Date : 20031107
Dockets : T-1837-02 and T-1838-02
Citation : 2003 FC 1312
BETWEEN :
SHUN SHENG LIAO
Appellant
AND :
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
AND BETWEEN :
I JU HU
Appellant
AND :
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ROULEAU, J.
[1] These matters both came before me at Vancouver on October 7, 2003. It was agreed by counsel for both parties that one decision would apply to both files since I Ju Hu's appeal rests on the facts analysed in her husband's appeal, Mr. Shun Sheng Liao.
[2] This is an appeal pursuant to section 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 ("the Act") and section 21 of the Federal Court Act, R.S.C. 1985, c. F-7, from the decision of Citizenship Judge Hodgson on September 9, 2002, denying the appellants' application for Canadian citizenship on the ground that they did not meet the residence requirements set out in section 5(1)(c) of the Act.
[3] The appellants arrived in Canada as landed immigrants on November 7, 1997. Upon landing, the appellants moved into a rental home in Surrey, and resided there from November 1997 to January 1999.
[4] In November 1997, the appellant Liao commenced employment with Ford Credit Canada Limited ("Ford Canada") and was assigned to it's subsidiary in Vancouver.
[5] In January 1999, the appellant Liao was appointed by Ford Credit to a position in China. The assignment was initially intended to last for three years. However, in June 2000, Ford Credit required the appellant Liao to take up a new assignment in Japan. This new assignment is also expected to be for a duration of three years.
[6] The appellant Liao was accompanied by the appellant Hu, and their two young children on his postings to China and Japan. While overseas, the appellants obtained Returning Resident's Permits to allow them to return to Canada.
[7] Throughout the relevant time periods, the appellant Liao's employer paid his salary in Canada. He also paid personal income tax to Revenue Canada, and since his employment is still ongoing, taxes will continue to be deducted by his employer.
[8] The appellants were issued social insurance cards, health care cards, and driver's licenses. They opened and maintained bank accounts in Canada, in which the balance of the appellant Liao's income was kept. They were also issued various Canadian credit cards and department store cards.
[9] The appellants applied for Canadian citizenship on March 15, 2001.
[10] During the period under consideration, the appellants have a possible total of 1223 days of residence (from November 15, 1997 to March 15, 2001). The appellant Liao's actual residence totals 434 days in Canada, and 789 days of absence. This is a shortfall of 661 days from the number specified in the Act. The appellant Hu's actual residence totals 445 days in Canada, and 778 days of absence. This is a shortfall of 650 days from the number specified in the Act.
[11] The Citizenship Judge found that the appellants met all of the requirements for citizenship as set out in the Act, except for the requirement of residence as provided for in section 5(1)c):
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...
[12] The Citizenship Judge stated in his decision that he examined the application in light of the test for residence posed by Justice Reed in Re: Koo, [1993] 1 F.C. 286, although he did not explicitly state the factors. He noted that the primary questions to be dealt with are the degree to which the appellants had centralized their life in Canada, and the degree to which the time they had spent in Canada had allowed them to become Canadian by living and working with Canadians, and becoming part of Canadian society.
[13] The Citizenship Judge noted that the appellants had provided various indications of residence in Canada, such as owning a car, maintaining a bank account, and opening accounts with department stores. However, the Citizenship Judge concluded that these were only passive indicators of residence.
[14] Further, the appellants spent most of their time outside Canada, accompanied by their two young children. The Citizenship Judge concluded that their absences appeared to be structural, and represent a pattern of life, not simply a temporary phenomenon.
[15] The Citizenship Judge concluded that the appellants had not sufficiently centralized their life in Canada, living among Canadians, and becoming part of Canadian society. As a result, the Citizenship Judge denied the appellants' application for Canadian citizenship.
[16] The primary issue in this appeal is whether the Citizenship Judge erred in concluding that the appellants did not satisfy the requirement in section 5(1)(c) of the Act, that within the four years immediately preceding the date of their application for Canadian citizenship, they accumulated at least three years of residence in Canada.
[17] The appellants submit that they did accumulate the necessary three years of residence, and that the Citizenship Judge erred in concluding otherwise.
[18] The appellants submit that the Citizenship Judge failed to have regard to the fact that the appellants have been residents of Canada for at least three years, satisfying the requirement under section 5(1)(c) of the Act, and as such, has made several erroneous findings of fact in his decision.
[19] It is well-founded law that the standard of review to be applied when examining the decision of a Citizenship Judge is close to the correctness end of the spectrum, granting some deference to the specialized knowledge and experience of the Citizenship Judge (Lam v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 410.
[20] In the present case, the Citizenship Judge erred in numerous ways in concluding that the appellants had not satisfied the residency requirement.
[21] First, the Citizenship Judge erred in stating that the appellant Liao's place of business was in China. In fact, the appellant Liao was retained by a Canadian company, and was later assigned to work overseas on a temporary basis. Thus, his absences from Canada were not structural in nature. They were structured by the appellant Liao's Canadian employer, and not himself.
[22] Second, during the relevant time period, the appellant Liao was employed with a Canadian company and paid income tax in Canada. Additionally, all of his salary was deposited in banks in Canada, never in China or Japan. All of his deposit slips, bank accounts, and cheques also indicated a Canadian address.
[23] Third, the Citizenship Judge never pointed out that the appellants were living in Canada for 14 or 15 months prior the appellant Liao being posted overseas. This fact provides support for the appellants' submission that they had indeed established a residence in Canada, and that they have a strong connection to Canada.
[24] Fourth, the Citizenship Judge erred when he failed to take into account the fact that when the appellants arrived in Canada, they had sold their home in Taiwan. The respondent places great weight on the assertion that when the appellants return to Canada from the appellant Liao's overseas posting they will have no "home" to return to. However, during the entire time when the appellants were overseas, they had left all of their personal belongings in storage in Canada, at a considerable expense. This is a strong indicator that the overseas assignment is indeed temporary in nature, and that the appellants plan to once again make their home in Canada upon their return.
[25] As was the case in Lam, the appellant Liao's assignment in China and Japan is temporary in nature. Further, due to the young age of the appellants' children, it is to be expected that the entire family would accompany the appellant Liao.
[26] Although the Citizenship Judge had a proper understanding of the case law, he made numerous errors and omissions in examining the facts of the situation.
[27] At the time of the citizenship application, the appellants had sufficiently centralized their life in Canada. While their absences were lengthy, they were justified in the circumstances. Clearly there are sufficient indicia of Canadian residence to permit the appellants to be granted citizenship. The appeal is allowed and I hereby recommend that the appellants be granted citizenship.
JUDGE
OTTAWA, Ontario
November 7, 2003
FEDERAL COURT OF CANADA
SOLICITORS OF RECORD
DOCKETS : T-1837-02 and T-1838-02
STYLES OF CAUSE : I Ju Hu v. The Minister of Citizenship and Immigration
Shun Sheng Liao v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: October 7, 2003
REASONS : The Honourable Mr. Justice Rouleau
DATE OF REASONS: November 7, 2003
APPEARANCES:
Mr. Lawrence Wong FOR THE APPELLANTS
Mr. Peter Bell FOR THE RESPONDENT
SOLICITORS OF RECORD:
Lawrence Wong
Lawrence Wong &
associates FOR THE APPELLANTS
Morris Rosenberg
Deputy Attorney General
of Canada FOR THE RESPONDENT