Federal Court Decisions

     T-2066-96

BETWEEN:

     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

     LIU-TSUN JAMES YEN,

     Appellant.

     REASONS FOR JUDGMENT

DUBÉ J:

     This appellant met all the requirements for citizenship set out in the Citizenship Act¹ ("the Act") except for the requirement of residence. Under subsection 5(1)c) of the Act, an applicant is required to have accumulated at least three years of residence in Canada within the four years immediately preceding his or her application.

     In the case at bar, the appellant arrived in Canada as a permanent resident on January 3, 1990, accompanied by his wife and their two sons. Prior to that date, he had already purchased a home located at North York, Ontario, paid realty taxes, home insurance premiums, opened a telephone account, purchased home furnishings and opened a bank account with the Royal Bank of Canada. Before his first absence from Canada, he had transferred all his settlers effects from Taiwan to Toronto, obtained social insurance number and coverage under the Ontario Health Insurance Plan, arranged to have his sons enrolled in St. Agnes Catholic School and purchased an automobile. Later on, he carried out other indicia of establishment in this country, including a credit card, an Ontario driver's licence and making numerous charitable donations from the year 1990 onwards.

     On February 21, 1991, he incorporated Annam International Inc., an Ontario Corporation carrying on the business of metal trading, which company became sales agent for Ingot Metal Company Ltd. and negotiator for a Taiwan company and Specialty Steels of Mississauga, Ontario. His wife and his two sons are now Canadian citizens. His sons are attending local colleges and universities.

     The appellant has been absent for Canada because he must travel to Taiwan, Indonesia, Singapore, Japan and the United States to conduct business as he is fully involved in metal trading and is the sale agent for several Canadian and Asian companies. He is maintaining an active import/export business in the metal industry in Canada. The appellant's plans are to open a warehouse here to stock his metal products and to have one of his sons, who is very much interested in the import/export business, to travel on his behalf, thus enabling him to run his operations from Canada.

     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 case² 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 the 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.

     That landmark decision has lasted 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.

     As mentioned by Thurlow A.C.J. in the above Papadogiorgakis case, a person with an established home of his own in Canada does not cease to be a resident here when he leaves for temporary purposes, whether on business, or vacation, or to pursue a course of study. In the above mentioned case, the student applicant for Canadian citizenship was away to university in the United States, whereas in the instant case the appellant is often away on business.

     As I had the occasion to state in the Siu Chung Hung citizenship case³, 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 home, others return home after work every day, others every week, and others after longer periods abroad. The most eloquent indicia of residency is the establishment of a person and his family in the country, coupled with a manifest intention of making the establishment their permanent home.

     The evidence shows that the appellant has clearly established a home in this country with the manifest intention of maintaining his permanent residence here.

     Consequently, this appeal is allowed.

O T T A W A

October 10, 1997

    

     Judge

__________________

¹      R.S.C. 1985, c. C-29.

²      [1978] 2 F.C. 208.

³      T-384-95, January 26, 1996, not reported.