Federal Court Decisions

Date: 19971211

Docket: T-2575-96

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

     WU FONG SAMMY LIU,

     Appellant

     REASONS FOR JUDGMENT

ROULEAU, J.

[1]      This is an appeal from the decision of a Citizenship Judge who denied this appellant Canadian citizenship on November 12, 1996. It was determined that Mr. Liu 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 1,027 days of absences in the four years preceding his Citizenship application.

[2]      The Citizenship Judge determined that the quality of the applicant's connections with Taiwan and the length of his absences from Canada showed that Canada was not where he regularly, normally and customarily lived. Pursuant to subsection 15(1), the Citizenship Judge also did not find grounds under subsections 5(3) and 5(4) of the Act to recommend an exercise of Ministerial discretion in the applicant's case. At this hearing, the Citizenship Judge also refused the application of this applicant's wife for citizenship for the same reason (T-2576-96).

[3]      In his Notice of Appeal, the appellant submits as follows:

The Citizenship Judge misconstrued the facts of my case, and misdirected herself with respect to the law. He ignored the law relevant to my case, and incorrectly equated physical presence with residence.

[4]      The appellant appeared before me at Toronto on November 18, 1997, accompanied by his wife who is also an appellant. It was agreed that he would testified and that his evidence would be applicable to both of these appeals.

[5]      The appellant was born in Hsinchu, Taiwan on June 20, 1943. He arrived in Canada on January 16, 1993, accompanied by his wife and two daughters and was landed the same day. The appellant was admitted to Canada as a permanent resident under the Investor Program. Mr. Liu has a machinery distribution business in Taiwan and it is a one-man operation. He assumes all responsibilities relating to his business and travels extensively in order to source his products and earn his living. Mr. Liu has expressed the desire to sell this business and would like to do so but conditions are not favourable at this time.

[6]      The appellant owns his family home in North York. He has paid municipal taxes and he submitted bills relating to furniture and household wares which he bought to furnish the family home. Since his arrival in Canada, the appellant has also established and maintained banking arrangements with both the Royal Bank and the Toronto Dominion Bank; he has invested both with the Royal Bank and the Saskatchewan Government Growth Ltd. He holds a OHIP card, a library card and is a member of the Taiwan Merchant Association of Toronto. He filed income tax returns for 1993 and 1995 in Canada.

[7]      The appellant has submitted as another reason for his absence from Canada the fact that he must attend to the needs of his parents who reside in Taiwan and require constant care. He has stated that he shares this responsibility with both his wife and his brother, still a resident of Taiwan. According to the appellant, his parents are not admissible to Canada for medical reasons and thus, as a son, he has a duty to see to their needs. The appellant submits also that while away he had kept very close ties with Canada, in particular with his two daughters who are both Canadian citizens and presently attending York University.

[8]      In Papadogiorgakis, (1978) 2 F.C. 208, Thurlow A.C.J. established the principle that full-time physical presence in Canada is not an essential residential requirement. He also found that a person with an established home of his own in Canada does not cease to be resident there when he leaves for temporary purposes, whether on business, or vacation, or to pursue a course of study.

[9]      In Huang, [1997] F.C.J. No. 112, concerning the refusal of a citizenship application of a permanent resident of the entrepreneur class based on residence, Dubé J. stated the following:

Where an applicant for citizenship has clearly and definitely established a home in Canada with the transparent intention of maintaining permanent roots in this country, he ought not 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, other return home after work every day, others every week, and others after longer periods abroad.

[10]      It became evident that his absences were long and frequent because of his ailing parents. His wife was accompanying him because she had an ailing mother also residing in Taiwan. It was somewhat troubling to the amicus curiae that both this appellant and his wife had brothers and sisters still living in Taiwan who could not assume more responsibility for the ailing parents. The evidence reveals that though they have attempted to do so during their holidays, the relatives are working people who live some 200 kilometers from the parents' and in-laws' residences.

[11]      What factors established would assist me in reaching the conclusion that this appellant has met the requirements of paragraph 5(1)(c)? He no longer owns a home except the one in Toronto; upon his arrival and during the first three weeks that he was in Canada and before returning to Taiwan, he looked into schools and enrolled his two daughters in a Canadian highschool; the daughters have never left except for very brief periods and remain full-time students at York University; they have now obtained their Canadian citizenship; he has paid Canadian income taxes; his many visits abroad were to care for his parents and pursue a livelihood; the possibilities to dispose of his business in Taiwan are not opportune at this time. His business contacts, to justify his absences, are mostly in the Far East Asia.

[12]      As Dubé J. wrote in Siu Chung Hung [1996] F.C.J. No. 107, one should not be deprived of citizenship merely because he has to earn his livelihood and that of his family by doing business offshore.

[13]      Were there sufficient ties between this gentleman and Canada? Is his mode of living centralized in this country? I am satisfied that the absences are temporary in nature, that he expressed a clear intent to return and there exist sufficient factual ties with Canada to assert his residence during the periods of absence. As it has been often said, the residency requirement is not translated into actual physical presence in Canada but it also includes periods of absence from this country where sufficient ties exists between the appellant and this country.

[14]      In light of the evidence I have outlined above, I am satisfied this appellant has centralized his mode of living in Canada and I am hereby allowing both this appeal and that of Mrs. Liu.

             JUDGE

OTTAWA, Ontario

December 11, 1997