T-1443-96
Between:
| 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 |
| SHAIN-JANG LEE |
Appellant.
REASONS FOR JUDGMENT
(Delivered from the Bench at Vancouver on
Tuesday, August 12, 1997 as edited)
ROTHSTEIN, J.
The appellant is a citizen of Taiwan. He immigrated with his family to Canada in 1992 and made an application for citizenship in November of 1995. During the relevant three year period prior to his application, he had been out of Canada 924 days and in Canada 171 days. The citizenship judge denied the appellants application for citizenship. Applying the criteria set forth in Re Koo (1992) 19 Imm.L.R. (2d) 1 at page 11 which I find applicable to this case, I make the following observations as to whether Canada is the place where the appellant normally, regularly and customarily lives:
| 1. The appellant was not physically present in Canada for any long period prior to his absences. He left Canada five days after his landing on March 25, 1992 and during 1992 returned on four occasions for periods of 3, 4, 21 and 11 days. In 1993, he was in Canada on six occasions ranging from 5 to 14 days. In 1994, his seven stays in Canada ranged from 3 to 19 days. In 1995, he was in Canada on five occasions up to the time of his application for periods of 12 to 15 days. |
| 2. The appellant's immediate family lives in Canada, but his siblings, parents and in-laws live in Taiwan. |
| 3. The appellant's pattern of returning to Taiwan is to go there on virtually every trip outside Canada and to stay at the home of his parents, his in-laws or his siblings. |
| 4. The appellant's physical absences from Canada during the relevant period amounted to 924 out of 1095 days or 84% of the relevant time. |
| 5. The physical absences are work related. Although since the hearing before the citizenship judge in March of 1996, the appellant has been away from Canada only two months, his evidence was that he does not know if this can continue depending upon business commitments. Clearly the absences, at least during the relevant period, were not the result of a temporary situation. |
| 6. The quality of the appellant's connection with Canada is primarily business related, although he manifests the usual memberships in clubs, bank accounts, payment of income taxes and the like. While the appellant has numerous business relationships in Canada, during the relevant time, business took the appellant out of Canada for the vast majority of the time. |
Having regard to all of these considerations I do not think the appellant can be considered to have made Canada his normal regular and customary place of residence and therefore he has not accumulated at least three years of residence in Canada as required by the Citizenship Act. The appeal must therefore be dismissed.
However, this case presents an additional consideration. The appellant is an environmental engineer. In 1975, he was academically recognized as having an outstanding thesis. His Canadian employer indicates that it is essential the appellant represent the interests of the company abroad and that in doing so the appellant is making a substantial contribution to the company and to the Canadian economy. Trojan Technologies of London, Ontario, a company for which the appellant has provided support for initiatives in the Pacific Rim has written on the appellant's behalf. The Mississauga Chinese Business Association has made the appellant an Honourary Director. Hazel McCallion, Mayor of Mississauga has written a letter stating that the appellant's entrepreneurial skills, knowledge and success in the business world will be invaluable assets to Canada. The appellant was a member of Canada's Trade Mission to the Far East in February 1997 and the evidence of John Wong, President of the Mississauga Chinese Business Association is that the appellant played a role as a bridge between Taiwan and Canada on that occasion.
Having regard to this evidence it may well be that this is a case for the Governor in Council, in his discretion under subsection 5(4) of the Citizenship Act, to direct the Minister to grant citizenship to the appellant as a reward for services of an exceptional value to Canada. I am aware of divided jurisprudence in this Court as to whether this Court has jurisdiction to make a recommendation relative to subsection 5(4): see for example Re Warnaars Court file T-3896-79 and Re Salon (1979), 88 D.L.R. (3d) 238. Subsection 15(1) of the Citizenship Act requires a citizenship judge to consider whether to recommend that the Governor in Council exercise his discretion under subsection 5(4) of the Act. This is a mandatory requirement on the citizenship judge, but I do not read it to preclude a Federal Court judge, on an appeal, from making a recommendation to the Governor in Council if he or she considers it appropriate. Of course, the recommendation is not binding but at least it ensures that the Governor in Council will have regard to the question of whether it would be appropriate to grant citizenship to the appellant as a reward for services of an exceptional value to Canada when it appears there is evidence relevant to the issue.
In the present case, the matter should be referred to the Governor in Council for further consideration under subsection 5(4) of the Citizenship Act. Counsel for the appellant submits that having regard to the considerations that I have just outlined, it would be more efficacious to simply allow the appeal. However, I am bound by the Citizenship Act and the relevant jurisprudence and in this case I have been unable to find that the appellant meets the residency requirements of the law. Nonetheless, it may well be that this is a case for the exercise of discretion by the Governor in Council under subsection 5(4) of the Citizenship Act.
(Sgd.) "Marshall Rothstein"
Judge
Winnipeg, Manitoba
August 15, 1997
NAMES OF COUNSEL AND SOLICITORS OF RECORD
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
SHAIN-JANG LEE
COURT NO.: T-1443-96
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: August 12, 1997
REASONS FOR JUDGMENT OF ROTHSTEIN, J.
dated August 15, 1997
APPEARANCES:
Mr. Cecil Chapman for Appellant
Ms. Julie Fisher for Amicus Curiae
SOLICITORS OF RECORD:
Watson, Goepel, Maledy for Amicus Curiae
Vancouver, BC