= T-519-96
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
CHING-HO HUANG,
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 was away from Canada for a total of 517 days in the four years preceding his application. 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 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 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 instant case, the appellant was admitted to Canada as a permanent resident as an entrepreneur and on June 23, 1992, he was advised by an Immigration Councillor in Vancouver that he had fulfilled all the investment conditions.
The appellant was born at Pingtung, Taiwan, in 1949 and landed with his wife and two daughters in Vancouver on August 20, 1991. An older daughter had arrived earlier and enlisted at a local college. The family first established itself in a rental apartment in Burnaby, B.C., and the following year the appellant purchased a $350,000 in North Vancouver, B.C.
All three children were enroled in B.C. schools and the appellant transferred all his personal savings accounts to Vancouver banks. He bought a car for the family's daily transportation, he is a member of the Taiwan Entrepreneur and Investor Association in British Columbia. He set up two companies, Cansun Forest Products Inc. on January 19, 1991, and Sky Forest Enterprise Ltd. on June 2, 1993.
The appellant is an international trader involved mostly in the export of lumber and pulp and paper products to the Orient as a representative of the two aforementioned Canadian companies for which he also acts as a consultant. His trips abroad have resulted in approximately $1,000,000 in sales per year. So as to ensure the penetration of Canadian products into the Orient, he has to travel extensively to that area. Meanwhile, his family is solidly and permanently established in North Vancouver and he tries to spend as much time as possible with them. Obviously, he would prefer to stay home and not to travel so extensively but that is the nature of his business.
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 there 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 in Orient 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 homes, others return home after work every day, others every week, and others after longer periods abroad.
The other members of the appellant's family are already Canadian citizens and it would be manifestly unfair to deprive the appellant from enjoying Canadian citizenship merely because the nature of his employment takes him abroad and away from his family for long periods. The most eloquent indicia of residency is the establishment of a person and his family in this country, coupled with a manifest intention of making the establishment their permanent home.
Consequently, this appeal is allowed.
O T T A W A
January 30, 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.