Federal Court Decisions

     Court No. T-729-95

     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

     Wai Shing (Vincent) To,

     Appellant.

     REASONS FOR JUDGMENT

TEITELBAUM, J:

     This appellant met all the requirements for citizenship set out in the Citizenship Act, R.S.C. 1985 c. C-29 (Act) except for the requirement of residence. Under the Act, Section 5(1)(c), an applicant for citizenship is required to have accumulated at least three years of residence in Canada within the four years immediately preceding his or her application. I believe that one of the main reasons for this requirement is to enable the individual to become acquainted with what it is to be a Canadian, that is, to learn about one's rights and obligations as a citizen of Canada.

     The Citizenship Judge refused to grant the Appellant citizenship because the appellant's absences from Canada in the four years preceding his application were too extensive.

     The Citizenship Judge, in her decision of February 13, 1995, states as her refusal to allow the Appellant's application:

Your application for citizenship was sworn by a lawyer on the 9th day of December 1994, and registered by our office on the 13th day of December 1993. Said application indicates that you entered Canada as a landed immigrant on March 30, 1990. According to the Court's calculations, your absences from Canada total 1,213 days within the 1,351 days accumulated between the day you entered Canada as a landed immigrant and the day of your application was received by our office.

Thus, because of your extensive absences from Canada, you are 957 days short of the minimum requirement of 1,095 days. In fact, you have been physically present in Canada for 138 days within the above mentioned 1,351 days.

Federal Court precedents require that an applicant for Citizenship establish and maintain residence in Canada. An individual must show, in mind and fact, a centralised mode of living in Canada.

In these circumstances the onus is on you, the applicant, to satisfy the Citizenship Judge, that in order to meet the residence requirement, your absences from Canada could be counted as a period of residence in Canada.

Absences from Canada do not affect this residence, as long as it is demonstrated that the individual:

a)      left for a temporary purpose only

or

b)      always maintained in Canada some real and tangible form of residence.

     The Appellant filed his appeal of the above decision on April 11, 1995.

     It is my understanding that except for short absences for business the Appellant and his common-law wife Pui Yu (Freda) Pun, who is also an appellant in Federal Court file T-730-95, have remained in Canada.

     The hearing for this appeal first came for hearing on July 9, 1996. I continued the hearing to February 10, 1997 in order to satisfy myself that the Appellant is fully aware of what it is to be "Canadian".

     In that a citizenship appeal hearing is a trial do novo, I took into account all that took place from the date of the appeal to today's date, that is, to February 10, 1997.

     I am satisfied that much of what Mr. Justice Dubé states In The Matter of Ching-Ho Huang, T-519-96, January 30, 1997 (F.C.) is applicable here.

However, full-time physical presence in Canada is not an essential residential requirement. That principle was clearly established by the Associate Chief Justice of this Court, Thurlow, A.C.J., as he then was, in the well-known Papadogiorgakis case [1978] 2 F.C. 208 wherein he said as follows, at p. 214:

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 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, interest, and conveniences at or in the place in question".

That landmark decision has lasted more than 18 years and Parliament has not seen fit to amend the Act so as to circumscribe its impact. Thus, a liberal interpretation of the Act truly reflects the generous family values of our citizens.

     In the case before me, the Appellant and his common-law wife entered Canada on March 30, 1990. Soon after their arrival, they purchased a residential condominium which is now their home.

     Although they were often out of Canada, I am satisfied it was for a temporary purpose, that is, to continue to operate their business in China and Hong Kong.

     I am satisfied the Appellant and his common-law wife made their home in Canada.

     When this matter came before me in July 1996, I continued the case to February 1997 to see what the Appellant did to become "Canadian". Out of the seven months, they remained and lived in Canada.

     Mr. Justice Dubé, in the Huang case, at pages 3 and 4, states:

As I had the occasion to state in the Siu Chung Hung citizenship case, T-384-95, January 26, 1996, not reported, which is quite similar to this one, "the place of residence of a person is not where that person works but where he or she returns to after work". Where an applicant for citizenship has clearly and definitively established a home in Canada with the transparent intention of maintaining permanent roots in this country, he ought not to be deprived of citizenship merely because he has to earn his livelihood and that of his family by doing business offshore. Some Canadian residents may work from their own homes, others return home after work every day, others every week, and others after longer periods abroad.

---

     For the above reasons, I am prepared to allow the present appeal.

     These reasons shall apply to file T-730-95, Pui Yu (Freda) Pun.

                             (Sgd.) "Max M. Teitelbaum"

                                 Judge

February 26, 1997

Vancouver, British Columbia