Date: 19981105
Docket: T-715-98
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
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
- and -
SHIH-CHUAN SEAMAN HUNG
Respondent
REASONS FOR JUDGMENT
ROULEAU, J.
[1] This is an appeal from the decision of a Citizenship Judge dated March 20, 1998 in which the respondent was granted Canadian citizenship. It was determined that Mr. Hung met the residency requirement under paragraph 5(1)c) of the Act which requires that an applicant for Canadian citizenship must have accumulated at least three years of residency in Canada within the four years immediately proceeding his or her application. The Citizenship Judge found that the respondent had been physically present in Canada 521 days, leaving him 574 days short of the required 1095 days to meet the requirement. However, the Citizenship Judge was satisfied that the respondent had established a pied-à-terre in Canada, and that his absences were temporary and motivated by the establishment of his travel business.
[2] The Minister appealed the decision on April 15, 1998, on the basis that the respondent did not accumulate at least three years of residence in Canada.
[3] Appeals to the Federal Court under subsection 14(5) of the Citizenship Act which were filed before the coming into force of the Federal Court Rules, 1998 on April 25, 1998 are trials de novo. We are therefore permitted to consider all of the evidence, including witness testimony. (Canada (MCI) v. Chan (1998), F.C.J. No. 742, per Rothstein J.)
[4] The respondent was born on August 21, 1952 in Taiwan, in the Republic of China. He was admitted to Canada as a permanent resident on August 14, 1993, in the entrepreneur category. He applied for Canadian citizenship on May 5, 1997.
[5] The respondent started a business in 1993, but it was unsuccessful and he lost money. In August 1994, he opened Natural Travel Service Ltd. in Richmond. The company is incorporated under the laws of the province of British Columbia. Its purpose is to encourage and recruit Asians to visit Canada. The respondent"s business lost a considerable amount of money in the first three years of operation, so he had to spend time in the field promoting his business. He has persisted and his business showed a profit in 1997. As a result, the respondent"s absences from Canada are now shorter. Since February 1997, the respondent has been to Taiwan for business purposes only three times. Each of his absences lasted approximately one week.
[6] In February 1997, the respondent was nominated as a director for the Canadian Inbound Tourism Association for Asia Pacific. In March 1998, he recruited a tour partner in Calgary. The respondent now represents Canadian Airlines in Taiwan with respect to recruiting students to come to Canada to learn English as a second language. He has worked several years at establishing his business in Richmond, and has been successful in bringing a number of Asian tourists and visitors to Canada.
[7] The respondent has purchased a home in Vancouver. He maintained an active Canadian bank account and RRSP investments. Also, he has paid income tax and holds a provincial driver"s license and a medical care card. His immediate family lives in Vancouver. His son studied at a local high school and University.
[8] In Re Papadogiorgakis (1978), 2 F.C. 208., Thurlow C.J. established the principle that full-time physical presence in Canada is not an essential residential requirement; that a person with an established home of his own in Canada does not cease to be resident when he leaves for temporary purposes, whether on business, or vacation, or to pursue a course of study. In the case of Re Koo (1992) (1993), 1 F.C. 286 at 293 (F.C.T.D.), Madame Justice Reed surveyed the jurisprudence concerning residence and summarized the different formulations for determining whether an appellant was resident in Canada, despite a physical absence:
| The conclusion I draw from the jurisprudence is that the test is whether it can be said that Canada is the place where the applicant "regularly, normally or customarily lives." Another formulation of the same test is whether Canada is the country in which he or she has centralised his or her mode of existence. |
[9] Centralizing your mode of existence in Canada requires more than just maintaining a domicile in Canada with an mere intent to return. Noël J. stated in Re Lai (1994), 85 F.T.R. 62 at pp. 63-64 (F.C.T.D.):
| In cases where physical absence is encountered during a statutory period, proof of continued residence will required evidence as to the temporary nature of the absence, a clear intent to return and the existence of sufficient factual ties with Canada to assert residence in fact during the period (...) where a businessman established Canada as his place of abode by setting up his matrimonial home and family there, he is permitted to travel within reason to earn a living. |
[10] In this case, the respondent disposed of his business before emigrating in Canada. He entered Canada under the Business category and established a travel business in Canada. The respondent has encountered difficulties which required him to travel extensively to promote his business. His business has now turned around, and he is now in a position to spend more time in Canada. There is no doubt in my mind that the respondent maintained ties with Canada and that his absences from Canada were temporary and involuntary.
[11] The respondent demonstrated that he customarily lives in Canada and that he intends to keep his Canadian residency. For these reasons, I dismiss the appeal.
__________________________________
JUDGE
OTTAWA, Ontario
November 5, 1998