Date: 19990303
Docket: T-894-98
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 -
JONG KEE LEE
Respondent
REASONS FOR JUDGMENT
SHARLOW J.:
[1] The Minister appeals the decision of Citizenship Judge R. Meagher dated March 23, 1998 approving the application of Jong Kee Lee for citizenship. Mr. Lee appeared at the hearing but was not represented by counsel. The Deputy Attorney General of Canada did not appoint an amicus curiae. Counsel for the Minister elicited the required evidence from Mr. Lee.
[2] Mr. Lee entered Canada as a landed immigrant on January 10, 1990. He came with his wife and two children. His mother and sister and her family were already living in the Toronto area and were citizens of Canada. His brother and other family members were in Korea, as was his wife's family. Mr. Lee and his wife and children lived in the Toronto area. He worked initially in his sister's restaurant, then in a carwash, and for a few months he worked part-time for a food company. He was unemployed from August of 1992 to March of 1993.
[3] During that time he suffered a breakdown of his marriage that caused him severe emotional distress and made him ill. In March of 1993 he went to Korea, in part to seek the support of his family members during his period of ill health, and in part to assist in caring for his mother in law, who had been diagnosed with stomach cancer. That trip to Korea ended in November, when he returned to Canada. His absence on that trip was 260 days.
[4] Upon his return to Canada Mr. Lee tried to reconcile with his wife but without success. He was divorced in May of 1994. Mr. Lee lived with his sister in Canada after separating from his wife. He also tried to find work in Canada but was unable to do so.
[5] On July 30, 1994 Mr. Lee went back to Korea. From then until November of 1996 he was frequently absent from Canada while he was in Korea and Japan. His absences from Canada, as reported on a questionnaire submitted to the Citizenship Judge, were as follows: July 30, 1994 to December 30, 1994 (153 days), June 26, 1995 to August 23, 1995 (58 days), May 11, 1996 to November 9, 1996 (182 days). In addition, stamps in his passport indicate one or more further absences between October 1995 and March 1996 that might have totalled as many as 122 days. These additional absences were not reported on the questionnaire. Mr. Lee could not explain the failure to report these absences, except to say that the questionnaire was completed by a lawyer he retained at the time. I do not take the omissions of the questionnaire as any indication that Mr. Lee was not credible, particularly since his passport is on the record and he did not hesitate to admit the 1995-1996 absences.
[6] During his time in Korea and Japan, Mr. Lee pursued the idea of developing a business that would export to Korea, Japan and China some Canadian food products, such as those made by McCain's, which he believed would be popular there. His evidence was that he intended his export business to be a Canadian based business. To further this idea he worked for a time with a Korean company owned by a friend in Korea. He travelled frequently to Japan and participated in trade exhibitions. He earned some commissions and also took some other work in Korea for spending money, and for a month or so worked in Korea for a Canadian company called Neon Power.
[7] While in Korea, Mr. Lee lived with family members. His evidence was that the money he earned in Korea is still there. There is no evidence as to whether or not he could have brought his money out of Korea if he had wished to. He earned nothing in Canada during this period.
[8] The only issue before me is whether Mr. Lee met the residency requirement in paragraph 5(1)(c) of the Citizenship Act. The question is whether he had, within the four years immediately preceding the date of his application for citizenship, "accumulated at least three years of residence in Canada."
[9] The record indicates that Mr. Lee applied for citizenship on January 15, 1997.[1] Therefore the relevant four year period started on January 15, 1993.
[10] In terms of physical presence in Canada during that period, counsel for the Minister calculates the shortfall as 419 days. This calculation takes into account the absences reported in the questionnaire and the absences evidenced by his passport. The Citizenship Judge thought the shortfall was 285 days, but that calculation was in error, mainly because it did not take into account the absences that were not reported on the questionnaire.
[11] 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.
[12] 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. Lee did not qualify for citizenship on the date of his application. This interpretation has the advantage of simplicity, but 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."
[13] The Citizenship Judge was satisfied that Mr. Lee had established the requisite Canadian residence at the outset and that his absences were of a temporary nature, and therefore he was a resident of Canada while he was physically in Korea.
[14] Having heard the viva voce evidence of Mr. Lee and his sister Ms. Kim, and having reviewed the documents, I have reached the opposite conclusion.
[15] Mr. Lee was physically present in Canada for approximately three years prior to the statutory four year period and thus had initially established a residential base in Canada. The only real question is whether his numerous lengthy trips to Korea during the statutory four year period, and his activities while in Korea during those trips, were temporary absences from a Canadian residence, as the Citizenship Judge found, or were periods in which Mr. Lee established residence in Korea by reason of his economic and family ties there, as the Crown argues.
[16] Mr. Lee's family connections in both Canada and Korea were important to him. But it was to his family in Korea that he turned when he was ill. That does not diminish the connections to his family here, in particular his mother and his sister, with whom he lived after his marriage breakdown and throughout the relevant period while he was in Canada. But it does indicate that, at least in 1994, his emotional attachment to Korea was a significant one. The evidence also indicates that during the relevant period Mr. Lee looked more to Korea than Canada for his livelihood. That is understandable, given his Canadian work experience. He intended eventually to establish a Canadian based business, but in my view that intention does not outweigh his residential ties to Korea during the relevant period.
[17] The Minister's appeal is allowed and the decision of the Citizenship Judge is quashed.
"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-894-98
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 -
JONG KEE LEE
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
Mr. Jong Kee Lee
For the Respondent
SOLICITORS OF RECORD: Morris Rosenberg
Deputy Attorney General
of Canada
For the Appellant
Jong Kee Lee
2260 Weston Road, Apt. 509
Toronto, Ontario
M9N 1Z1
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990303
Docket: T-894-98
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 -
JONG KEE LEE
REASONS FOR JUDGMENT