Date: 20000301
Docket: T-1616-98
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Applicant,
-and-
KEE KWONG CHAN,
Respondent.
REASONS FOR JUDGMENT
(delivered orally from the bench on February 22, 2000 in Toronto)
DAWSON J.
[1] This is an appeal pursuant to subsection 14(5) of the Citizenship Act brought on behalf of the Minister of Citizenship and Immigration from the decision of a citizenship judge dated June 30th, 1998, whereby the judge approved the respondent's application for a grant of citizenship.
[2] The respondent did not enter an appearance to oppose the appeal.
[3] At issue in the appeal is the determination of the citizenship judge that the respondent met the residence requirement of paragraph 5(1)(c) of the Citizenship Act. That paragraph requires that an applicant for citizenship accumulate at least three years of residence in Canada within the four years immediately preceding the application. The applicant applied for citizenship on January 16th, 1997. The record establishes that during the relevant time period the respondent was physically present in Canada for 748 days. He therefore had a shortfall of 347 days with respect to the minimum requirement. The respondent's absences from Canada during the four-year period prior to his application are as follows:
Period of absence Number of days
93/05/26 to 93/11/05 163
94/02/28 to 94/04/22 53
94/06/20 to 94/11/20 153
95/02/26 to 95/09/21 207
95/11/25 to 96/02/22 89
96/09/15 to 96/11/01 47
The first two absences were for trips to Hong Kong. In each of the last four absences the application for citizenship indicates that the applicant was in "Hong Kong/U.S.A.". In every case the reason for the absence was stated to be "business/stay with old parents".
[4] In Lam v. The Minister of Citizenship and Immigration, [1999] F.C.J. No. 410, T-1310-98 (March 26, 1999) (F.T.D.), Justice Lutfy (as he then was) reviewed the three lines of jurisprudence of this Court regarding the interpretation of the residence requirement of paragraph 5(1)(c) of the Citizenship Act. In consequence of that jurisprudence he stated, at paragraph 14:
| In my opinion, it is open to the citizenship judge to adopt either one of the conflicting schools in this Court and, if the facts of the case were properly applied to the principles of the chosen approach, the decision of the citizenship judge would not be wrong. |
[5] With respect to the standard of review on an appeal from a citizenship judge to this Court he concluded, at paragraph 33:
| The appropriate standard, in these circumstances, is one close to the correctness end of the spectrum. However, where citizenship judges, in clear reasons which demonstrate an understanding of the case law, properly decide that the facts satisfy their view of the statutory test in paragraph 5(1)(c), the reviewing judges ought not to substitute arbitrarily their different opinion of the residency requirement. It is to this extent that some deference is owed to the special knowledge and experience of the citizenship judge during this period of transition. |
[6] In the case before me the reasons issued by the citizenship judge are the standard printed form reasons to which the judge added handwritten notes. The standard printed form reasons state "After considering the residence questionaire [sic ] and other items and documentation submitted and through credible declartation [sic] of intent and the facts presented by the applicant at the hearing I have concluded that the applicant has established a residential base. . .and a centralized mode of living in Canada on June 21st, 1992 and the applicant has continued to maintain a residential base and a centralized mode of living in Canada and that during such temporary absences the applicant had no intention of residing in any country other than Canada."
[7] In the handwritten portion of the reasons the judge states:
| The applicant used to own a tailor [sic] in Hong Kong as well as in Toronto. He needed to travel to Hong Kong once in a while to manage the tailor shop, which he sold to his friend. Currently he manages his tailor shop in Toronto with his wife. He also took care of his elderly parents in Hong Kong. |
[8] The printed form reasons conclude that the applicant "fully meets the residence requirement of paragraph 5(1)(c) of the Act and within the framework outlined by Associate Chief Justice Thurlow (as he then was) in Re: Papadogiorgakis, No. T-872-78."
[9] The principle set forth in Papadogiorgakis was restated by Justice Dubé in Re: Ho, [1997] F.C.J. No. 1747, T-2871-96 (December 15, 1997) (F.T.D.) as follows:
| As I have stated on many occasions, residency in Canada for the purposes of citizenship does not imply full time physical presence. The place of residence of a person is not where that person works but where he or she returns to after work. Hence, an applicant for citizenship who has clearly and definitively established a home in Canada with the transparent intention of maintaining permanent roots in this country ought not to be deprived of citizenship merely because he has to earn his livelihood and that of his family by doing business offshore. The most eloquent indicator of residency is the permanent establishment of a person and his family in the country. |
[10] It was open to the citizenship judge to adopt this school of jurisprudence construing the residence requirement. There remains to consider whether the facts of the case were properly applied to the principles of this approach.
[11] As noted above, no reasons were given for the conclusion in the printed form reasons that the applicant established a centralized mode of living in Canada as of June 21st, 1992. Such conclusion is not palpably supported by the written record before the citizenship judge.
[12] With respect to the explanation given for the extended absences from Canada, the written submissions made on the applicant's behalf by his counsel before the citizenship judge was that the absences "were of temporary duration to Hong Kong to close his business as a tailor and were extended for the purpose of providing physical and emotional assistance to his elderly parents who cannot travel to Canada due to their advancing years". No explanation appears for the citizenship judge's conclusion that the applicant was required to travel to Hong Kong "to manage the tailor shop, which he sold to a friend".
[13] In my view, credible testimony would have been required to reconcile the written evidence before the citizenship judge as to the applicant's income for the period from 1994 to 1996 with the assertion that the applicant had permanently established himself in Canada but was absent as he was required to manage the tailor shop which he sold to a friend at some unspecified time.
[14] There is no evidence before this Court as to what oral evidence, if any, was given to the citizenship judge to augment the written record.
[15] As to the explanation that the applicant took care of his elderly parents in Hong Kong, the only evidence before this Court on the appeal as to any need for the applicant to take care of his elderly parents is a letter from Dr. Chan of the Kwong Wah Hospital in Hong Kong certifying as the applicant's mother's current medical condition and her condition in March and December of 1997, which evidence is not relevant to the four-year period immediately preceding the application for citizenship.
[16] No evidence appears on the record as to the cause or the duration of the applicant's absences in the United States.
[17] Given the evidence contained in the written record before the citizenship judge, the lack of evidence as to what, if any, other evidence was put before the citizenship judge, and the lack of reference in the reasons of the citizenship judge to evidence supporting all of the judge's conclusions, I have been persuaded that this appeal should be allowed.
[18] The decision of the citizenship judge dated June 30th, 1998 is quashed.
_________________________
Judge
Ottawa, Ontario
March 1, 2000