Date: 19990825
Docket: T-2263-98
BETWEEN:
KWOK LEUNG YIP,
Appellant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
REED J.
[1] This is an appeal pursuant to subsection 14(5) of the Citizenship Act of a decision of a citizenship judge refusing to grant the appellant citizenship because he had not satisfied the residence requirements of paragraph 5(1)(c) of the Citizenship Act. Paragraph 5(1)(c) requires that an applicant for citizenship shall (1) "have been lawfully admitted to Canada for permanent residence", (2) "not ceased since such admission to be a permanent resident pursuant to section 24 of the Immigration Act", and (3) "within the four years immediately preceding the date of his application, [have] accumulated at least three years residence in Canada ...".
[2] Subsection 24(1) of the Immigration Act states that a person ceases to be a permanent resident when the person "leaves or remains outside Canada with the intention of abandoning Canada as that person"s place of permanent residence ...", and subsection 24(2) provides that "where a permanent resident is outside Canada for more than one hundred and eighty-three days in any one twelve month period, that person shall be deemed to have abandoned Canada as his place of permanent residence ..." This presumption of abandonment can be rebutted if the person satisfies an immigration officer that, despite his lengthy absences from Canada, he did not intend to abandon Canada as his place of permanent residence. A permanent resident who expects to be outside Canada for more than half the year can obtain a returning resident permit and, in the absence of evidence to the contrary, it will be taken as proof that the person did not intend to abandon Canada. (The presence or absence of a person within the country for less than half a year also, of course, has income tax implications).
[3] Counsel for the appellant argues that the citizenship judge ignored relevant evidence in this appellant"s case because she did not mention in her reasons that: he had obtained returning resident permits for each of the three years in question; he had set out on his application both for permanent resident status and citizenship that he was stateless (he was born in the Peoples Republic of China and before coming to Canada had resided in Hong Kong); the applicant"s reason for leaving the country was work-related.
[4] Returning resident permits, as noted above, are relevant to whether the person"s lengthy absences from the country should be treated as an abandonment of permanent resident status; it tells a decision maker nothing about whether or not the third component of paragraph 5(1)(c) of the Citizenship Act (three years residence within the country) has been met. Thus, the absence of a reference in the citizenship judge"s reasons to the fact that the applicant had obtained returning resident permits is not an ignoring of relevant evidence when the issue before the judge is whether the three year residence requirement has been met.
[5] Also, the appellant"s alleged stateless status is irrelevant to whether he resided in Canada for three out of the four years preceding his application for citizenship. And, the appellant"s reason for being outside Canada for lengthy periods of time was not ignored by the citizenship judge. She mentions it in her reasons "it is apparent to me that you will need to travel to Hong Kong and China on a regular basis to support your family."
[6] Counsel for the appellant argues that the citizenship judge did not conduct a thorough analysis of the evidence, that her reasons are sketchy and show an incomplete understanding of both the law and the relevant facts. I agree that the reasons are sketchy and the analysis that is articulated may be incomplete. I am not persuaded, however, that the conclusion reached is wrong.
[7] The appellant finds himself in the position of many individuals who, as the main economic support of the family, find it difficult to reside for three out of four years in Canada, in order to comply with paragraph 5(1)(c). Their wives and children, however, are often in a position to be able to do so and obtain citizenship after residing here for three years. The wives and children can then, of course, remain out of the country for as long as they wish, taking up residence in any country for an indefinite period of time, and continue to be entitled to the protection of Canada as one of its citizens, and to re-enter Canada at any time. I can understand that a husband and father who is denied citizenship because of his difficulty in meeting the three year residency requirement, while his wife and children can do so, would consider the situation to be unfair.
[8] Nevertheless, as counsel for the Minister points out, the purpose of the three year requirement is to ensure that an applicant for citizenship has had at least some opportunity to develop connections with Canada " to try to prevent the obtaining of Canadian citizenship being the obtaining of a mere citizenship of convenience, where the person lacks any real attachment or commitment to this country.
[9] In the case of this appellant, counsel invites me to undertake the analysis that he contends the citizenship judge failed to undertake, and to assess the quality of the appellant"s connection with Canada in order to decide that the absences from the country should be treated as residence within it. He further invites me to consider the factors that were identified in Re Koo (1992), 19 Imm. L.R. (2d) 1 (F.C.T.D.) as relevant to that consideration. I shall do so but, as noted, that analysis does not lead to a conclusion that the citizenship judge reached the wrong conclusion.
[10] The first factor to consider is whether the citizenship applicant lived in Canada for a long period of time, before his first prolonged absence from the country. For example, in Re Papadogiorgakis (1978), 88 D.L.R. (3d) 243 (F.C.T.D.) the individual had lived in Canada for approximately six years before leaving to pursue academic studies in the United States. In the present case the appellant was not in this country for a lengthy period of time before his first absence. He was here for approximately four months before he found it necessary to leave for business purposes. This factor does not weigh in his favour.
[11] The second factor to consider is whether his immediate family is located in Canada. The appellant"s wife and children, as noted, have been located here since they were admitted as permanent residents. His parents have come. He has two sisters here. The presence of his immediate family members in Canada weighs in favour of treating his absences as residence within the country.
[12] A third factor is to consider whether the appellant is merely a few days short of the required 1095 days, or whether the shortfall is more extensive. In this case the absences are extensive. The appellant has been out of the country more often than he has been in it. He is 590 days short of the required number.
[13] A fourth factor is whether the absences are temporary in nature, or are likely to be of a more indefinite duration. The citizenship judge focussed her decision on this factor, and rightly so, in my view. The appellant himself stated in his submissions to the citizenship judge that as long as he remained in his present business (the design and sale of custom single micro-computer chips for customers in Mainland China), which is the source of his livelihood and where his expertise lies, his business travel requirements would make it impossible for him to fulfill the three year residency requirement. Thus, his absences are not likely to lessen in length or number, and his connection with Canada is not likely to grow in the immediate future.
[14] Counsel for the appellant referred me to a number of decisions that seem to indicate that when absence from the country is for business reasons the court has been treating these absences as presence within the country. Those decisions note that the alternative is that the individual in question cannot obtain citizenship short of closing down his business, or forsaking it for three years. But the residence requirement in the legislation is there for a purpose. I am not prepared to ignore it. It is common knowledge that individuals tend to move their residence to a place that is convenient to their place of business or employment. Someone who must be routinely outside the country to pursue his livelihood is not likely to develop an attachment or commitment to Canada during that time. This factor does not weigh in the applicant"s favour.
[15] Another factor to consider is whether the appellant"s pattern of absences shows a returning home to Canada or merely visits here. This is a neutral factor in the appellant"s case. As noted, his wife and children are here and he and his wife purchased a family home here. These are indicia that could lead to a conclusion that the returning is a returning home. At the same time, there have been constraints on the wife"s mobility, if she wishes to attain Canadian citizenship " she needs to accumulate the three years residence. This, together with the fact that the focus of the appellant"s business activities is in Hong Kong and China, invites a conclusion that his trips to Canada have been visits only and do not evidence a settled intention to adopt Canada as the country in which he normally and usually resides. With the passage of more time, it may become clear that the family has centralized its mode of existence in Canada, but that is not clear at the moment.
[16] Lastly, one asks whether the evidence shows that the person"s attachment to Canada is greater than the attachment the person has to any other country. The evidence does not support an affirmative answer. The appellant and his wife purchased a home here. He has acquired all the usual indicia that one sees in these cases (e.g. driver"s licence, health card, bank account, social insurance card, etc.), indicia that really tell one very little about the quality of a person"s attachment to Canada. When the appellant returns to Hong Kong, he resides with a relative. When he goes to China, he resides in the factory"s living accommodation. He has incorporated a Canadian company and hired one full-time software engineer. That company while profitable appears to be only minimally so. The conclusion that must be reached is that the place with which the appellant has the most significant attachment remains China, now including Hong Kong, not Canada.
[17] With the passage of time, it may become clear that the appellant has adopted Canada as his home, and has resided here for three years out of the four required to obtain citizenship. The present application, however, is simply premature. For the reasons given, the appeal will be dismissed.
(Sgd.) "B. Reed"
Judge
Vancouver, British Columbia
25 August 1999
[18] FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-2263-98
STYLE OF CAUSE: Kwok Leung Yip v. MCI
PLACE OF HEARING: Vancouver, British Columbia
| DATE OF HEARING: August 19, 1999 |
REASONS FOR ORDER OF REED J.
dated August 25, 1999
APPEARANCES BY:
| Andrew Wlodyka for the Applicant |
| Barrister and Solicitor |
| Pauline Anthoine for the Respondent |
| Department of Justice |
SOLICITORS OF RECORD:
Lawrence Wong & Associates for the Applicant
| Vancouver, BC |
Morris Rosenberg for the Respondent
Deputy Attorney General
of Canada