Federal Court Decisions

     T-1637-96

     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

     HUNG NANG CHOI

     Appellant.

AND

     T-1638-96

     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

     KWAN WAI DEREK CHOI

     Appellant.

     REASONS FOR JUDGMENT

NADON J.:

     The appellants (in files T-1637-96 and T-1638-96) appeal from the decisions of a Citizenship Judge denying their applications for a grant of Canadian citizenship on the ground that they had not met the residency requirements of the Citizenship Act, R.S.C. 1985, c. C-29.

     The appellants are father and son. They were admitted to Canada as permanent residents on April 11, 1992. In August 1995, the appellants filed their applications for Canadian citizenship and they appeared before the Citizenship Judge on April 23, 1996. On May 30, 1996 and June 14, 1996, the Citizenship Judge wrote to the appellants (to the son on May 30 and to the father on June 14) advising them that their applications could not be approved on the grounds that they 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 letters to the appellants, the Citizenship Judge pointed out that at the time of their applications they had been physically absent from Canada for a period of 1,160 days (the father) and 1,154 days (the son). Thus, between April 1992 and August 1995, the appellants had only spent approximately 74 days (the father) and 80 days (the son) in Canada. The Citizenship Judge then turned his mind to whether the appellants could be found to meet the residency requirements despite the fact that they had not spent much time in Canada. The Citizenship Judge concluded that he could not so find. On July 3, 1996, the appellants filed their notices of appeal in this Court.

     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 appellants had in fact established their home in Canada before returning to Hong Kong to conduct their business. In my view, the appellants had not, and still have not, established their home in Canada.

     The appellants own a house in Scarborough, Ontario. While in Hong Kong during most of the year, the appellants reside in a rented flat. When travelling to China, the appellants reside in hotels.

     The appellant-father arrived in Canada on April 11, 1992 as a landed immigrant with his wife and two children. He left for Hong Kong on April 16, 1992, having spent only 5 days in Canada. He was out of the country for 170 days. As I indicated earlier, the appellant-father was absent from Canada during the relevant period for 1,160 days. During that time, he was taking care of the family business in Hong Kong.

     The other appellant, the son, remained in Canada until April 19, 1992 at which time he also left for the Far East. He was away for a period of 51 days. He returned to Canada of June 9, 1992 and left on June 12, 1992 for a period of 155 days. Like his father, he was in Hong Kong taking care of the family business.

     I am attaching, as schedules to my reasons, two documents which give the specifics regarding the appellants" "absences from Canada".

     In the reasons which he gave for refusing the appellants" applications, the Citizenship Judge wrote as follows:

While I accept that physical presence within Canada for the entire 1095 days is not required, a certain period of physical presence is critically important to ensure a certain amount of commitment and connection to Canada. This point is one which I do not take lightly.

It is obvious to me that you had a choice to make before immigrating to Canada, either to stay in Hong Kong or to come to Canada and establish a new life here.

These facts lead me to conclude that your presence in Canada were only visits or temporary stays. This is insufficient to consider that you centralized your mode of living within the four years preceding the date of your application and therefore your absences from Canada cannot be counted as a period of residence in Canada.

     It is true that while the appellants are in the Far East on business, the rest of their family remains in Canada. The appellant-father"s wife remains here in their Scarborough house. There is also an uncle living in Canada. The appellants testified that except for their grandmother who lives in Malaysia, all of their family is now settled in Canada.

     In my view, the Citizenship Judge was correct in holding that the appellants had not established their home in Canada. The reality before me is that the appellants do not live in Canada. Rather, they live in Hong Kong and occasionally return to Canada to visit their family. As Muldoon J. stated in Re Hui (1994), 75 F.T.R. 81 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.

     With respect to those who hold a contrary view, it cannot be said that the appellants had established their home in Canada at any time between their arrival in Canada on April 11, 1992 and August 1995. In my view, it is impossible to come to the conclusion which the appellants wish me to reach.

     Perhaps the Citizenship Act should be amended by Parliament in order to accommodate immigrants coming to Canada from Hong Kong. Many of them come here by reason of very special circumstances. However, it is not within my power to make the amendment which only Parliament can make. I recognize that a number of immigrants from Hong Kong, in circumstances very similar to those set out above, have successfully appealed negative decisions rendered by Citizenship Judges. Unfortunately for the present appellants, I am not prepared to disregard the clear provisions of the Citizenship Act.

     For these reasons, these appeals shall be dismissed.

     "MARC NADON"

     Judge

Ottawa, Ontario

May 29, 1997

     T-1637-96

OTTAWA, ONTARIO, THIS 29TH DAY OF MAY 1997

PRESENT: THE HONOURABLE MR. JUSTICE NADON

     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

     HUNG NANG CHOI

     Appellant.

     JUDGMENT

     The appeal is dismissed.

    

     Judge

     T-1638-96

OTTAWA, ONTARIO, THIS 29TH DAY OF MAY 1997

PRESENT: THE HONOURABLE MR. JUSTICE NADON

     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

     KWAN WAI DEREK CHOI

     Appellant.

     JUDGMENT

     The appeal is dismissed.

    

     Judge