Date: 20011102
Docket: T-1821-00
Neutral citation: 2001 FCT 1201
BETWEEN:
MIN HONE LIN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
(Rendered orally on October 25, 2001, as edited)
[1] The applicant appeals from a decision of Citizenship Judge R. Cruden dated August 17, 2000, wherein the Judge did not approve the applicant's application for a grant of citizenship under subsection 5(1) of the Citizenship Act.
[2] The issue is whether the Citizenship Judge erred in determining that the applicant failed to comply with the requirements of section 5(1)(c) of the Citizenship Act.
[3] The positive factors in favour of the applicant are set out in the refusal letter of the Citizenship Judge and they are in the third paragraph to which both of you have referred:
You first came to Canada 08 December1994 and according to your lawyer, this was a brief visit. You and your immediate family arrived and got landed 21 July 1995. Three weeks later, having enrolled your children in school, bought a house, a car and received shipment of furniture from Taiwan (not documented), you returned to Taiwan. During the four year period under consideration, you were landed 1097 days and made 11 trips outside of Canada, all but one to Taiwan for a total of 876 days. Except for your one vacation in the U.S.A., you listed "Business/Personal as reasons for absence. At your hearing, your legal representative stated that the main reasons for absence were to accept your responsibilities as only son, to look after your ailing grandmother, now deceased, and your elderly mother. Between trips outside of Canada, you returned regularly for brief periods to your home and family in Mississauga. These brief periods ranged from approximately one week, or two or three. Between the time of your last trip to Taiwan and applying for citizenship you remained here for 48 days or so. You are short 874 days of the required 1095. You have provided proof of purchase of a home for your family in Mississauga, which has been your only Canadian address. You also obtained the usual indicia of residence i.e.. Social Insurance Card, driver's licence, CAA membership, library card, bank letter etc. You held membership in Taiwan Entrepreneurs Society Taipei/Toronto 1997-1998. Your lawyer said that your continual sojourns in Taiwan were to assist with the care of your grandmother (who died 15 September 1998) and your mother who continues to reside there. As your mother's only son, your lawyer indicated that you are sharing the duties of caring for your mother along with your sisters. I understand you have four sisters who reside in Taipei.
[4] The Citizenship Judge concluded by saying:
While you have established a residence in Canada which you refer to as your matrimonial home, nevertheless, I have concluded that Canada is not "the place where you regularly, normally or customarily live", since in the period of 1097 days prior to applying for citizenship, you were absent from Canada 876 days and present 221 days. While your family seems to have "centralized their mode of living" in Canada, at present, your connection to Taiwan appears to be more substantial than your connection to Canada. Although you own property in Canada, your wife and children are in Canada, you provided copies of your Income Tax returns for 1997 and 1998 and formal indicia, the fact is that you have spent very little time here associating with Canadians in Canada. I have not approved this application under Sec. 5(1)(c).
[5] The applicant submits that when the Judge found the applicant had established residence in Canada he was obliged to treat the husband/applicant in the same way as the wife. There was no factual record before me to establish this proposition. Furthermore, the wife was absent from Canada some 400 days less than the husband/applicant and she did not engage in business in Taiwan according to the applicant's submissions. These are important differences. Moreover, I am not in a position to determine whether the Citizenship Judge erred on the wife's application as I do not have the Citizenship Judge's reasons before me nor would it be appropriate to comment on that since there is no appeal before me of her decision. The reason for absence in the applicant's case was "Business/Personal" whereas apparently it was "Personal" only in the wife's case. Thus the reason for absence is not identical.
[6] The standard of review is correctness as refined by Justice Lutfy, as he then was, in Lam v. Canada (MCI) (1999), 164 F.T.R 177 where he stated at paragraph 33:
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 opinions of the residency requirement.
[7] In the case before me the Citizenship Judge followed two lines of cases. The first test set out in Re Pourghasemi, [1978] 2 F.C. 208 requires physical presence for the required number of days. However, the Citizenship Judge went on and stated the Re Koo [1993] 1 F.C. 286 (T.D.) test which is more liberal. Madam Justice Reed in Re Koo at page 293 stated:
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.
The Citizenship Judge used similar words in the case before me when she stated: "Canada is not ‘the place where you regularly, normally or customarily live' " and then stated "While your family seems to have ‘centralized their mode of living' in Canada". This was an interpretation of paragraph 5(1)(c) of the Act reasonably open to the Citizenship Judge.
[8] In my view there is no indication that the Judge in this case did not properly apply the test set out in Koo. The Judge went through all the various factors and weighed them accordingly. The Judge acknowledged the family is in Canada, the family owns a matrimonial home in Canada and pays income tax. However the Judge found that these factors were outweighed by the lack of time spent here and the lack of association with other Canadians in Canada. Furthermore, the applicant's connection to Taiwan appeared to be more substantial than to Canada. These findings were open to the Citizenship Judge on the evidence.
[9] The appeal is dismissed.
"W.P. McKeown"
JUDGE
OTTAWA, ONTARIO
November 2, 2001