Date: 19990301
Docket: T-1683-96
OTTAWA, ONTARIO, THIS 1ST DAY OF MARCH, 1999.
PRESENT: THE HONOURABLE MR. JUSTICE CULLEN
BETWEEN:
MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
- and -
CHUNG SHUN PAUL HO
Respondent
REASONS FOR ORDER AND ORDER
CULLEN J.:
INTRODUCTION
[1] This is an appeal under subsection 14(5) of the Citizenship Act and section 21 of the Federal Court Act, brought on behalf of the Minister of Citizenship and Immigration, from the decision of Citizenship Judge R.W. Meagher, dated May 16, 1996, wherein the Judge approved the application of the respondent for a grant of citizenship under subsection 5(1) of the Citizenship Act.
THE FACTS
[2] There is no real dispute on the facts, and with a few deletion and add ons the background to this application is summarized in the Appellant"s Memorandum of Argument:
| ... |
| 2. By his decision of May 16, 1996, the Citizenship Court Judge decided that the respondent had met the residence requirement of s. 5(1)(c) of the Citizenship Act, ... |
| ... |
| 3. For the purpose of these submissions, counsel for the appellant relies on the material contained in the copy of the Citizenship Judge"s complete file, received pursuant to Rule 903 of the Federal Court Rules . |
| 4. The appellant submits the following evidence was before the Citizenship Judge: |
| a) The respondent was born in Hong Kong on April 21, 1961. |
| b) He received a Master of Business Administration degree and Master of Science degree in Accountancy and Taxation for the University of Houston, Texas, United States of America. He was also a certified public accountant of the United States, a member of the American Institute of certified Public Accountants, and a member of the Hong Kong Society of Accountants. |
| c) On October 31, 1990 he entered Canada alone and acquired landed immigrant status. |
| d) At the time of his entry into Canada, the respondent was employed by Coopers and Lybrand of Hong Kong, certified public accountants. The Hong Kong office was a member of Coopers and Lybrand International, a limited liability association incorporated in Switzerland. He had been working in Hong Kong for Coopers and Lybrand from 1988. As of 1993, he was the manager of the U.S. Tax Division, engaged in U.S. tax planning and foreign investments. |
| e) On August 14, 1995, he completed an adult application for Canadian citizenship, which was received by Citizenship Court in North York on September 7, 1995. |
| f) During the four years preceding the signing of his application of citizenship, the respondent was only physically present in Canada for 66 days. From August of 1991 until August of 1995, he spent 1394 day in Hong Kong for personal and business reasons. During this period of time, he was frequently outside of Canada for lengthy periods of time. He was in Canada only on 8 occasions, for at most 10 days at any one time. He signed his application for citizenship 6 days after his return to Canada from his most recent trip to Hong Kong. |
| g) Between August of 1991 and August of 1995, the respondent was absent from Canada: between 91-08-08 to 91-08-30 for 22 days; between 91-09-10 to 92-02-21 for 164 days; between 92-02-27 to 93-01-18 for 326 days; between 93-01-26 to 93-09-11 for 228 days; between 93-09-21 to 93-11-12 for 52 days; between 93-11-21 to 94-04-22 for 152 days; between 94-04-27 to 95-10-27 for 183 days; between 94-11-06 to 95-022 20(sic) for 106 days; between 95-02-28 to 95-08-08 for 161 days. |
| h) At the time he signed his application for citizenship, the respondent"s parents and siblings had status in Canada. However, pursuant to the degree issued by the Government of Hong Kong, the respondent was divorced from his non-resident wife. |
| i) In support of his application, an unsigned and undated residency questionnaire was completed on the respondent"s behalf. Other various documents were also submitted on his behalf including, Federal and British Columbia individual income tax returns, real estate documents, non-resident business licenses, bank statements, drivers licenses, health, social insurance, library and visa cards obtained in Canada. |
j) The respondent had previously applied for Canadian citizenship. This application was refused on June 8, 1995. The refusal was upheld by this Court.
THE ISSUE
[3] The issue before this Court is whether the respondent satisfied the requirement prescribed under subsection 5(1)(c) of the Citizenship Act that within the four years immediately preceding the date of his application he had accumulated at least three years of residence in Canada.
[4] There is literally no basis for the respondent"s position. More and more Courts are coming around to the opinion expressed by my colleague Muldoon J. in Re Pourghasemi (1993) 19 Imm. L.R. (2nd) 259 (F.C.T.D.), see page 5 of the Applicant"s Memorandum of Law.
It is submitted that notwithstanding the different formulations of the residency test, the existing jurisprudence clearly indicates that an applicant for citizenship must demonstrate by objective facts, first, that they have established a residence of their own in Canada at least three years preceding their application and, second, that they have maintained their established residence throughout that time.
[5] The applicant makes the point that:
| Where an applicant has failed to first establish a Canadian residence prior to any absence from Canada during the four years preceding their application, the requirements of the Act have not been met. A mere intention to establish residence is insufficient. Actual residence must be established. |
| In Re: Papadogorgakis, Mr. Justice Thurlow, (as he then was), recognized the requirement of actual presence in Canada and indicated that departure from the strictness of that requirement could not only apply in a "close case", and only then, after the applicant had already established an extended physical and substantial presence in Canada before the time period prescribed under the Act. In that case, the applicant had been physically present in Canada for about 5 " years between the time he had entered Canada on a student visa and later applied for Canadian citizenship. |
| Re: Papadogorgakis, supra |
Recent jurisprudence of this Court has continued to emphasize the need for substantial physical presence in Canada. ...
[6] However in the final analysis, the matter has really been pre-delivered by my colleague Lutfy J. in Re Chung Shun Paul Ho, (F.C.T.D., January 9, 1997, T-1614-95). The concerns of Mr. Justice Lutfy in T-1614-95 apply to the evidence before the Court on the existing application for citizenship. He declared, as I do:
"It is plain and evident on the fact of the evidence that was before the Citizenship Judge that he fundamentally erred in his assessment of this case. The respondent did not satisfy the residency requirement of s. 5(1)(c) of the Citizenship Act .
[7] This appeal is allowed, and the decision of the Citizenship Judge is quashed.
OTTAWA, ONTARIO B. Cullen
March 1, 1999. J.F.C.C.