Date: 19990409
Docket: T-895-98
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
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
- and -
LING WAH PHYLLIS KU
Respondent
REASONS FOR ORDER
GIBSON J.:
[1] The appellant appeals a decision of a Citizenship Judge to the effect that the respondent meets the requirements of the Citizenship Act1 for a grant of Canadian citizenship. This appeal is in the nature of a trial de novo in light of the fact that it was filed before the coming into force of the Federal Court Rules, 19982.
[2] The background to this appeal is somewhat unusual. In written reasons dated the 17th of June, 1997, the learned Citizenship Judge concluded:
| I have found that you have not maintained a bona fide Canadian centrality of living and thus have not approved this application [that is to say the respondent's application for Canadian citizenship]. |
The respondent appealed that written decision. The appeal came before Mr. Justice Nadon on the 24th of March, 1998. In written reasons dated the 8th of April, 1998, Mr. Justice Nadon wrote:
| At the hearing before me, the appellant [Ms. Ku] and the lawyer who represented her before the Citizenship Judge testified. Their evidence, which was consistent, was that, at the conclusion of the hearing, the Citizenship Judge informed Mrs. Ku that she would have no problem with her application. This directly contradicts the decision rendered in June 1997 ... |
In the result, Mr. Justice Nadon's judgment was to the following effect:
| This appeal is allowed and the written decision of Citizenship Judge Meagher dated June 17, 1997 is quashed. The Minister of Citizenship and Immigration shall be deemed to be notified as of today that Judge Meagher approved the appellant's Citizenship application. |
Thus, this appeal before me, filed on behalf of the Minister, followed.
[3] At the opening of the hearing, counsel for the appellant sought to file a transcript of the hearing before Mr. Justice Nadon. Counsel for the respondent, without notice to the appellant, advised that, as a preliminary matter, he wanted to challenge the standing of the appellant herein to bring this appeal. Both counsel were agreeable to an adjournment of the hearing to allow for the filing of the transcript and the exchange of memoranda regarding the preliminary objection on behalf of the respondent. I determined not to receive the transcript, not to entertain the preliminary objection and not to grant an adjournment. Counsel had reasonable notice of the date fixed for hearing this appeal. Both the issue of filing of the transcript and of the preliminary objection could have been raised earlier. I concluded that it was not in the interest of a just and expeditious determination of this proceeding to further delay the matter.
[4] The respondent, together with her mother and two brothers, was landed in Canada on the 15th of August, 1993. Her father had been landed somewhat earlier. Only sixteen days later, on the 1st of September, 1993, the respondent returned to her place of origin, Hong Kong, to make arrangements for her marriage. She remained in Hong Kong for 161 days before returning to Canada. She again returned to Hong Kong some 10 days later. The reason given by the respondent for the second return to Hong Kong was "Registration/wedding party arrangement". She remained in Hong Kong for 137 days. She returned to Canada in July of 1994 for a brief period after which she again returned to Hong Kong for reasons given as "Personal/Business", this time for a period of 183 days. This pattern continued with three more visits to Hong Kong of durations of 110, 193 and 190 days respectively interspersed with brief periods of time in Canada. The respondent's last return to Canada prior to her application for citizenship was on the 16th of August, 1996.
[5] The respondent applied for Canadian citizenship on the 25th of August, 1996, only slightly more than 3 years after her first arrival in Canada. Apparently prior to the date of her application for Canadian citizenship, the respondent married in Hong Kong and sponsored her husband to emigrate to Canada.
[6] During the brief periods that the respondent was in Canada, she apparently lived with her parents and a sibling. She obtained the ordinary passive indicia of Canadian residence and, in addition, joined with her parents and her two brothers in the incorporation of Convergence Trading Company Ltd. and, at a later date, in the purchase of a home in Richmond Hill, Ontario. The respondent also made charitable donations to some Canadian charities and filed income tax returns in Canada.
[7] Against the terms of paragraph 5(1)(c) of the Citizenship Act, the respondent was short some 964 days of the required 1,095 days of residence in Canada during the period immediately prior to filing her application for citizenship.
[8] In Papadogiorgakis3, Thurlow A.C.J., as he then was, wrote:
| It seems to me that the words "residence" and "resident" in paragraph 5(1)(b) [now 5(1)(c)] of the new Citizenship Act are not as strictly limited to actual presence in Canada throughout the period as they were in the former statute but can include, as well, situations in which the person concerned has a place in Canada which is used by him during the period as a place of abode to a sufficient extent to demonstrate the reality of his residing there during the material period even though he is away from it part of the time. |
| ... |
| A person with an established home of his own in which he lives does not cease to be 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". [emphasis added] |
[9] Given the very brief period for which the respondent first came to Canada, her lengthy absences for only very generally described purposes, interspersed with relatively brief stays in Canada, and the nature of the indicia of commitment to Canada provided by her, the degree to which the respondent "... in mind and in fact..." settled into or maintained or centralized her ordinary mode of living in Canada with its accessories in social relations, interests and conveniences was minimal up to the time that she applied for Canadian citizenship. It may be that her situation has since changed, but that is irrelevant. I am satisfied that, at the time the respondent applied for Canadian citizenship, she had not centralized her mode of living in Canada. In the words of Madame Justice Reed in Re Koo4 Canada had not become the place where the respondent "regularly, normally or customarily lives" or had centralized her mode of existence.
[10] In the result, this appeal will be allowed and the decision deemed by Mr. Justice Nadon to have been made by the Citizenship Judge in respect of the respondent will be quashed.
"Frederick E. Gibson"
Judge
TORONTO, ONTARIO
April 9, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-895-98
| STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| - and - |
| LING WAH PHYLLIS KU |
DATE OF HEARING: WEDNESDAY, APRIL 7, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: GIBSON J.
DATED: FRIDAY, APRIL 9, 1999
APPEARANCES: Ms. Leena Jaakkimainen
For the Applicant
Mr. Sheldon Robins
For the Respondent
SOLICITORS OF RECORD: Morris Rosenberg
Deputy Attorney General
of Canada
For the Applicant
| Sheldon Robins |
| Barrister & Solicitor |
| 2 St. Clair Avenue East |
| Toronto, Ontario |
| M4T 2T5 |
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990409
Docket: T-895-98
Between:
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
Applicant
| - and - |
| LING WAH PHYLLIS KU |
Respondent
REASONS FOR ORDER
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