Date: 19990930
Docket: T-199-98
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 -
HON KWAI CHAU
Respondent
REASONS FOR JUDGMENT
REED, J.:
[1] The Minister appeals a decision of the Citizenship Judge, R. Meagher, which decision granted the respondent citizenship.
[2] Judge Meagher's decision contains two egregious errors. Judge Meagher states that the "[respondent's] Canadian business venture now flourishes and employs 16 Canadian citizens." There is little evidence that the venture "flourishes", and the business only has two employees, the respondent and his wife. They operate the business out of their home. Judge Meagher states that the respondent's absences from Canada "were attributable to successful efforts to promote Canadian-made products." The respondent and his company do not sell Canadian-made products. They sell garments produced in Hong Kong (China).
[3] Strangely, this same citizenship judge has made similarly egregious errors in other cases: see Minister of Citizenship and Immigration v. Woon Ming Chan (T-1525-98, April 9, 1999) and Minister of Citizenship and Immigration v. Chi Hing George Tai (T-1330-97, November 4, 1998). In the first, the judge stated that the applicant employed 18 people and his absences abroad were to promote Canadian made products. In the second, the judge stated that the applicant employed twelve Canadian citizens and his absences abroad were for the purpose of promoting Canadian-made products. In both cases, the applicants employed no one but themselves and their absences abroad, which were extensive, did not involve the promotion of Canadian-made products.
[4] In any event, the errors in the citizenship judge's decision in this case means that that decision must be set aside. The appeal, having been filed on February 6, 1998, before the coming into force of the Federal Court Rules, 1998, on April 25, 1998, is an appeal by way of trial de novo. The respondent was called as a witness. I did not find his evidence entirely credible. His evidence that his world wide income for the years 1994, 1995, and 1996 was $21,495, $36,898, and $54,982 respectively is simply implausible. At one point in his evidence he stated that he worked on commission, at another that he received a salary from the Hong Kong family business for which his Canadian company was a middleman. He did not satisfactorily explain how a salary of $3,800 per month translated into an income of $21,495 and $36,898 per year. Also, the total income reported would have included investment income, as well as his employment income, since he stated that he had moved all his investment assets to Canada when he immigrated.
[5] Another aspect of his evidence that lacks credibility is his explanation for his absences abroad. He could give no satisfactory explanation as to why the "monitoring" of the Canadian orders, received by the Canadian company for the Hong Kong made garments, required so much time in Hong Kong. Mr. Justice Gibson's comments in Minister of Citizenship and Immigration v. Lu (T-1617-98, April 9, 1999) are equally applicable to the facts of this case: "[w]ith income in such amounts, it is difficult if not impossible to conclude that the respondent's Canadian business justified, and could support, the amount of time that he purported to spend outside Canada in pursuit of the interests of that business". In addition when the respondent was first asked whether he had signed his citizenship application in Canada, or in Hong Kong, he answered Canada, but when it was pointed out to him that the list of his absences showed that he was in Hong Kong on the relevant date, he changed his evidence, saying the citizenship application had been forwarded to him in Hong Kong.
[6] I turn then to the factors referred to in Re: Koo, [1993] 1 F.C. 286. The respondent did not have a lengthy period of physical presence within the country before his first absence. He came here as a landed immigrant on April 2, 1994; he returned to Hong Kong on April 29, 1994. The respondent's wife and two children came to Canada with him and remain here; they have obtained citizenship. His parents, and his siblings remain in Hong Kong; this is where the family business that he says is now run by his brother and his father is located. The pattern of his physical presences is ambivalent. They can be characterized as the trips of a person to visit his family as often as business allows, as much as those of a person returning home. In Hong Kong he usually resides with his mother-in-law. The physical absences are very extensive - over the time in question he spent less than a year in Canada (i.e. 308 days). The physical absences are not caused by a temporary situation. There is every reason to conclude that the respondent will continue to find it necessary to earn his and his family's livelihood in Hong Kong and this will require the spending of extensive periods of time there. I can not conclude that the respondent's connection with Canada is more substantial than that with Hong Kong. He and his wife are the owners of an expensive house here. He has acquired all the passive paper indicia of residence. Perhaps in the future he will find himself in a position to fulfil the residence requirements of the Act, but he has not yet done so.
[7] For the reasons given, the appeal will be allowed and the decision of the citizenship judge will be set aside.
Judge
OTTAWA, ONTARIO
September 30, 1999