences are temporary; and (6) the evidence is ambivalent with respect to whether she has a closer connection with Canada than with Taiwan.
[14] An applicant for citizenship has the burden of demonstrating that he or she meets the requirements for citizenship. On the basis of the above analysis, I could not conclude that the appellant has done so. It is to be hoped that Parliament will soon pass the amending legislation that is designed to clear up the ambiguity in the present law, or at least, enact provisions that allow for an appeal to the Federal Court of Appeal.
[15] For the reasons given the appeal will be dismissed.
"B. Reed"
Judge
TORONTO, ONTARIO
September 29, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-213-99
| STYLE OF CAUSE: SHUN MEI CHANG |
| - and - |
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
DATE OF HEARING: THURSDAY, SEPTEMBER 9, 1999
PLACE OF HEARING: VANCOUVER, BRITISH COLUMBIA
REASONS FOR ORDER BY: REED, J.
DATED: WEDNESDAY, SEPTEMBER 29, 1999
APPEARANCES: Mr. Lawrence Wong
For the Applicant
| Mr. Victor Caux |
| For the Respondent |
SOLICITORS OF RECORD: Lawrence Wong & Associates
Barristers & Solicitors
600-2695 Granville St.
Vancouver, BC
V6H 3H4
For the Applicant
| Morris Rosenberg |
| Deputy Attorney General of Canada |
| For the Respondent |
FEDERAL COURT OF CANADA
Date: 19990929
Docket: T-213-99
Between:
| SHUN MEI CHANG |
Applicant
| - and - |
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
Respondent
REASONS FOR ORDER