Date: 19990105
Docket: T-770-98
BETWEEN:
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
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
AND
CHOU, TSONG CHON
Respondent
REASONS FOR JUDGMENT
TEITELBAUM J.
[1] This is an appeal by The Minister of Citizenship and Immigration (Minister) from a decision of a Citizenship Judge dated March 3, 1998 wherein the said Citizenship Judge "decided that the Applicant fully meets the residence requirement of Section 5(1)(c) of the Act (Citizenship Act) within the framework outlined by Associate Chief Justice Thurlow (as he then was) in Re: Papadogiorgakis - No. T-872-78".
[2] Mr. Justice Nadon in the case of Chi Hung Paul Cheung [1998] F.C.J. No. 813 - Court file No. T-2841-98, states, at page 2 and 3, paragraphs 5, 6 and 7,
| Paragraph 5(1)(c) of the Act makes it clear that a person must be resident in Canada for at least three years prior to his application for citizenship. As the concept of "residence" is not defined under section 2(1) of the Act, it has given rise to considerable debate in this Court. In Re Papadogiorgakis [1998] 2 F.C. 208, Thurlow J. (as he then was) held that physical presence in Canada was not always required in order to establish residence within the meaning of the Act. At page 214 he put it as follows: |
| A person with an established home of his own in which he lives does not cease to be resident there when he leaves it for a temporary purpose whether on business or vacation or even to pursue a course of study. The fact of his family remaining there while he is away may lend support for the conclusion that he has not ceased to reside there. The conclusion may be reached, as well, even though the absence may be more or less lengthy. It is also enhanced if he returns there frequently when the opportunity to do so arises. It is, as Rand J. appears to me to be saying in the passage I have read, "chiefly a matter of the degree to which a person in mind and fact settles into or maintains or centralizes his ordinary mode of living with its accessories in social relations, interests and conveniences at or in the place in question. |
| It is clear from Mr. Justice Thurlow's comments that before the days of absence of a person can be considered for the purposes of the residence requirements under the Act, that person must have established his or her home in this country before departing. In the present matter, there cannot be any doubt, in my view, that the respondent never established his home in Canada before he departed on his numerous trips to Hong Kong. What the evidence reveals is that the respondent simply moved his family from Hong Kong to Canada and then returned to Hong Kong to continue his business operations in that country. As the respondent never established his home in Canada he cannot, in my view, take advantage of the days physically spent outside of Canada to meet the requirements of paragraph 5(1)(c) of the Act. |
| To construe paragraph 5(1)(c) of the Act otherwise would constitue a re-writing of the paragraph which Parliament has not authorized me to do. I agree entirely with the comments made by Pinard J. in Re Chow, where he states: |
| There is jurisprudence which does not require physical presence of the applicant for citizenship for the entire 1,095 days, when there are special or exceptional circumstances. However, in my view, too long an absence from Canada, albeit temporary, during that minimum period of time as in the present case, is contrary to the purpose of the residency requirements of the Act. Indeed, the Act already allows a person who has been lawfully admitted to Canada for permanent residence not to reside in Canada during one of the four years preceding the date of that person's application for citizenship. |
[3] It is important to note from the above that a person who does not have the required number of days wherein he is physically present in Canada can still be a resident in Canada if he has established a home of his own in Canada and that he leaves it for a temporary purpose after first establishing his home.
[4] The evidence in the case at bar clearly indicates that the Respondent never established his home in Canada.
[5] The record indicates that the Respondent came to Canada as a landed immigrant on February 8, 1993. He came with his wife and daughter. On the same day that they arrived in Canada, the Respondent left Canada to return to Taiwan from where he came in order to enable his daughter to complete her primary education.
[6] On this occasion he returned to Canada 156 days later, that is, on July 14, 1993. He then left Canada on October 4, 1993 for 12 days, on December 27, 1993 for 18 days and continued being absent, from time to time, to October 31, 1996 for a total absence of 715 days.
[7] Between February 8, 1993 and October 31, 1996, the Respondent spent more time outside of Canada than within Canada.
[8] I am satisfied, because I have no evidence to the contrary that all of the Respondent's trips outside of Canada were for business purposes, other than the first trip. What I have difficulty in accepting is that after making all those trips "for business purposes" and there were at least 16, the Respondent never earned more than $14,000. per year, most years he earned much less than $14,000. per year.
[9] The evidence before me is that other than the fact that the Respondent's wife and child are in Canada, the Respondent has no ties to Canada.
[10] The Respondent made no evidence to satisfy me of any permanent tie to Canada.
[11] In the case of Wen-Lung Chen (Spencer) T-137-98, October 27, 1998 I state, at page 3, paragraph 8:
| In a case very similar to the facts found in the case at bar, Re. John Tiny Min Hui (1994), it is stated in the held, "Canadianization" of permanent residents cannot be accomplished abroad". On page 14, Mr. Justice Muldoon goes on to say, as the purpose for the residency requirement, "it (the Citizenship Act) intends to confer citizenship on applicants who have "Canadianized" themselves by residing among Canadians in Canada. This cannot be accomplished abroad. Nor can it be accomplished be depositing bank accounts, rental payment (or being to owner of a condo) furniture, clothing goods and more importantly, spouses and children - in a word, all except oneself - in Canada while remaining personnally outside Canada". |
[12] The same applies in the case at bar. The Respondent himself was only in Canada for a limited period of time. The fact that the Respondent joined many clubs means nothing when the Respondent fails to show that after joining these clubs, he participated in them. No evidence of participations was made.
[13] Individuals such as the Respondent would, I am satisfied, make good Canadian citizens if they would first understand that Canadian citizenship is not "purchased" but earned. It must be understood that it is a privilege to be a Canadian citizen.
[14] The appeal is allowed and the decision of the Citizenship Judge is set aside.
Max M. Teitelbaum
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 19990105
Docket: T-770-98
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Appellant
AND
CHOU, TSONG CHON
Respondent
REASONS FOR JUDGMENT
FEDERAL COURT OF CANADA
TRIAL DIVISION DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-770-98
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Appellant
AND
CHOU, TSONG CHON
Respondent
PLACE OF HEARING: Montreal (Quebec)
DATE OF HEARING: January 4th, 1999
REASONS FOR JUDGMENT OF TEITELBAUM, J.
DATED: January 5th, 1999
APPEARANCES:
Mrs. Pascale Catherine Guay for the Appellant
Mr. Tsong Chon Chou Respondent on his own behalf
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada for the Appellant