Date: 20000526
Docket: T-1222-99
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Appellant
- and -
DEYAO GU
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL, J.:
[1] The question in this appeal is whether, in the decision of May 12, 1999, the Citizenship Judge erred in approving the Respondent's application for Canadian citizenship pursuant to s.5(1) of the Citizenship Act (the "Act"). 1 In my opinion, 2 the answer to this question lies in whether the test cited by Thurlow, J. in Re Papadogiorgakis [1978] 2 F.C. 208 at 214 was applied as follows:
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.
[2] It is agreed that the essential facts before the Citizenship Judge can be quoted as follows:
| 1. Mr. Gu came to Canada in December 1994 with his wife from the U.S. He has a bachelor of chemical engineering from a well-known university in Shanghai. He then worked as a chemical engineer in Nanjin for several years. In 1990 he went to study at the University of Cincinnati and obtained his Master degree in chemical engineering there. When he studied in the U.S., he and his wife left their young child in China with his parents. He applied for immigration to Canada in the U.S. and was accepted. After he landed in Canada in 1994, he moved his personal belongings from the U.S., and he and his wife had to go back to China to bring their child over to join them in Canada. |
| 2. On March 13, 1995, he returned to Canada with his wife and child. During the ensuing four month period he applied for various jobs in Canada. He was lucky to find employment with Harcros Pigments Canada in Ontario. After joining the company, he was sent to the U.S. for training for three months. And thereafter, he was sent to, Shenzhen, China to run the company"s operations there.3 |
[3] The Citizenship Judge found that within the four years immediately preceding the date of the Respondent"s application for citizenship, he was present in Canada 227 days. It is agreed that the Respondents"s absences from Canada were due to his Canadian employer"s requirement that he meet his job obligations by working in China. Also before the Citizenship Judge were the facts that the Respondent was posted by his employer in a location some 1200 km. from his residence prior to coming to the U.S. and Canada, and during the whole of his job placement he lived in a hotel. The record before the Citizenship Judge also proves that in July 1997 and in May 1999 the Respondent"s request to have his job posting moved to Canada was denied.4
[4] During oral argument in the present case, counsel for the Appellant quite fairly agreed that there is no doubt that, had the Respondent being posted in Canada after beginning his employment in 1995, he would have remained within the Country. It was also agreed that this is, therefore, an unusual case and quite different from the situation from a person who has businesses and investments off-shore which need to be managed and, thus, requiring his or her absence from Canada.
[5] The Citizenship Judge"s findings on the evidence are as follows:
Applicant works for a Canadian company Harcros Pigments (Process Engineer Manager) who requires him to work in China in a managerial position. He was unable to find a job in Canada (list of applicant refusals in file) and so in order to provide income he had to accept this position. He has had his contract extended on 2 occasions for a 2 year period but he plans to leave the company if he has to remain in China (July 1999) - he will then return home to his family and hopefully find employment in Canada.
****
Other than employment he has no connection to China. He is very anxious to settle in Canada with his family. His quality of connection to Canada is strong - family, house, Canadian employer (paid in Canadian funds through a Canadian bank), income tax paid since 1994.5
On these findings the Citizenship Judge"s decision is as follows:
Based on this Koo case - the applicant has certainly centralized his mode of existence in Canada - his home is Canada.- The quality of his attachment to Canada is very strong. Also based on Thurlow"s reasons in Re Papadogiorgakis quote "a person with an established home of his own in which he lives does not cease to be a resident there, when he leaves for a temporary purpose whether on business or vacation or to pursue a course of study". I approve the applicant for citizenship.6
[6] It is very clear from the findings and the decision quoted that the Citizenship Judge put strong weight on the fact that the Respondent was employed by a Canadian company and posted off-shore, much to his dismay, and only as a result was absent from Canada. It is also clear that the Citizenship Judge found that, prior to being employed, the Respondent established residence in Canada and thereafter maintained it. I find no error in the application of the law or in the findings of fact. Indeed, I agree with the result.
[7] Accordingly, this appeal is dismissed. I award costs to the Respondent.
(Sgd.) "Douglas Campbell"
Judge
May 26, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| DOCKET: T-1222-99 |
| STYLE OF CAUSE: MCI |
v.
Deyao Gu
| PLACE OF HEARING: Vancouver, British Columbia |
| DATE OF HEARING: May 26, 2000 |
REASONS FOR ORDER AND ORDER OF CAMPBELL, J.
| DATED: May 26, 2000 |
APPEARANCES:
| Mr. Victor Caux For the Appellant |
| Mr. Lawrence Wong For the Respondent |
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney
| General of Canada For the Appellant |
Lawrence Wong & Associates
Barristers and Solicitors
| Vancouver, BC For the Respondent |
1 S.5(1) of the Citizenship Act , R.S.C. ch. C-29 reads as follows: 5. (1) The Minister shall grant citizenship to any person who (a) makes application for citizenship; (b) is eighteen years of age or over; (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; ( d) has an adequate knowledge of one of the official languages of Canada; (e) has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship; and (f) is not under a deportation order and is not the subject of a declaration by the Governor in Council made pursuant to section 20. [Emphasis added].
2 According to my interpretive findings in MCI v. Wing Tung Thomas Yeung (F.C.T.D. No. T-1256-98, rendered 3 February 1999), the issue in appeals such as the one in the present case is whether the Citizenship Judge made a reviewable error.
3This statement of fact is found in the Applicant"s Application Record, at p. 38, as amended by agreement during the hearing of the present application.