Date: 19990728
Docket: T-451-99
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
HSIU YING WU
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
EVANS J.
[1] Hsiu Ying Wu acquired permanent resident status in Canada in February 1992 as the spouse of Cheng-I Wu, who was admitted as an immigrant in the investor category.
[2] She applied for Canadian citizenship in May 1997 and her application was approved by a Citizenship Judge in January 1999. The Minister has appealed from this decision under subsection 14(5) of the Citizenship Act, R.S.C., 1990, c. C-29 on the ground that the Citizenship Judge erred in law when he found that Ms. Wu had satisfied the three years" residence requirement prescribed by paragraph 5(1)(c ) of the Act.
[3] The respondent did not appear at the hearing and was not represented. She had been served personally with notice of the appeal, and the applicant"s record and the notice of the time and date of the hearing had been sent by registered mail to Ms. Wu"s last known address.
[4] Counsel for the Minister advised me that on July 8, 1999 he had spoken by telephone to a person who identified herself as Lauren Wu, a daughter of the respondent. She informed counsel that the family had returned from vacation and that she was aware that there were documents for them from the Federal Court in connection with her mother"s appeal. She asked counsel whether her mother could be represented at the hearing by a consultant. Counsel said that Ms. Wu could be represented by her lawyer or could represent herself.
[5] On July 16, 1999 counsel said that he received a telephone call from a person who said that he was an employee of a law firm, which he named, who acted for Ms. Wu. He told counsel that no lawyer at the firm would be available to represent Ms. Wu until December, and that he would instruct her not to attend the hearing scheduled for today. Counsel advised the person to whom he was speaking that the Court might proceed to judgment in the appeal in Ms. Wu"s absence.
[6] I am satisfied that Ms. Wu was fully aware that the hearing of the appeal was due to be held today and that she had been properly served. In the circumstances set out above I decided to hear and determine the appeal.
[7] The Citizenship Judge gave the following reasons for his decision:
Applicant is 544 days short of the required 1095. She landed in Feb. 1992 with husband & 2 children. The 2 children are Canadian citizens, University of Toronto students, the husband he abandoned Canada, given up landed status & has not been in Canada for 4 years. The applicant travels back & forth between Canada and Taiwan to maintain her marriage and to look after her children.
She owns an apartment in North York where she lives with her two children. She has a car, a driver"s license, filed income tax each year, OHIP, SIN, etc. Her English is very good.
It appears to me that she is caught in a dilemma with husband & her life in Canada. She owns all the property & investments in Canada. She has met residence requirements as per Thurlow.
[8] I have only to add to this statement of the facts that the pattern of Ms. Wu"s absences from Canada have not changed significantly over the years. She was in Canada for the first 15 months after she became a permanent resident, but since then has been away seven times, generally for substantial periods of time, on vacation or visiting her husband in Taiwan.
[9] The statement by the Citizenship Judge that "she has met residence requirements as per Thurlow" is a reference to Re Papadogiorgakis, [1978] 2 F.C. 208 (F.C.T.D.), where Thurlow A.C.J. held that in a "close case" a person who had established a residence in Canada might be found to have maintained it for the requisite number of days despite physical absences from Canada during the relevant period. The appellant in that case had been present in Canada as a student for more than three years before becoming a permanent resident. In the period relevant to his acquisition of citizenship, the appellant had been absent from Canada "for the temporary purpose of pursuing his studies ... without closing out or breaking the continuity of his maintaining or centralizing his ordinary mode of living" in Canada.
[10] On the very different facts before the Citizenship Judge in this case, however, it was unreasonable to conclude that, on the basis of the principles established in Papadogiorgakis and the subsequent case law, Ms. Wu had satisfied the statutory residence requirement.
[11] She was absent from Canada for approximately half of the time that she was required to be resident. Despite the fact that she has a house here and her children attend university in Toronto, the reasons for her absences, as well as their duration and pattern, indicate that she has not maintained her residence in Canada during the prescribed period. Her connection with Canada seems no stronger than her connection with Taiwan. Hence, her ordinary mode of living cannot be said to be centralized here.
[12] For these reasons the appeal is allowed and the decision of the Citizenship Judge is set aside.
"John M. Evans"
J.F.C.C.
Toronto, Ontario
July 28, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: T-451-99 |
| STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| - and - |
| HSIU YING WU |
| DATE OF HEARING: WEDNESDAY, JULY 28, 1999 |
| PLACE OF HEARING: TORONTO, ONTARIO |
DRAFT REASONS FOR JUDGMENT
| AND JUDGMENT BY: EVANS J. |
DATED: WEDNESDAY, JULY 28, 1999
APPEARANCES: Stephen H. Gold
| For the Applicant |
| No One Appearing |
| For the Respondent |
SOLICITORS OF RECORD: Morris Rosenberg
Deputy Attorney General of Canada
| For the Applicant |
| Hsiu Ying Wu |
| 1114-7 Bishon Avenue |
| North York, Ontario |
| M9M 4J4 |
For the Respondent
| FEDERAL COURT OF CANADA |
Date: 19990728
Docket: T-451-99
Between:
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Applicant
- and -
| HSIU YING WU |
Respondent
REASONS FOR JUDGMENT
| AND JUDGMENT |