Date: 19981221
Docket: T-1345-98
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Appellant,
- and -
HIN KEUNG HUNG,
Respondent.
REASONS FOR JUDGMENT
ROULEAU, J.
[1] This is an application by the Minister for judicial review requesting that the decision of a Citizenship Judge be quashed on the basis that Mr. Hung did not meet the residency requirements pursuant to s. 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29.
[2] Mr. Hung, who was born in China, first entered Canada on January 26, 1993 as a visitor, at which point he decided to immigrate to Canada. In making this decision, he researched the auto industry and the rental real estate market. In February 1994, Mr. Hung purchased a house in West Vancouver. He opened bank accounts in February as well. He landed in Canada on May 10, 1994 under the investor category, accompanied by his wife and two children. A third child was born in Canada in 1996. Mr. Hung invested $250,000 in the Capital City Opportunities Fund Inc. in Prince Edward Island to obtain his immigrant visa. He also purchased real estate in downtown Toronto in 1994, which he eventually sold at a loss of $200,000 in December 1996.
[3] Mr. Hung applied for citizenship on July 16, 1997.
[4] Once landed, he purchased furniture, two cars, a stereo system and a computer. He obtained a Social Insurance Number and medical coverage. He also acquired his driver"s licence. He has credit cards and has paid income tax since 1994. Both older children attend school in Vancouver. His wife has relatives in Hong Kong, but Mr. Hung"s mother, three brothers and one sister are permanent residents of Canada. Mr. Hung does not own a home outside Canada. With the exception of two short visits to Hong Kong, Mr. Hung"s wife and children have not left Canada since landing and do not accompany him on his business trips. Mr. Hung always returns from his trips and did so on at least 20 different occasions.
[5] After an interview on May 6, 1998, the Citizenship Judge approved Mr. Hung"s application for citizenship. The judge held that Mr. Hung"s absences were frequent but short, and were a result of his Canadian export business. The judge "believed Mr. Hung is becoming integrated into Canadian society".
[6] The Minister appealed the decision of the Citizenship Judge on June 29, 1998.
[7] The applicant phrases the issue as follows:
| Has the respondent satisfied the requirement in s. 5(1)(c) of the Citizenship Act that within the four years immediately preceding the date of his citizenship application he accumulated at least three years, or 1095 days, of residence in Canada? |
[8] Under the new Rules, citizenship appeals are no longer trials de novo, but instead are now to proceed by way of application based on the record before the Citizenship judge: no longer may any new evidence be submitted before this Court. I also propose to look at the appropriate standard of review, given the fact that this would appear to be the first citizenship appeal to fall under the Federal Court Rules, 1998. The approach taken by counsel for the Applicant appeared to be as if this were a trial de novo. At no time were their submissions to the effect that the Citizenship Judge committed any error of fact or law.
[9] Under s. 18.1(4) of the Federal Court Act, pursuant to an application for judicial review, the Trial Division may grant relief to a party if (a) the tribunal exceeded its jurisdiction or refused to exercise its jurisdiction, (b) breached a principle of natural justice, (c) erred in law, or (d) based its decision on an erroneous finding of fact made in a perverse or capricious manner.
[10] Courts will almost never review findings of fact made by adjudicative decision-makers by the correctness standard. The decision-maker is often in a better position to determine issues of fact and credibility, having heard and seen the witnesses first-hand. However, if a tribunal completely ignores important evidence without explanation, its decision may be set aside.
[11] Section 18.1(1)(d) essentially codifies the way the courts have viewed findings of fact made by administrative tribunals. In Kibale v. Transport Canada (1988), 90 N.R. 1 (F.C.A.) at 4, leave to S.C.C. refused (1989), 101 N.R. 238 (S.C.C.), Pratte J.A. stated that "even if the court is convinced that a decision is based on an erroneous finding of fact, it cannot intervene unless it is also of the opinion that the lower court, in making its finding, acted in a perverse or capricious manner, or without regard for the evidence." Not only must the finding of fact be perverse or capricious or without regard to the evidence before the adjudicator, this court must make such a finding if it is to interfere pursuant to s. 18.1(4)(d).
[12] The issue in the case at bar as to whether Mr. Hung has centralized his mode of living in Canada such that he continues his residence for the purposes of s. 5(1)(c) while abroad; this is a question of mixed law and fact. Certainly an examination of the factors relevant to the assessment of whether someone has a substantial connection with Canada is a factual matter. However, the determination as to whether those factors satisfy the test set out in Re Papadogiogakis, Re Koo and subsequent case law with respect to s. 5(1)(c), is a question of law. In light of the legal determination involved, while some deference must be accorded the factual findings of the Citizenship Judge in this case, the discretion to grant residency where Mr. Hung has been "deemed" physically present for the requisite time period should be held to a standard of correctness.
[13] While the decision of the Citizenship Judge is hardly a model of clarity and eloquence, it does not appear from the reasons that there was a complete misapprehension of the facts or that irrelevant factors were considered in coming to a decision.
[14] There were enough factors in this case to make a positive finding that Mr. Hung has a more substantial connection with Canada than any other country and that he has centralized his mode of existence in Canada. In examining the factors set out by Reed J. in Choi, Mr. Hung"s immediate and extended family reside in Canada, his children attend Canadian schools full time and his family does not accompany him on business trips. Mr. Hung"s only residence is in Canada and he purchased this residence prior to coming to Canada: for a similar situation in which citizenship was granted see Minister of Citizenship and Immigration v. Liao, Court File No. T-716-98, October 6, 1998 per Richard A.C.J. Mr. Hung"s export business appears to be more than a shell company. He has made substantial investments in Canada and is actively involved with the B.C. Racing Commission, both as an owner of race horses and as a developer of a horse breeding program with China.
[15] The Citizenship Judge found that Mr. Hung is becoming integrated into Canadian society. While some case law has held citizenship applicants strictly to the letter of the law under s. 5(1)(c) even if absences are temporary in nature, an equal if not greater amount of jurisprudence has determined, in some circumstances on less criteria than in Mr. Hung"s case, that citizenship should be granted if the quality of attachment to Canada is significant. In my opinion, the decision of the Citizenship Judge is correct and accordingly, the Court"s intervention is not warranted.
[16] For these reasons, the appeal is dismissed.
(Sgd.) "P. Rouleau"
Judge
Vancouver, British Columbia
December 21, 1998