Federal Court Decisions

     T-2680-95

                                             T-2682-95

Ottawa, Ontario, Wednesday, the 2nd day of April, 1997

Present:      The Honourable Mr. Justice Gibson

Between:

             IN THE MATTER OF theCitizenship Act,

             R.S.C., 1985, c. C-29

             AND IN THE MATTER OF appeals from a

             decision of a Citizenship Judge

             AND IN THE MATTER OF

             MAY MAY HELEN LEE,

             AND IN THE MATTER OF

             KAM KIN KENNETH LEE,

     Appellants.

     REASONS FOR JUDGMENT

     AND JUDGMENT

GIBSON, J.:

     The appellants, wife and husband, appeal from a single decision of the Citizenship Court denying their applications for Canadian citizenship.

     The learned Citizenship Judge found that the appellants, who were granted landed immigrant status in Canada on March 1, 1989 had " ...made some connections with Canada", but that "the quality of [their] connections in Hong Kong and the length of [their] absences from Canada during the four years preceding the date of [their] application[s] show that Canada is not where [they] "regularly, normally and customarily live."" During the relevant four year period provided by paragraph 5(1)(c) of the Citizenship Act, the appellants had been absent from Canada a total of 1,145 days, leaving them short by some 780 days of the required period of residence to qualify for Canadian citizenship.

     In his reasons for judgment on a citizenship appeal in Re. Banerjee,¹ an appeal also turning on residency, Dubé J. wrote:

However, each case must turn on its own facts. It is the quality of the attachment to Canada that is to be ascertained. No specific item or number of items will, in all cases, be determinative of the issues .... . The length of the absences of itself is not determinative. However, taken together with the circumstances which surround the absences, the length of the absences may be a factor in determining a person's quality of attachment to Canada ... . [citations omitted ]

     In Re Koo², Madame Justice Reed recited six very useful questions that arise in matters such as this. She wrote:

The conclusion I draw from the jurisprudence is that the test is whether it can be said that Canada is the place where the applicant "regularly, normally or customarily lives". Another formulation of the same test is whether Canada is the country in which he or she has centralized his or her mode of existence. Questions that can be asked which assist in such a determination are:

(1)      was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship?

(2)      where are the applicant's immediate family and dependents (and extended family) resident?

(3)      does the pattern of physical presence in Canada indicate a returning home or merely visiting the country?

(4)      what is the extent of the physical absences - if an applicant is only a few days short of the 1,095-day total it is easier to find deemed residence than in those absences are extensive?

(5)      is the physical absence caused by a clearly temporary situation such as employment as a missionary abroad, following a course of study abroad as a student, accepting temporary employment abroad, accompanying a spouse who has accepted temporary employment abroad?

(6)      what is the quality of the connection with Canada: it is more substantial that which exists with any other country?

     Here the male appellant had been a long-term employee of a bank in Hong Kong. Very shortly after landing in Canada, he returned to Hong Kong to continue his employment until he resigned from the bank on September 30, 1991. The female appellant remained with her husband and, in fact, the periods of absence from Canada for each of them were identical. The female appellant's absences were acknowledged to be to accompany and support her husband both personally and in his responsibilities to care for his aged mother in Hong Kong.

     Following the male appellant's resignation from his banking employment, the appellants remained in the far-east until mid-February, 1992. They then returned to Canada and remained here for some eight and one half months, apart from two brief visits to the United States. During this period in Canada, the appellants incorporated a corporation, and invested substantial money in it which was in turn invested in Vancouver real estate. The corporation engaged in a construction and property management business.

     At the end of the eight and one half months, the appellants returned to the far-east for 360 days. This was followed by a sojourn of two weeks in Canada, another period of 164 days in Hong Kong and/or China, a period of less than three weeks in Canada followed again by a period of 168 days in Hong Kong and/or China, a period of three weeks in Canada, and finally a period of 78 days in Hong Kong and/or China to conclude the relevant four year period.

     On the facts of the appeals before me, I would answer the questions quoted above from Re v. Koo as follows:

(1)      the applicants were present in Canada for a period of eight and one half months prior to more recent lengthy absences. During that period, they took significant steps to centralize their mode of living or existence in Canada.

(2)      the appellants' most significant family attachment would appear to be the male appellant's aged mother who is resident in Hong Kong;

(3)      I conclude that the appellants' pattern of physical presence in Canada following the eight and one half month stay more closely resembles a visiting of Canada than a returning home. The evidence before me did not indicate an active stewardship by the appellants of their business in Vancouver apart from during the eight and one half month stay in Canada;

(4)      the extent of the appellants' physical absences from Canada has been great. The motivation for those absences has been to care for the male appellant's aged mother in Hong Kong and to attend to business interests in China;

(5)      the absences from Canada, to the extent that they relate to care for the male appellant's aged mother in Hong Kong might be said to be of a temporary nature since she is in ill health, but one would hope not. Similarly, though the male appellant described his business interests in China as "temporary", whether that will prove to be true remains to be determined; and

(6)      finally, the quality of the appellants' connection with Canada would appear to be more substantial and long-term than that which exists with any other country but, on all of the evidence before me, I am left with real doubt that the appellants have yet centralized their mode of existence here in Canada.

     Based on my foregoing conclusions, and conscious of the fact that these appeals before me are in the nature of hearings de novo, I conclude that the appeals should be dismissed.

     Counsel for the appellants drew my attention to Rule 903 of the Federal Court Rules³ and, in particular, the obligation placed on a Citizenship judge by that Rule, on receipt of a copy of a notice of appeal, to forward to the Registry of this Court his or her complete file certified by an appropriate officer. The first certified file forwarded on these appeals was substantially incomplete. Counsel pointed this out. An amended certified file was provided which was equally incomplete. It is was only on a further expression of concern by counsel that a complete certified file was finally provided. It is incumbent on Citizenship judges and their support staff to fully and promptly comply with Rule 903. It should not rest on the Registry of this Court or on counsel for appellants to ensure that such obligations are met.

     In the result, these appeals are dismissed.

                         ___________________________

                             Judge

Ottawa, Ontario

April 2, 1997

__________________

     ¹      (1994), 25 Imm. L.R. (2d) 235 (F.C.T.D.)

     ²      (1993) 1 F.C. 286 at 293-4.

     ³      C.R.C. 1978, c.663