Date: 19990331
Docket: T-1680-98
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
MING CHEUNG YAU
Respondent
REASONS FOR ORDER
REED, J.:
[1] The Minister appeals a decision by a citizenship judge granting the respondent citizenship despite the fact that he had been absent from Canada for 911 days during the four years preceding his application for citizenship.
[2] Counsel for the Minister argues that the test to be applied when determining whether an applicant has met the residency requirements of subsection 5(1)(c) of the Citizenship Act, is one of actual physical presence within the country. Alternatively, she argues that the test set out in Re Koo, [1993] 1 F.C. 286 (T.D.) applies. She also refers to the decisions of Mr. Justice Pinard where he has held that it is only in exceptional cases that absence from the country should be deemed to be presence within it and only in cases where the person is close to the required 1095 days residence within the country. See Re Chow, [1997] Can. Rep. Nat. 38, Re Mui (1996), 105 F.T.R. 158, Re Chan (1995), 28 Imm. L.R. (2d) 203.
[3] In this case the citizenship judge's decision contains an error on its face. He states that the respondent established a "residential base" and a centralized mode of living in Canada at 5 Hornshill Drive, Scarborough, on November 27, 1993. The applicant was landed in Canada on November 27, 1993, but he left almost immediately, not returning until April 16, 1994. The house at 5 Hornshill Drive was not purchased until June 20, 1994, and he and his family did not move into it until August 5, 1994. When in Canada during the earlier period of time the respondent and his family stayed at his sister's home.
[4] The citizenship judge indicated that when the respondent was away, his wife and daughter remained in Canada. This is not completely accurate, although both satisfied the residence requirements and have obtained citizenship. During the period in question, the wife had a job in Canada and the daughter was a student.
[5] The respondent's absences from Canada were caused by his return to Hong Kong to look after his aging parents. His father is 82, his mother 69. He was first interviewed by the citizenship judge in April 1998, and again in June 1998. On the first occasion, the judge apparently expressed reservations about the respondent's application for citizenship because of his extensive absences from Canada. The respondent has never worked in Canada. He held a job for a short period of time for a Canadian company, J.C. Lam & Associates, recruiting potential immigrants to Canada in Hong Kong. He returned to Canada for occasions such as his wife's birthday and their wedding anniversary.
[6] He holds the usual indicia of residence, social insurance number, health card, driver's licence, bank account etc., which tell one little about the quality of a person's connection with Canada.
[7] After the first interview with the citizenship judge, the respondent obtained letters from his parents' doctors in Hong Kong. The letter concerning the respondent's father does not establish illness during the relevant period. That concerning the mother shows her to have some health problems but does not support a conclusion that she needs her son's constant presence because of ill health.
[8] I took from the respondent's submissions, however, that he returned to Hong Kong to look after his parents because it was his filial duty to do so and that obligation is very important in the culture from which he comes. He also stated, on several occasions, that he kept hoping his sister, who was working in mainland China on a two year contract, would become available to look after his parents. He could then return to Canada. However, her employment contract was renewed.
[9] This is not an easy case in which to make a decision. The citizenship judge was clearly swayed by the respondent's sympathetic circumstances. At the same time, the evidence does not demonstrate that the respondent has yet transferred his primary place of residence to Canada. While he has filed tax returns, he has paid no taxes. As noted, he has not been employed in Canada and his absences have been extensive.
[10] The citizenship judge purported to apply the decision in Re Papadogiorgakis, [1978] 2 F.C. 208 (T.D.) to the respondent's situation. In that case, Associate Chief Justice Thurlow states that the assessment is:
| chiefly a matter of the degree to which a person in mind and fact settles into or maintains or centralizes his ordinary mode of living with its accessories in social relations, interests and conveniences at or in the place in question. |
[11] Unfortunately, the respondent has not yet met that test. For the reasons given, the Minister's appeal will be allowed.
[12] During the course of the hearing, at which the respondent represented himself, another potential ground of appeal became obvious. Counsel for the Minister sought to amend her application to add thereto the assertion that the Citizenship Judge had erred in finding the respondent had sufficient knowledge of one of Canada's two official languages, in this case English, in order to be granted citizenship. Having reached the decision set out above, it is not necessary for me to make any decision with respect to the proposed amendment. I note, however, that with citizenship comes the right to vote, to run for election, to participate fully in the political life of this country. It is with this in mind that the requirement of an adequate knowledge of one or other of the two official languages exists. A rudimentary knowledge would not seem to be adequate for that purpose. Nevertheless, as noted, I made no decision in that regard.
"B. Reed"
Judge
TORONTO, ONTARIO
March 31, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-1680-98
| STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
- and -
| MING CHEUNG YAU |
DATE OF HEARING: WEDNESDAY, MARCH 17, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: REED J.
DATED: WEDNESDAY, MARCH 31, 1999
APPEARANCES: Ms. Marianne Zoric
For the Applicant
Mr. Ming Cheung Yau
For the Respondent
SOLICITORS OF RECORD: Morris Rosenberg
Deputy Attorney General
of Canada
For the Applicant
Ming Cheung Yau
5 Hornshill Drive
Scarborough, Ontario
M1S 2Y1
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990331
Docket: T-1680-98
Between:
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Applicant
- and -
| MING CHEUNG YAU |
Respondent
REASONS FOR ORDER