Date: 19991123
Docket: T-1952-98
BETWEEN:
WING LUNG WOO
Applicant
and
THE MINISTER OF CITIZENSHIP and IMMIGRATION
Respondent
REASONS FOR ORDER
O"KEEFE, J:
[1] This is an appeal by the applicant Wing Lung Woo pursuant to subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 and section 21 of the Federal Court Act. The appeal is from a decision of Citizenship Judge Doreen Wicks dated August 17, 1998 wherein the Judge refused to approve the applicant"s application for Canadian Citizenship because the applicant had not "established a residence in Canada by virtue of a centralized mode of living in Canada in the four years preceding your application for Canadian Citizenship".
[2] The applicant was a resident of Hong Kong who was landed on January 22, 1993.
[3] During the three year period preceding the date of the applicant"s application for citizenship the applicant was absent from Canada for seven hundred and ninety-two (792) days. The applicant"s application was dated August 15, 1997 and filed on August 26, 1997.
[4] From the material filed pursuant to Rule 319 of the Federal Court Rules the applicant was absent mainly due to the following reasons:
| a) business trips; |
| b) visiting his sick mother in Hong Kong; |
| c) tending to the disposal of his wife"s assets when she came to Canada; |
| d) disposing of his mother"s assets when she died. |
[5] Prior to landing in Canada, the applicant resigned from his position as Sales Manager for Shing Cheong Hong Provision Co. Ltd.
[6] Upon his arrival in Canada he set out to establish and did establish with his sister a Canadian company called I & L Trading Inc. which purchased Canadian products such as soybeans, wheat flour, lard, yeast, peanut butter, canned goods and other products from Maple Leaf Foods International. These goods were resold in the Far East by his Canadian company. The 1997-1998 sales were expected to be approximately $1,900,000. Previously he had sold these products through his employer"s Hong Kong company.
[7] The applicant has two children who were born and are living in Canada. He also has twelve relatives who are Canadian Citizens.
[8] Pages 6 and 56 of the Certified Tribunal Record details the applicant"s absences from Canada and the reasons for these absences.
[9] The applicant has investments in Canada and pays income tax in Canada as does his company.
[10] In June 1994, the applicant and his wife bought a home in Richmond Hill, Ontario.
[11] The applicant has an Ontario Hospital Insurance Plan card, a Social Insurance Number, a Driver"s License, Canadian credit cards and he has joined a local Chamber of Commerce.
LAW
[12] Paragraph 5(1)(c) of the Citizenship Act states:
| 5. (1) The Minister shall grant citizenship to any person who ... (c) has been lawfully admitted to Canada for permanent residence, has not ceased since such admission to be a permanent resident pursuant to section 24 of the Immigration Act, and has, within the four years immediately preceding the date of his application, accumulated at least three years of residence in Canada calculated in the following manner: (i) for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and (ii) for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence; |
| 5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois_: ... c) a été légalement admise au Canada à titre de résident permanent, n'a pas depuis perdu ce titre en application de l'article 24 de la Loi sur l'immigration, et a, dans les quatre ans qui ont précédé la date de sa demande, résidé au Canada pendant au moins trois ans en tout, la durée de sa résidence étant calculée de la manière suivante_: i) un demi-jour pour chaque jour de résidence au Canada avant son admission à titre de résident permanent, (ii) un jour pour chaque jour de résidence au Canada après son admission à titre de résident permanent; |
ANALYSIS AND LAW RESPECTING RESIDENCY
[13] The Citizenship Judge refused to approve the application for Canadian Citizenship made by the applicant because she believed that he did not meet the residency requirements found in subsection 5(1) of the Citizenship Act. She found in part at page 2 of her decision as follows:
| "After having considered the evidence that I received both by way of testimony and documentation I could not find that you have established a residence in Canada by virtue of a centralized mode of living in Canada in the four years preceding your application for Canadian Citizenship". |
[14] The Citizenship Judge found that the applicant did not meet the requirements of residence under paragraph 5(1)(c) of the Citizenship Act.
[15] This Court has held that the words "residence" and "resident", as used in paragraph 5(1)(c ) of the Citizenship Act, are not limited to actual presence in Canada. This Court has held that applicants in certain circumstances can have a home in Canada and be absent from that home for periods of time and still have that time qualify under subsection 5(1) of the Citizenship Act. In Re Wang, (May 8, 1996), T-1085-95 (F.C.T.D.), Cullen, J. stated at pages 3 and 4:
| The leading case concerning residency is Re Papadogiorgakis, [1978] 2 F.C. 208 (T.D.) at 213-214, Associate Chief Justice Thurlow, as he then was, stated: |
...
| It seems to me that the words "residence" and "resident" in paragraph 5(1)(b ) of the new Citizenship Act are not as strictly limited to actual presence in Canada throughout the period as they were in the former statute but can include, as well, situations in which the person concerned has a place in Canada which is used by him during the period as a place of abode to a sufficient extent to demonstrate the reality of his residing there during the material period even though he is away from it part of the time. This may not differ much from what is embraced by the exception referred to by the words "(at least usually)" in the reasons of Pratte, J. but in a close case it may be enough to make the difference between success and failure for an applicant. |
| 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". |
| In the case of Re Koo, [1993] 1 F.C. 286 (T.D.) at 293, Madame Justice Reed thoroughly surveyed the jurisprudence concerning residence and summarized the different formulations for determining whether an appellant was resident in Canada, despite a physical absence: |
| The conclusion I draw from the jurisprudence is that the test is whether it can be said that Canada is the place where the applicant "regularly, normally or customarily lives". Another formulation of the same test is whether Canada is the country in which he or she has centralized his or her mode of existence. |
| To ascertain whether an appellant "regularly, normally or customarily lives" in Canada, Her Ladyship also suggested at 293-294 six questions which could be used by the Court as guidance in reaching a conclusion on residency: |
| (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 1,095-day total it is easier to find deemed residence than if those absences ae 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? |
| Apart from the Koo "place of living test", the Court has also used four other formulations for determining residency. Under the "reason test", the reason for the appellant"s physical absence from Canada is considered. If the absence was temporary and involuntary in nature -- such as caring for a sick relative or attending school abroad -- the appeal is usually allowed. Pursuant to the "intention test", the Court must determine whether the appellant has demonstrated the intention to establish and maintain a home in Canada. The Court has also used a "three-part test": the appellant must have established a residence in Canada, maintained a pied-à-terre in Canada, and intended to reside in Canada. Finally, the Court has referred to the "indicia of residency" and the "quality of attachment", noting that the stricter test, the quality of attachment, is gaining strength. |
Justice Cullen further stated at page 6 of the decision:
| "As my colleague, Noël, J. wrote in Stephen Yu Hung Lai , (F.C.T.D.) T-2258-93: |
| In cases where physical absence is encountered during a statutory period, proof of continued residence will require evidence as to the temporary nature of the absence, a clear intent to return and the existence of sufficient factual ties with Canada to assert residence in fact during the period ... where a businessman established Canada as his place of abode by setting up his matrimonial home and family there he is permitted to travel within reason to earn a living. |
DECISION
[16] There is no doubt that the Citizenship Judge was faced with an applicant for citizenship who spent extended periods of time absent from Canada in the four years immediately preceding his application for citizenship. However it is important to look at the reasons for these absences from Canada and to determine whether the applicant "regularly normally or customarily" lived in Canada.
[17] For each of the applicant"s absences from Canada between November 18, 1993 and June 26, 1997 one of the factors listed is the illness of his mother (pages 6 and 55 of the Certified Tribunal Record).
[18] The other reasons for the absences may be summarized as follows:
1) business
2) disposal of assets
3) marriage
4) helping wife landing
5) death of his mother
[19] The applicant did the following:
| 1) He resigned his position with his employer before coming to Canada. |
| 2) He formed a Canadian company along with his sister shortly after he arrived in Canada. |
| 3) His company purchased some products from Maple Leaf Foods International and the products were resold in the Far East. The 1997-1998 sales of the company were expected to be approximately $1,900,000. The applicant Mr. Woo is the General Manager of the Canadian company. |
| 4) The applicant and his wife bought a home in Richmond Hill, Ontario in June 1994. His wife and two children also reside there and are Canadian Citizens. |
| 5) The applicant has bank accounts and investments in Canada. Both he and his company pay income tax in Canada. |
| 6) The applicant joined his local Chamber of Commerce. |
| 7) The applicant has left Canada with a series of Returning Resident Permits issued under section 26 of the Immigration Regulations 1978. |
[20] To repeat the conclusion stated by Madam Justice Reed in Re Koo, supra, at page 293:
| The conclusion I draw from the jurisprudence is that the test is whether it can be said that Canada is the place where the applicant "regularly, normally or customarily lives". Another formulation of the same test is whether Canada is the country in which he or she has centralized his or her mode of existence. |
From the material filed both by way of testimony and by documentation it is my view that the applicant meets the test stated by Madame Justice Reed as:
| 1) He was in Canada since January 22, 1993, then left for the United States for vacation for two days and returned to Canada and stayed until November 18, 1993, when his first absence in the relevant four year period commenced. |
| 2) His wife and family lived in Canada. |
| 3) His pattern of physical absence from Canada showed an intention to return home. As he obtained Returning Resident Permits, he is not merely visiting the country. His wife and family live in Canada and he has no other residence. His Canadian company buys products in Canada and resells the products in the Far East. He divested himself of his assets and his employment in Hong Kong. |
| 4) The applicant is short of the 1,095 days request of the Citizenship Act by 427 days but on each of the absences he was partly on business and partly visiting a sick mother who had cancer. The absences were also to sell his mother"s assets after her death on May 18, 1997. |
| 5) Much of the physical absence was caused by the illness and death of the applicant"s mother. This certainly is not a recurring event. It is not unreasonable for a person to spend time with an ill parent, in fact it is very reasonable. The applicant also spent time on business outside of Canada. This is to be expected when the applicant"s company by whom he is employed sells to the Far East market. |
| 6) The applicant has a more substantial connection with Canada than any other country. He jointly owns a home in Canada with his wife. His wife and children are Canadians, his company is a Canadian company and both he and his company pay Canadian income tax. |
[21] The above are applications of the facts to this case to the factors listed by Madam Justice Reed at pages 293-294 of her decision in Re Koo, supra.
[22] It is my opinion that the decision of the Citizenship Judge should be reversed on the basis of reasonableness, i.e. was it a reasonable decision? It is my opinion that based on the basis of the above analysis it was not reasonable for the Citizenship Judge to find that the applicant did not meet the requirements of residence pursuant to paragraph 5(1)(c) of the Citizenship Act and to find that the applicant had not "established a residence in Canada by virtue of a centralized mode of living in Canada in the four years preceding your application for Canadian Citizenship".
[23] From the analysis carried out above I am of the opinion that the applicant has centralized his mode of existence in Canada and that the absences from Canada were for special temporary purposes and his business trips were to carry on the business activity of his company and as such should count for the necessary three years of residence in Canada within four years immediately preceding the date of his application for Citizenship.
[24] My conclusion is that the applicant meets the residence requirements of paragraph 5(1)(c) of the Citizenship Act.
[25] The appeal is therefore allowed.
"John A. O"Keefe"
J.F.C.C.
Ottawa, Ontario
November 23, 1999