Date: 20000718
Docket: T-1574-99
BETWEEN:
HON SUM CHENG
Appellant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
ROULEAU, J.
[1] This appeal was brought by Mr. Chen pursuant to subsection 14(5) of the Citizenship Act, R.C.S. 1985, c. I-2, and section 21 of the Federal Court Act, R.S.C. 1985, c. F-7, from the decision of Citizenship Judge R. Roberti dated July 22, 1999, wherein he decided against the application of Hon Sum Cheng for a grant of Canadian citizenship under subsection 5(1) of the Citizenship Act.
[2] The appellant, a citizen of China, was born on October 27, 1950. He was granted permanent residence status in Canada on May 6, 1994 and on, July 5, 1998, he completed an application for Canadian citizenship. It disclosed his absences from Canada between November 8, 1994 and June 8, 1998, totalling 662 days. The citizenship office calculated that the appellant was absent from Canada for 988 days during the period from July 5, 1994 to July 5, 1998, and therefore was 623 days short of meeting the residency requirement under the Act.
[3] The appellant is a diamond dealer. He conducts his business from Hong Kong and hence travels extensively.
[4] The appellant"s wife and two children have become Canadian citizens.
[5] The question I must determine is whether the Citizenship judge erred in determining that the appellant had not satisfied the requirement in paragraph 5(1)(c) of the Act whereby he must accumulate at least three years, or 1095 days, of residence in Canada within the four years immediately preceding the date of his application for Canadian citizenship.
[6] The appellant submits that although the Act requires him to accumulate at least three years of residency in Canada within the four years immediately preceding the date of his application to obtain citizenship, the word residence does not necessarily require physical presence in Canada. He alleges that at all times he intended to maintain his residence in Canada and in light of the evidence he presented he was in fact a resident of Canada notwithstanding his work related absences.
[7] Prior to landing he purchased his home, brought all of his furniture in Canada, closed down his business in Hong Kong, arranged for his children to attend school, opened bank accounts, obtained his social insurance card, health card, driver"s licence and purchased a car. Upon his arrival and for a number of weeks he attempted to set up a diamond exchange business in Canada but was unable or unsuccessful. This being his trade, he then returned to the diamond market scene in Hong Kong. In order to survive he purchases and sells diamonds; he maintains his travel is not limited to Hong Kong but includes many other destinations such as the United States, Israel, the Phillippines and Korea. A careful examination of the travel documents indicated six trips to Hong Kong, eleven to Israel, and others to various other destinations including a great number to the United States.
[8] The respondent argues that I should not disturb the decision rendered by the Citizenship judge and the lack of the residency requirement should be sufficient to disallow this appeal. It is suggested that before leaving to resume his diamond business abroad the appellant had not established or maintain a residence in Canada. He argues that there is no evidence before the Court that the appellant looked for employment in Canada before resuming his career as a diamond dealer in Hong Kong.
[9] The Citizenship judge"s decision seems to premise his conclusion that subsection 5(1)(c) of the Citizenship Act must be strictly met. His reference to the jurisprudence seems to support the contention that Parliament allowed a four year period within which an applicant could establish residency and they allowed one year of absence during this period and the 1095 days of physical presence was a minimum. He goes on to say "At the hearing, it was clear that you hoped your shortage of residency days could be explained to the Court"s satisfaction. No doubt you are aware that under special circumstances, persons have been deemed to satisfy the intent of the residency requirement despite lengthy physical absences from Canada".
[10] The Citizenship judge goes on to write "You came to Canada in 1994 with your wife and children. You own a home in Markham. You were unable to find suitable employment in Canada and restarted your business in Hong Kong... Your wife and children stay in Canada while you are away. You also travel to Israel and Korea for business purposes... I am unable to approve your application as you would appear to be visiting Canada and have not centralized your mode of living in Canada."
[11] The jurisprudence is clear that before the term of 3 years or residency can be established and an exception allowed to the test under the Act, an applicant must first establish that he has centralized his mode of living in Canada.
[12] No doubt it is incumbent upon the appellant to show that the Citizenship judge exercised his or her discretion on a wrong principle or on a complete misapprehension of the facts or some other compelling reason before the Court would interfere.
[13] There are two schools of thought with respect to the interpretation of the residency clause and how strict or liberal one should interpret the requirements; the Citizenship judge may chose to adopt one or the other conflicting schools of thought. As Madam Justice Reed put it in the case In Re: Koo (T-20-92), she suggested a number of criteria that one should consider at page 4 of her decision:
| (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 1095 day total it is easier to find deemed residence than if 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: is it more substantial than that which exists with any other country. |
[1] The Citizenship judge does not provide a clear analogy in order to satisfy me that he possessed an understanding of the case law or that he had applied his interpretation of the facts on a more stringent view of the test in a reasonable manner. More particularly, he determines that Mr. Cheng has failed to establish Canada as his place of residence without in any way challenging the facts before him.
[2] In this case, the Citizenship judge does not appear to have focussed or comment on the circumstances of the applicant"s return to Hong Kong to resume his diamond trading business. He had initially come to Canada under the investor category, having committed some $250,000 to the investment program. He then sold his business in Hong Kong, moved his entire family to this country, purchased a home and attempted to find suitable employment.
[3] I am of the view that the facts reveal that the appellant did maintain sufficient ties with Canada during his absences.
[4] This appellant was physically present in Canada for a period of time before his absences during which time he attempted to find employment or set up a business in this country. His immediate family and dependents are residents and are citizens of Canada. His returns indicate returning home, not merely visiting this country. Without a doubt, the quality of the connection with Canada is sustained. It cannot be said that he centralized his mode of living in Hong Kong or any other country. His absences are for employment purposes.
[5] The appeal is allowed.
JUDGE
OTTAWA, Ontario
July 18, 2000