Legal Update: Meaning of “Residency” for Citizenship Purposes

In order to become a Canadian citizen, landed permanent residents of Canada must satisfy a Citizenship judge that they have "resided" in Canada for a total of at least 1,095 days (three years) during the four years preceding their application for citizenship.

The principle behind this residency requirement is that in order to be granted citizenship, an applicant must have clearly and definitively established a home in Canada with the transparent intention of maintaining permanent roots in Canada. While physical residency in Canada is not always indicative of permanent roots in Canada, it is probably one of the best indicators that the government has at its disposal to determine (at least on a prima facie basis) whether this test has been met.

A number of recent cases have dealt with the issue of what exactly "residing in Canada" means for the purposes of acquiring Canadian citizenship. As is the case in many areas of law, the definitions and rules which the Courts have set are anything but "black and white."

In the recent case of Felex Andy Yang v. Canada (Minister of Citizenship & Immigration), the respondent was often required to travel abroad for business purposes. In fact, the respondent’s first trip occurred only a few weeks after he had landed in Canada as a new immigrant. Arguing that the respondent’s business interests abroad rendered it impossible for him to have created a "permanent" home in Canada, the Crown appealed the original decision of the citizenship judge granting the respondent citizenship. In rejecting the Crown’s appeal, the Federal Court judge held that the respondent had created a permanent home in Canada, and noted that it was only reasonable to expect a businessman immigrant to continue to have business interests abroad.

Another recent case which represents the opposite extreme of the pendulum with respect to residency issues is that of Hong-Wei Zhang v. Canada (Minister of Citizenship & Immigration). In that case, the respondent had been initially granted citizenship even though he had been overseas on business for 1,162 days during the four years preceding his application for citizenship. The citizenship judge had decided in favour of the respondent on the ground that the respondent’s absences from Canada should be treated as presence in Canada because the respondent had tremendous success in China in bidding on major construction projects which directly benefited his Canadian company and its associates. Furthermore, the respondent’s wife was living in their home in Canada permanently (together with the respondent when he was in Canada), whereas the respondent only rented an apartment in China.

The Crown appealed the decision of the citizenship judge, arguing that the respondent’s success in bidding for construction contracts in China was absolutely irrelevant towards determining whether the respondent was a permanent resident of Canada. The Crown also argued that it is not enough for the respondent’s wife to be living permanently in Canada – it is the status of the respondent alone which is relevant.

In ruling against the respondent, the Court held that the respondent’s pattern of presence in Canada was one of returning to visit his wife. It was not one which demonstrated that he had a closer relationship to Canada than to any other country. The judge then proceeded to elaborate upon the reasons (in his opinion) for the requirements of residency, explaining that with the grant of citizenship comes the right – and perhaps even the duty – to participate in the political life of Canada. Since the respondent was absent from the country for such an extensive period and had never created a true "attachment" to Canada, the judge felt that the respondent was simply not familiar enough with life in Canada to warrant citizenship.

Another recent case should help us interpret the implications of the Hong-Wei Zhang case more clearly. In Chong Meng Sio v. Canada (Minister of Citizenship & Immigration), the respondent had also been absent from Canada for a significant amount of time during the four year period preceding his application for Citizenship (a total of 565 days absent). As in Hong-Wei Zhang, the citizenship judge granted the respondent citizenship on the ground that although the respondent’s business interests required him to travel extensively abroad (he was in the seafood export and travel industries), the respondent had in fact made Canada his home. The Crown appealed the decision of the citizenship judge. In this case, the Federal Court upheld the decision of the citizenship judge, concluding that when the respondent returned from his business trips overseas, he truly was returning "home" to his wife and to Canada.

As should already be apparent, the Courts do not render decisions on residency issues on a "cut and dry" basis. At first glance, Hong-Wei Zhang appears to present a fact pattern which is quite similar to that of Chong Meng Sio. Yet the contrasting results of these two cases are explainable, if we understand that the Courts must assess all of the facts and circumstances of each particular case. Thus, even though both cases involved business people who were absent from Canada for extended periods of time, the Court examined other factors in order to determine whether Canada had become the permanent "home" of the individuals involved. It is these "other" factors that are often the most crucial elements that will influence (often in a subjective manner) the final decision of a judge, and this is why it so difficult to predict the outcome of many citizenship hearings.

One example of such a "deciding factor" is that of the payment of Canadian income tax. Three recent cases of the Federal Court dealt with this specific issue. In Ching Song Lu v. Canada (Minister of Citizenship & Immigration), the Court held that the respondent had not made Canada the centralized place of his "ordinary mode of living." Even though the respondent and his wife had purchased an expensive home and two automobiles, these were just two "factors" that the judge deemed relevant. More telling, in the eyes of the judge, were the respondent’s Canadian income tax returns which indicated that the respondent had earned as little as $9,000 (CDN) per year and no more than $33,000 (CDN) per year in each of the four years preceding the citizenship application. Since it was obviously impossible for the respondent to maintain his standard of lifestyle on the relatively meager income that he had reported to the taxation authorities, the judge concluded that the respondent’s business activities were "centralized" outside of Canada.

On a similar note, in Woon Ming Chan v. Canada (Minister of Citizenship & Immigration), the Court recently held that since the respondent’s tax returns indicated that he had earned a relatively small income in Canada, he had not centralized his business activities in Canada and thus did not satisfy the residency requirement for citizenship.

Again, in Doru-Octavian Dumitru v. Canada (Minister of Citizenship & Immigration), the Court was presented with a respondent who was often absent from Canada because, as a Romanian actor and entertainer, his livelihood was earned entertaining Romanian-speaking audiences. Not surprisingly, his services were in greatest demand in his native Romania, where the respondent was a regular fixture on Romanian television and stage. In ruling against the respondent, the judge also placed great emphasis upon the respondent’s tax returns. Noting that these returns indicated little income, the judge questioned why the respondent would continue to work abroad in a job that apparently paid so poorly. Without having to say as much, the judge clearly implied that the respondent had failed to report his true earnings from his Romanian business activities. This failure, combined with the lack of professional activity by the Respondent within Canada, led the judge to conclude that the respondent’s centre of existence was Romania, and not Canada.

Special mention should be made of the children of landed Canadian permanent residents who come to Canada with their parents, and then soon afterwards leave the country to pursue their studies. In the recent case of Chia Wen Cuang v. Canada (Minister of Citizenship & Immigration, the respondent argued that although he had left Canada to study abroad, he had consistently returned to Canada whenever he had a break from his studies.

In a decision that should be noted by all permanent residents whose children study abroad, the Court held that attachment to Canada means more than simply returning to visit one’s parents who happen to live in Canada. Rather, the respondent must prove that his attachment was to Canada "in and of itself," and not merely to family. Furthermore, the Court held that it was not enough for a person seeking to qualify for Canadian citizenship while studying abroad to do everything that a Canadian citizen would do (i.e. return to Canada to be with his parents on school breaks). The person seeking Canadian citizenship must do more. She or he must demonstrate a true commitment to Canada - a centrality of living – that is independent of the commitment to family. The Court ruled that no such commitment to Canada had been established, and thus denied the application for citizenship.