Hsu ( Re )
T-2297-93
Joyal J.
2/9/94
17 pp.
Appeal from refusal of citizenship for failing to comply with Citizenship Act, s. 5(1)(c) requiring residency in Canada for three of four years preceding date of application for citizenship-Appellant applied for Canadian visa under entrepreneurial class, received landed immigrant status in Canada in 1989-Founded consulting company-Business requiring protracted absences from Canada-Appeal dismissed-Papadogiorgakis (In re) and in re Citizenship Act, [1978] 2 F.C. 208 (T.D.) not providing open season for landed immigrants to obtain citizenship no matter how brief periods of actual physical residence-Citizenship often denied to applicants where indices of residency more formalistic in nature or so patented as to give appearance of mere camouflage-Critical review of cases revealing Re Papadogiorgakis rule possibly extended beyond intent of statute-Muldoon J. in Hui, Re (1994), 75 F.T.R. 81, reviewing spread in interpretation of residency rule, expressing Court's need to reaffirm more textual approach to statutory provisions-Strongly suggesting Parliament's role usurped if Citizenship Act interpreted such that obviously not complying with intention applicant should establish residency in Canada for at least three years in last four-Muldoon J. holding imposition of rules before eligibility could be established i.e. residency rule, knowledge of official language, acquaintance with Canada's form of government, political institutions, through citizenship legislation, indicating intention grant of Canadian citizenship more than mere rubber-stamping exercise-Adopting "strict construction" on residency issue as correct interpretation of will of Parliament-On other hand, formula for residency adopted in Papadogiorgakis case must have some merit, as adopted by 16 years' of Federal Court judges-Once established "residency" could be given extended meaning, questions of absences from Canada during qualifying period more particularized, imposing on Court burden of weighing all surrounding circumstances and of having to make judgment call-Although strict construction of residency rule solving many problems (residency becoming purely numbers game), constructionist approach imperfect-Court interpreting residency requirement humanely to accommodate applicants who, for various reasons, necessarily absent from Canada for extended periods of time i.e. students pursuing studies abroad, entrepreneurs who must spend considerable time winding up businesses in country of origin, technicians called by contract to render services in oil fields of Middle East or Indonesia, foreign workers with CUSO-Flexible interpretation providing some relief from otherwise stringent physical presence in Canada requirement-Also respecting individual needs to minimize economic loss, to assure economic survival, or to enhance career opportunities, all elements of human existence, and aspirations in sync with Canadian values and which Citizenship Act recognizes, endorses in s. 5-Individualized consideration of particular circumstances resulting in some inconsistencies, but constructionist approach not remedy- Many immigrants bringing wealth, experience, knowledge, expertise, international exposure to whom grant of Canadian citizenship as important as to those whose occupation, training not lending themselves readily to offshore mobility-Nor is Minister's discretion to dispense with residency requirements of statute on compassionate grounds complete answer-Appellant having substantial investment in business incorporated in Canada, head office in Montréal, substantial deposits in Canadian banks, owning posh condominium in Vancouver and renting accommodation in Montréal-Main source of appellant's business Taiwan, Hong Kong-Appellant's company paid corporate income taxes in Canada-Appellant paying taxes on substantial amounts of both earned and investment income-Whole experience in line with entrepreneurial category under which obtained landed immigrant status, and in keeping with Canada's avowed policy of attracting kind of people who can transfer both capital assets, personal skills to Canada-Consideration of appellant's dedication, commitment to Canada extending beyond more orthodox tests of place of abode, car licence, membership in various organizations-Montréal residence established upon appellant's arrival-Between 1989 and 1992 spent more time abroad than in Canada-On point count basis, main items favouring appellant that gained landed status in Canada under entrepreneurial category, transferred large amounts of funds to Canada, bought Canadian real estate, established Canadian company, he and company generated income on which taxes accrued to benefit of Canadian public-But transfer of funds to Canada and business activity established through company more relevant to gaining landed immigrant status than to gaining Canadian citizenship-Many non-residents having funds in Canada, income generated from them subject to Canadian taxes-Canada having little, if any, connection with appellant's endeavour-Tempting to conclude residency status in circumstances having certain element of "convenience" to it-No evidence of activities in terms of personal, social, institutional involvement otherwise possibly tipping scale in appellant's favour-Good side of equation not compensating for length, frequency of absences during qualifying years, limited involvement, either directly or vicariously in Canadian mainstream-Citizenship Act, R.S.C., 1985, c. C-29, s. 5.