Federal Court Decisions

     T-1653-96

     IN THE MATTER OF THE CITIZENSHIP ACT,

     R.S.C., 1985, c. C-29

     AND IN THE MATTER OF an appeal from the

     decision of a Citizenship Judge

     AND IN THE MATTER OF

     JAMES KONG LIU

     Appellant.

     REASONS FOR JUDGMENT AND JUDGMENT

     The appellant appeals from a decision of a Citizenship Judge denying his application for a grant of Canadian citizenship on the ground that he had not met the residency requirements of the Citizenship Act, R.S.C. 1985, c. C-29.

     The appellant, born in China on October 28, 1957, arrived in Canada with his wife and children, as a permanent resident, on March 21, 1991. In May 1994, the appellant filed his application for Canadian citizenship and he appeared before the Citizenship Judge on February 26, 1996. On May 24, 1996, the appellant received a letter from the Citizenship Judge advising him that his application could not be approved on the ground that he had not met the requirements of subsection 5(1)(c) of the Citizenship Act which provides that:

5. (1) 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 calculated in the following manner:

(i) for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and

(ii) for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence;

     In his letter, the Citizenship Judge pointed out to the appellant that at the time of his application he had been physically absent from Canada for a period of 1,013 days. Thus, between March 21, 1991 and May 1994, the appellant had only spent 130 days in Canada. The Citizenship Judge then turned his mind to whether the appellant could be found to meet the residency requirements despite the fact that he had not spent much time in Canada. The Citizenship Judge concluded that he could not so find. On July 10, 1995, the appellant filed his notice of appeal in this Court.

     The relevant facts, as far as the appellant is concerned, are those facts which are set out in his attorney"s letter to the Citizenship Court, dated April 25, 1994. At page 3 of that letter, counsel for the appellant sets out the facts as follows:

a) Mr. Liu, his wife and his children emigrated to Canada from Hong Kong on March 21st, 1991.

b) The applicant and his wife have at all material times maintained a home, furniture, a motor vehicle and bank accounts in Vancouver.

c) In addition to owning their principal residence in Vancouver, the applicant and his wife have purchased a secondary residence for recreational purposes in British Columbia.

d) From and after landing, the applicant has worked overseas on behalf of a Canadian ship brokerage company.

e) The applicant"s departures from Canada was not voluntary and was carried out solely because of his posting by his Canadian employer. Because of the economic recession at the time of the applicant"s landing, it was impossible for the applicant to obtain employment with a Canadian firm which would allow him to be based in Vancouver.

f) Mr. Liu has continued at all times to be a resident of Canada for income tax purposes.

g) At the time of all absences from Canada, Mr. Liu has been in possession of a returning resident permit.

h) Mr. Liu has at all times maintained his residency in Canada for immigration purposes.

i) Mr. Liu does not own any residence outside of Canada.

j) Both of Mr. Liu"s two children were born in Canada and are Canadian citizens.

     These facts were all before the Citizenship Judge when he denied the appellant"s application for citizenship.

     The leading case regarding the issue now before me is that of Re:    Papadogiorgakis¸ [1978] 2 F.C. 208. At 213 and 214, Thurlow J. (as he then was) explained the concept of "residence" under the Citizenship Act in the following manner:

It seems to me that the words "residence" and "resident" in paragraph 5(1)(b ) of the new Citizenship Act are not as strictly limited to actual presence in Canada throughout the period as they were in the former statute but can include, as well, situations in which the person concerned has a place in Canada which is used by him during the period as a place of abode to a sufficient extent to demonstrate the reality of his residing there during the material period even though he is away from it part of the time. This may not differ much from what is embraced by the exception referred to by the words "(at least usually)" in the reasons of Pratte, J., but in a close case it may be enough to make the difference between success and failure for an applicant.

A person with an established home of his own in which he lives does not cease to be resident there when he leaves it for a temporary purpose whether on business or vacation or even to pursue a course of study. The fact of his family remaining there while he is away may lend support for the conclusion that he has not ceased to reside there. The conclusion may be reached, as well, even though the absence may be more or less lengthy. It is also enhanced if he returns there frequently when the opportunity to do so arises. It is, as Rand, J., appears to me to be saying in the passage I have read, "chiefly a matter of the degree to which a person in mind and fact settles into or maintains or centralizes his ordinary mode of living with its accessories in social relations, interests and conveniences at or in the place in question".

     As I understand Mr. Justice Thurlow"s statement, a person who has established his home in Canada does not cease to be a resident if he leaves the country "for a temporary purpose whether on business or vacation or even to pursue a course of study". Thus, what I have to determine here is whether the appellant had in fact established his home in Canada when he left to work in Hong Kong. In my view, the appellant had not, and still has not, established his home in Canada.

     It is true that the appellant now owns a house, furniture, and a motor vehicle in Vancouver. He also owns a second house for recreational purposes. Can it be said however, in the circumstances of this case, that the appellant established his home in Canada when he and his wife returned to Hong Kong eight days after their arrival in this country?

     Before coming to Canada, the appellant worked for a firm of Hong Kong shipbrokers, Simpson, Spence & Young. The appellant"s testimony was that Simpson, Spence & Young were one of a few major international shipbrokers and that they had offices, inter alia , in London, New York and Hong Kong. In addition, the firm has an office in Vancouver. The appellant"s evidence, supported by a letter from M.A. Keane, a partner in the firm, is that he is an employee of Simpson, Spence & Young (Canada). I have no reason to doubt that the appellant is an employee of the Canadian firm but that does not, on the facts before me, make him a resident of Canada for the purpose of citizenship. As I understand the evidence, the appellant is doing the same work in the same office in Hong Kong that he did prior to landing in Canada. He landed in Canada in March 1991 and became an employee of the Canadian firm in April of that year. He does not, however, spend any time in the Vancouver office but spends all of his time in the Far East. While in Hong Kong, he does not stay in a hotel but leases an apartment for himself and his family. I agree entirely with the statement made by my colleague Muldoon J. in Re: Hui (1994), 75 F.T.R. 81 where he states, at 85:

(Canadianization) cannot be accomplished abroad. Nor can it be accomplished by depositing bank-accounts, rental payment, furniture, clothing goods and more importantly, spouses and children - in a word, all except oneself - in Canada, while remaining personally outside Canada.

     When the appellant is working in the Far East, his family does not remain in Canada. His wife and children follow the appellant to the Far East and whenever he returns to Canada they return with him. Even if the appellant had left his wife and children in Canada while he worked in Hong Kong, I doubt very much that that would have made any difference. The reality before me is that the appellant has not yet established his home in Canada and consequently, one cannot say that, while he is in the Far East on business, he has left his home for a temporary purpose.

     For these reasons, I cannot allow this appeal which shall be dismissed.

     "MARC NADON"

     Judge

Ottawa, Ontario

May 12, 1997