Date: 19990112
Docket: T-1009-98
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Appellant,
- and -
YU YUNG CHANG,
Respondent.
REASONS FOR JUDGMENT
DUBE, J.
[1] The Minister appeals the decision of a Citizenship Court Judge dated March 17, 1998, to the effect that the Respondent had met the residence requirement of s. 5(1)(c) of the Citizenship Act.
[2] According to the Appellant's Memorandum of Fact and Law, the Respondent has been physically present in Canada for only 782 days and has a shortage of 417 days with respect to meeting the minimum requirement of at least three years residence in Canada within the four years immediately preceding the date of his application.
[3] The Respondent was born in China on November 27, 1932. He was granted landed immigrant status in Canada on June 5, 1993. At the time of his entry into Canada, he was accompanied by his wife and two of his three children. Upon his arrival in Canada the Respondent purchased a home and established himself and his family. Some 20 days after his arrival in Canada, the Respondent returned to Hong Kong for approximately 3" months for business purposes. He was successful in disposing of his export company in Kowloon. He made several other visits to Hong Kong to look after his mother-in-law.
[4] The Appellant alleges, and rightly so, that the existing jurisprudence clearly indicates that applicants for citizenship must demonstrate by objective facts, first, that they have initially established a residence of their own in Canada at least three years preceding their application; second, that they have maintained their established residence for the requisite period of time. In this instance, the Appellant and his family have established a residence of their own in Vancouver at least three years preceding the Appellant's application. There is substantial jurisprudence to the effect that residence does not imply continuous physical presence in Canada during the period of three years. The seminal decision in Re Papadogiorgakis, [1978] 2 F.C. 208 (T.D.) clearly established that fundamental principle.
[5] Consequently it cannot be said that the Citizenship Court Judge erred in law. Her concise reasons for decision appear in her notice to the Minister. It reads as follows:
| "Retired Chinese business man - completed sale of his export company in Kowloon and plans to live in Canada full time with trips out for personal reasons only. Owns home - wife and children in Canada.". |
It was open for the Citizenship Court Judge to find as she did based on the record. The mere fact that the Respondent was physically present in Canada for only 782 days was not by itself a determinative factor. He established a home for himself and his family in Burnaby, British Columbia with the transparent intention of maintaining permanent roots in this country as a retired person after having disposed of his business abroad. He has centralized his ordinary mode of living here. His obligatory trips abroad do not indicate an intention to abandon his residence in Canada.
[6] Consequently the appeal is dismissed.
(Sgd.) "J.E. Dubé"
J.F.C.C.
Vancouver, British Columbia
12 January 1999
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-1009-98
STYLE OF CAUSE: MCI
| v. |
| Yu Yung Chang |
PLACE OF HEARING: Vancouver, BC
REASONS FOR JUDGMENT OF THE COURT BY:
DUBE, J.
DATED: January 12, 1999
APPEARANCES BY:
| Ms. Emilia Péch for the Appellant |
| Mr. Lawrence Wong for the Respondent |
SOLICITORS OF RECORD:
| Mr. Morris Rosenberg for the Appellant |
Deputy Attorney General
of Canada
| Mr. Lawrence Wong for the Respondent |
| Wong & Associates |
Vancouver, B.C.