Federal Court Decisions

     T-1428-96

     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

     Sai Wing Chir

     Appellant

     REASONS FOR JUDGMENT

ROULEAU J.

     This is an appeal from the decision of a Citizenship judge who denied this appellant Canadian citizenship on May 24, 1996. It was determined that Mr. Chir did not meet the residency requirement under paragraph 5(1)(c) of the Act which stipulates that an applicant for Canadian citizenship must have accumulated at least three years of residency in Canada within the four years immediately preceding his or her application. The Citizenship judge found that the appellant had only been physically present in Canada 322 days of the 1,285 days since his landing, leaving him 773 days short of the required 1,095 days.

     The Citizenship judge detected no grounds under which to recommend an exercise of Ministerial discretion under subsections 5(3) and (4). I believe it is appropriate to reproduce in part the Citizenship judge's decision:

... Absences in the first year were necessary because you felt under obligation to assist your former company fulfil contracts entered into earlier, and also to seek business opportunities as you no longer wished to begin a construction business in Canada, your loss of investment dollars in Manitoba having sapped your confidence. The latter absences occurred because you were working for Enfield Construction of Hong Kong, having been seconded to them by a Canadian company Euromax of Edmonton. This arrangement allowed you to visit your family in Canada approximately four times a year for 3 week intervals and paid you an annual salary of $13,000 or so. Your entire family believed this to be the best way you could support your family. You have stated that you have every intention of staying in Canada as soon as this becomes possible.

However intention to stay in Canada is not enough to satisfy the residency requirement of the Citizenship Act. The purpose of the residency requirement is to ensure that applicants for citizenship became interwoven into the Canadian fabric. While I accept that physical presence within Canada for the whole 1,095 days is not required, I cannot overlook that citizenship carries with it valuable rights such as the right to vote, the right to run for public office, the right to travel about the world freely as a representative of Canada. It carries with it protections abroad that are provided by the Canadian government. I believe the residency requirement was imposed to ensure a certain commitment and connection to Canada. In my opinion this connection can not be accomplished while effectively living outside Canada in the same milieu from which you came. This is especially so in your case as there is no solid time spent in Canada to support such lengthy absences.

     Since appeals to the Federal Court under subsection 14(5) of the Citizenship Act are trials de novo, I am permitted to consider all of the evidence before me including the appellant's testimony and that of any other witness.

     In his Notice of Appeal, the applicant submits as follows:

1. The citizenship judge ignored the mandatory provisions of Section 14 of the Citizenship Act, thereby losing jurisdiction;

2. I specifically plead that the refusal letter dated May 24, 1996 is null and void.

3. The citizenship judge did not understand the facts of my case.

4. The citizenship judge did not understand the law relating to residence cases pursuant to section 5(1)(c) of the Citizenship Act.

5. The citizenship judge misapplied the law to the facts of my case.

6. The citizenship judge was overly selective in her choice of case-law, and ignored the vast case-law and learned articles following Re Papadogiorgakis [1978] 88 D.L.R. (3d) 243.

     The appellant appeared before me at Toronto on May 6, 1997. Counsel for the appellant submits that the Citizenship judge erred in law in requiring physical presence in Canada in light of the Re Papadogiorgakis [1978] 2 F.C. 208, [1978] 88 D.L.R. (3d) 243, and the line of cases following that reasoning.

     The appellant is a 49 year old male born in Hong Kong on August 27, 1947 and by profession is a construction drainage expert. He arrived in Canada with his wife and two children at Vancouver on August 31, 1991 and was granted permanent resident status on the same day. The family moved into a home purchased by the appellant previous to their immigration; the children were enrolled in a local school. Mr. Chir purchased a car, opened bank accounts and purchased life insurance. His wife is now a citizen.

     The appellant entered Canada under the entrepreneur category with the intention of establishing a construction company in British Columbia. Upon his arrival he purchased a warehouse in Surrey where he planned to operate his business. During his first year in this country, the applicant had to return to Hong Kong in order to assist his former employer to fulfil contracts entered into earlier. Also in 1991, the applicant lost his investment of $150,000 in a Manitoba company. He subsequently travelled to Hong Kong on numerous occasions in order to look for business opportunities to recoup his loss. He was subsequently hired by Euromax Enterprises Ltd. of Edmonton and continued to travel to Hong Kong on their behalf.

     Upon arrival he realized that he lacked experience in this country in his chosen field and delayed entering into a construction business of his own. After the failure of the Manitoba company in which he had a considerable investment, he attempted to find work in Canada.

     Though his family continues to reside in Vancouver, in October 1992 he found employment with an Edmonton based company that hired him to supervise their construction projects in Hong Kong.

     He made numerous lengthy trips on their behalf but always returning to Canada and his family at any opportunity.

     Since his landing, his wife and children have been physically in this country continuously. He initially returned to Hong Kong to clean up loose ends and to try and find a source of funds to recoup his Canadian investment loss. He realized that his foreign experience in construction was of little value in Canada and searched for employment. He eventually found work with an Edmonton based company that sent him to Hong Kong on their behalf. This was the primary reason for his absences.

     During the entire period the children were going to Canadian schools and the applicant continued to pay income tax in this country.

     Where the evidence supports the fact that a landed immigrant has established a residence, maintained a pied à terre and clearly intends to live in this country, physical presence during the entire 1090 days is not essential. While his work took him out of Canada, the family ties of the appellant remained strong. Despite frequent absences, I am satisfied that he has established residence. The appeal is allowed.

     ________________________________

     JUDGE

OTTAWA, Ontario

July 9, 1997.