Date: 19990303
Docket: T-876-98
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 -
CHI LEUNG LAU
Respondent
REASONS FOR JUDGMENT
SHARLOW J.:
[1] The Minister appeals the decision of Citizenship Judge dated March 12, 1998 approving the application of Chi Leung Lau for citizenship.
[2] Mr. Lau had notice of the hearing but did not appear in person or by counsel. No amicus curiae was appointed. The record before me does not include a transcript of the proceedings before the Citizenship Judge. Counsel for the Appellant had not issued a subpoena to Mr. Lau and could suggest no legal basis on which I could find that he had an obligation to appear. Counsel for the Appellant chose to proceed on the basis of the documents that were before the Citizenship Judge and the written argument submitted to this Court.
[3] The only issue before me is whether Mr. Lau meets the residency requirement in paragraph 5(1)(c) of the Citizenship Act. The question is whether he has, within the four years immediately preceding the date of his application for citizenship, "accumulated at least three years of residence in Canada."
[4] The record indicates that Mr. Lau applied for citizenship on January 10, 1996. Therefore the relevant four year period started on January 10, 1992. In terms of physical presence in Canada, the Citizenship Judge found a shortfall of 518 days. The decision of Thurlow A.C.J. in Re Papadogiorgakis, [1978] 2 F.C. 208 establishes that residency is not to be tested by physical presence alone, but by the establishment of a residential base and centralized mode of living in Canada. If that can be found, the residency requirement may be met despite temporary absences from Canada.
[5] Counsel for the Minister argued that on a proper interpretation of paragraph 5(1)(c) of the Citizenship Act, "residence in Canada" should be taken to be synonymous with "presence in Canada." On this interpretation, paragraph 5(1)(c) would require a straightforward tallying of days within and without Canada, and nothing more. If this were the test, Mr. Lau did not qualify for citizenship on the date of his application. This interpretation has the advantage of simplicity. However, I think it is incorrect. By choosing the word "residence" over "presence" Parliament has signalled that paragraph 5(1)(c) is intended to be a qualitative test, as Thurlow A.C.J. has said. The fact that the qualitative test is sometimes difficult to apply cannot justify reading the word "residence" as "presence."
[6] The Citizenship Judge was satisfied that Mr. Lau had established the requisite Canadian residence and that his absences were of a temporary nature, and therefore he was a resident of Canada throughout his frequent absences. Based on the documents alone, I am unable to conclude that the Citizenship Judge was wrong.
[7] Counsel for the Appellant argued that the documents are not capable of establishing whether or not Mr. Lau met the requisite test of residence during the relevant period. In fact, many of the documents on their face would appear to have no bearing on the point. But neither are they inconsistent with the Citizenship Judge"s findings of fact. The Citizenship Judge had the benefit of viva voce evidence from Mr. Lau, and I infer from his decision that he considered Mr. Lau to be a credible witness whose testimony filled the gaps left by the documents, and explained the connection between the documents and the question of his residence.
[8] This inference is supported by the Citizenship Judge"s statement that Mr. Lau"s "Canadian business venture now flourishes and employs 11 Canadian citizens." It is difficult to see that finding of fact as being directly relevant to the question of residence during the requisite period, but it is relevant to Mr. Lau"s credibility. Mr. Lau apparently argued before the Citizenship Judge that from the time of his entry into Canada he was engaged in starting up a Canadian business, but frequent absences were required to deal with family matters and to terminate foreign business matters. The Citizenship Judge obviously believed him.
[9] Counsel for the Appellant argued that the contents of the tax returns included in the documentary evidence raises an inference of under-reporting of world income which in itself would enable me to conclude that Mr. Lau does not have sufficiently close ties to Canada: Minister of Citizenship and Immigration v. Lu (T-624-98, unreported decision of Rothstein J. dated November 16, 1998). To draw that inference is to presume that Mr. Lau is in breach of his legal obligations under the Income Tax Act. I am not prepared to draw such an inference in this case. There may be explanations for the tax filings that would prove them correct, and I have no basis for finding that Mr. Lau has been given a fair opportunity to respond to an allegation that his returns are incorrect.
[10] Counsel for the Appellant suggested that as this proceeding is a trial de novo, I must find in favour of the Crown if the documents fail to prove that Mr. Lau was resident during the relevant period. I do not accept that. The Federal Court Rules give the appellant in a citizenship appeal ample tools for ensuring that all relevant evidence is adduced in this Court. The failure of the Crown as Appellant to avail itself of those tools should not work to the prejudice of the Respondent.
"Karen R. Sharlow"
J.F.C.C.
TORONTO, ONTARIO
March 3, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-876-98
| STYLE OF CAUSE: 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 |
| - and - |
CHI LEUNG LAU
DATE OF HEARING: TUESDAY, MARCH 2, 1999
PLACE OF HEARING: TORONTO, ONTARIO
| REASONS FOR JUDGMENT BY: SHARLOW J. |
DATED: WEDNESDAY, MARCH 3, 1999
APPEARANCES: Ms. Marianne Zoric
For the Appellant
SOLICITORS OF RECORD: Morris Rosenberg
Deputy Attorney General
of Canada
For the Appellant
Chi Leung Lau
3 Highglen Ave.
Markham, Ontario
L3R 0L8
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990303
Docket: T-876-98
| 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 |
| - and - |
CHI LEUNG LAU
REASONS FOR JUDGMENT