Date: 19980923
Docket: T-2486-97
T-2488-97
BETWEEN:
T-2486-97
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
WING KWAN SIT,
| Appellant. |
AND BETWEEN:
T-2488-97
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
YUK YEE CHAN,
Appellant.
REASONS FOR JUDGMENT
RICHARD, A.C.J.
[1] These two appeals were heard together. The appellants are husband and wife and are now 65 and 64 years of age respectively.
[2] The appellants appeal from the decision of the Citizenship Judge, dated October 23, 1997, wherein their application for citizenship was not granted on the ground that they had not met the residence requirement in paragraph 5(1)(c) of the Citizenship Act.
[3] The appellants applied for Canadian citizenship on October 16, 1996.
[4] The male appellant landed in Canada, as a retired immigrant, with his wife and three sons on January 1, 1993. Seven days later, on January 8, 1993, they both returned to Hong Kong for business purposes and did not return to Canada until April 23, 1993, that is 106 days later.
[5] The male appellant absented himself from Canada for business purposes on fifteen other occasions and for a wedding and vacation on two other occasions for a total of 751 days of absence from Canada during the period from January 1, 1993 to September 10, 1996. His wife accompanied him on most of his trips outside of Canada for a total of 700 days.
[6] The male appellant whose evidence was confirmed by his wife, testified that his absences on business were for the purpose of disposing of his interests in a business and real estate properties in Hong Kong. His wife testified that on these trips she also visited her aging and ailing aunts who resided in one of their properties, and where they also resided on their trips to Hong Kong. He testified that his presence was necessary for the purpose of completing the sales of these assets.
[7] Although the residency requirements of paragraph 5(1)(c) of the Act do not require actual physical presence in Canada during the whole period of 1095 days, the male appellant was absent of 751 days during the 1384 days of calculation of residence and therefore was present in Canada for only 633 days. His wife was absent for 700 days.
[8] The appellants returned to Hong Kong one week after landing in Canada leaving their grown children to complete arrangements for a house in Canada.
[9] Based on the evidence, I have concluded that the appellants did not establish residence in Canada following their arrival on January 1, 1993. Within one week they absented themselves from Canada for 106 days. They continued to maintain a residence in one of their properties in Hong Kong. They did not, at that time, centralize their mode of living in Canada and their absences, particularly in 1993 and 1994 were not of a temporary nature.
[10] I note that the male appellant disposed of his business interests by the end of 1995 and all but a few properties by 1996 and the length of absences from Canada has declined accordingly.
[11] The appellants are free to apply again for a grant of citizenship based on evidence of their residence in Canada in a more recent period.
[12] Accordingly, both appeals are dismissed.
(Sgd.) "J. Richard"
A.C.J.
Vancouver, British Columbia
September 23, 1998
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-2486-97
T-2488-97
| STYLE OF CAUSE: 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
WING KWAN SIT,
| Appellant. |
AND 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
YUK YEE CHAN,
Appellant.
REASONS FOR ORDER OF RICHARD, A.C.J.
dated September 23, 1998
SOLICITORS OF RECORD:
| Mr. Kenneth Jang on behalf of the Appellant |
| Jang Cheung Lee |
Barristers and Solicitors
1507 - 808 Nelson Street
Vancouver, BC
V6Z 2H2
| Mr. Bruce Harwood on behalf of the Amicus Curiae |
| Watson, Goepel, Maledy |
P.O. Box 49096
3023 - 595 Burrard St.
Vancouver, B.C.
V7X 1G4