Date: 19990316
Docket: T-408-98
IN THE MATTER OF THE CITIZENSHIP ACT,
R.S.C., 1985, c. C-29
AND IN THE MATTER OF an appeal from the
decision of a Citizenship Judge
AND IN THE MATTER OF
YAU HAN LILIANNA YOUNG
Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
EVANS J.:
[1] Lilianna Young was born in Macao, but has lived most of her life in Hong Kong, where she is qualified as a certified accountant and was employed by Century City Holdings Limited in the years 1990 to 1993 as a group financial controller.
[2] Because of the political uncertainty hanging over the future of Hong Kong, in 1990 Ms. Young applied to immigrate to Canada. In preparation for her intended move she purchased a condominium in Toronto in 1988, which was completed in 1991. In June 1993 she was granted a visa entitling to her enter Canada as a permanent resident.
[3] At Ms. Young"s request, Century City agreed to transfer her as of December 1, 1993 to one of its Canadian subsidiaries, Royal Pacific Holdings Limited, to be financial controller of the hotel that it owned in Toronto, the Royal Constellation Hotel. However, this request was conditional on Ms. Young"s immediately returning on secondment to Century City in Hong Kong to train her successor and to establish a financial control system.
[4] Ms. Young arrived in Toronto on November 16, 1993, and in the fifteen days that she was here she opened bank accounts, and obtained a driver"s licence and credit cards. For these two weeks she stayed at the Royal Constellation and started familiarize herself with the hotel"s operation. The condominium that she had purchased had been leased to tenants since its completion in 1991. I should also note here that in 1995 Ms. Young purchased a second condominium in Toronto in which she said that she intends to reside.
[5] In November 1996 she applied for Canadian citizenship, but her application was not approved by the Citizenship Judge, on the ground that Ms. Young had not satisfied the residence requirement of paragraph 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29 [as amended]. This provides that in the four years immediately preceding the date of application for citizenship, an applicant must have "accumulated at least three years of residence in Canada". Ms. Young appealed from the Citizenship Judge"s decision before the Federal Court Rules, 1998 SOR/98-106 came into effect.
[6] In the three years from the date of her arrival in Canada in November 1993 until her application for citizenship, Ms. Young was present in Canada for only 41 days. For the remainder of the time she has been in Hong Kong, working for Century City; she was asked by Century City to remain beyond the originally agreed period of two years, in order to assist the company at a time of high turn-over of staff. In addition to the fifteen days that she was in Toronto after she first arrived in 1993, she spent 17 days in 1995 and 9 days in 1996. The purposes of these visits, she testified, were part leave, part business.
[7] Recognizing that Ms. Young"s actual connections to Canada could not be said to be strong, her counsel urged me to adopt what he termed the "flexible approach" to the residence requirement of the Citizenship Act that, he argued, was apparent in some decisions of this Court. He referred me, in particular, to Re Hsu (1994), 25 Imm. L.R. (2d) 251 (F.C.T.D.), and Re Ferreira (F.C.T.D.; T-2080-91; June 9, 1992), where the Court was prepared to approach the interpretation of the statutory requirements of section 5 in a manner that, as Joyal J. put it in Hsu (at page 256),
has also respected individual needs to minimize economic loss or to assure economic survival or to enhance career opportunities.
[8] In my opinion, however, the dominant trend in the more recent jurisprudence of this Court has been to interpret the residence requirement along the lines first established by Reed J. in Re Koo, [1993] 1 F.C. 286 (F.C.T.D.). In particular, the Court has approached paragraph 5(1)(c) by asking whether, in Reed J."s words in Re Koo (at page 293), Canada is where the applicant "regularly, normally or customarily lives", or whether "Canada is the country in which he or she has centralized his or her mode of existence".
[9] I note, also, that in the very recent case of Ho v. Minister of Citizenship and Immigration (F.C.T.D.; T-1683-96; March 1, 1999), Cullen J., who seems previously to have been a proponent of the more "flexible" approach (see, for example, Re Ng) (F.C.T.D.; T-2689-95; October 22, 1996)), summarized the present law as follows:
More and more courts are coming around to the opinion expressed by my colleague Muldoon J. in Re Pourghasemi (1993), 19 Imm. L.R. (2d) 259...
| "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." |
[10] I am not persuaded on the evidence before me that Ms. Young established a residence in Canada in the two weeks that she was here in November 1993. She did not move her belongings to Canada; she did not move here with any family members; and she lived at the hotel, where she was employed. None of this, of course, is at all surprising since she had already agreed to return to Hong Kong to resume her employment with Century City on December 1, 1993, and to remain there for the next two years.
[11] Residence must be established de facto. A mere intention to make Canada one"s home is not enough. Neither Ms. Young"s subsequent visits to Toronto of 17 days and 9 days, nor her annual filing of Canadian income tax returns, were sufficient to establish a residence, nor, I might add, to maintain a residence if she had already established one.
[12] In my opinion, the Citizenship Judge manifestly reached the correct conclusion when he decided that Ms. Young had not satisfied the residency requirement of paragraph 5(1)(c) of the Citizenship Act. For these reasons, the appeal is dismissed.
"John M. Evans"
J.F.C.C.
TORONTO, ONTARIO
March 16, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-408-98
| STYLE OF CAUSE: YAU HAN LILIANNA YOUNG |
and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: TUESDAY, MARCH 16, 1999
PLACE OF HEARING: TORONTO, ONTARIO
| REASONS FOR JUDGMENT BY: EVANS J. |
DATED: TUESDAY, MARCH 16, 1999
APPEARANCES: Mr. Paul J. Bates
Mr. Darren J. Noseworthy
For the Appellant
Mr. Ian Hicks
For the Respondent
Mr. Peter K. Large
Amicus Curiae
SOLICITORS OF RECORD: Lerner & Associates
Barristers & Solicitors
130 Adelaide Street West
Suite 2400, Box 95
Toronto, Ontario
M5H 3P5
For the Appellant
| Solicitors of Record ... continuation Morris Rosenberg |
Deputy Attorney General
of Canada
For the Respondent
| Peter K. Large |
Barrister & Solicitor
610-372 Bay St.,
Toronto, Ontario
M5H 2W9
FEDERAL COURT OF CANADA
Date: 19990316
Docket: T-408-98
| IN THE MATTER OF THE CITIZENSHIP ACT, R.S.C., 1985, c. C-29 |
| AND IN THE MATTER OF an appeal from the decision of a Citizenship Judge |
AND IN THE MATTER OF
YAU HAN LILIANNA YOUNG
Appellant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER