Federal Court Decisions

     T-1266-96

     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

     To Ning Ng,

     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 20, 1996. It was determined that Mr. Ng did not meet 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 preceding his or her application. The Citizenship judge found that the appellant had only been physically present in Canada 318 days of the 1,460 days since his landing, leaving him 777 days short of the required 1,095 days.

     It was determined that the appellant did not maintain sufficient ties within Canada during his absences to have them count as periods of residence under the Act; the Citizenship judge detected no grounds under which to recommend an exercise of Ministerial discretion. In making her decision, the Citizenship judge considered the fact that the appellant was in Canada only three weeks before his first departure. She was of the view that the appellant did not establish a residence when he entered Canada as a landed immigrant; that his absences from Canada were voluntary and not temporary in nature; that he did not show that he has interwoven into the Canadian community and that he intends to live in Canada.

     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.

     The appellant appeared before me at Toronto on May 7, 1997.

     In his Notice of Appeal, Mr. Ng submitted as follows:

1. The Learned Judge erred in concluding that I did not show, in mind and in fact, a centralization of my mode of living in Canada.

2. The Learned Judge erred in concluding that I did not establish residence when I entered Canada as a landed immigrant.

3. The Learned Judge erred in concluding that I did not show, materially or non-materially, my contribution to the maintenance of a Canadian domicile.

4. Such further and other grounds as counsel may advise and this Honourable Court may permit.

     The appellant is a 52 year old male born in Canton, China on January 5, 1945. He arrived in Canada with his wife and children at Vancouver on October 3, 1989 and they were granted permanent resident status on the same day. The appellant and his family immediately established themselves in Mississauga, Ontario. Prior to coming to Canada, the appellant disposed of one of his two fashion retail businesses in Hong Kong. Subsequently, in March of 1990, he returned to terminate his remaining business and sell the premises

     In July of 1990, he incorporated Daye Fashion Co. Ltd., an Ontario corporation involved in import and export of fashion clothing. This company carries on business in Toronto. It is submitted that Mr. Ng was required to travel to Hong Kong on many occasions on behalf of Daye Fashion Co. Ltd. which has an extensive contact base in Hong Kong where he conducts negotiations with buyers and suppliers. It was further submitted that Mr. Ng also travelled to China to visit his elderly father who suffers from a slipped disc and severe arthritis in his knee; due to his lack of mobility he has had to assist him in daily care and make arrangements for care in his absence as his mother is also aging and not well.

     The appellant sponsored his parents and nephews to Canada and was involved in their preparation for immigration. During the relevant period, the appellant travelled to Hong Kong and China on 16 different occasions mainly for business purposes and to care for his sick father.

     In his Residence Questionnaire, the appellant stated that he came to Canada to develop a business and to settle his family in a country which provides political stability, a better environment and better education for his children.

     Referring to various cases, counsel for the appellant submits that "physical presence in Canada for a total of 1,095 days in the four year period immediately preceding the date of application for citizenship is not strictly necessary in cases in which the applicant has maintained and will continue to maintain and establish permanent residence in Canada in the form of a residential base or "pied-à-terre"."

     This appellant appeared before me at Toronto on May 7, 1997 and gave the following evidence. His occupation is that of operating fashion stores and he previously had two in Hong Kong which employed ten people; both have been disposed of since his arrival in Canada. He landed under the entrepreneur category and the conditions on his visa were to the effect that he must establish a business in Canada and employ Canadians. Shortly after his arrival, he invested in two units in the China Square Development on Spadina Avenue; one is wholesale and one is retail. He employs three Canadians. He admits that he has numerous absences from Canada because he still goes to Hong Kong to purchase high fashion and other items for sale in his stores in Canada. While in Canada, he attends the Chinese Community Service Association where he studies English and Citizenship for five hours per day following which he attends to his business.

     Since his arrival, himself, his wife and one child of this marriage have resided at the same address in Mississauga. Two of the other children from a previous marriage also reside with him. They are enrolled in grade school and have been since their arrival. The older child attends University of Toronto. The appellant's wife and elder child are now Canadian citizens.

     There is no doubt in my mind that this individual has established residence in Canada and has canadianized himself. He has invested some $650,000 in this country and has been paying income tax and corporate tax since his arrival. The only reason for his return visits to Hong Kong is to purchase inventory for his business and his visits to Mainland China are to attend to his ailing parents. He attempted to sponsor them to come to this country but they were denied on medical grounds. The amicus curiae and myself were both satisfied that he has established a firm pied-à-terre in Canada. I allowed this appeal from the Bench.

JUDGE

OTTAWA, Ontario

May 28, 1997