Date: 19981109
Docket: T-61-98
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
SHUN SHING CHOI
Appellant
REASONS FOR JUDGMENT
REED J.:
[1] The appellant appeals from a decision of the Citizenship Judge refusing to approve the appellant's application for citizenship because he had not met the residency requirements of paragraph 5(1)(c) of the Citizenship Act. In order to be granted citizenship an appellant must have accumulated at least three years of residency (1095 days) in Canada within the four year period preceding his application for citizenship. The appellant was absent 1,108 days during the relevant period.
[2] There is jurisprudence that holds that in some circumstances absence from the country can be deemed to be residence within it. In general this can be the case where the person has truly moved his or her principal place of residence to Canada but finds it necessary to be out of the country for extended periods of time for temporary purposes. Among the factors that can be relevant in assessing whether absence will be deemed presence are: the length of time the applicant was absent as opposed to present; the cause of the absence and whether it is temporary; the pattern of absences and whether they disclose a returning home to Canada, as often as possible, or merely visits to Canada; whether the absences were preceded by a significant period of residence in the country; whether the applicant's immediate family and extended family live in Canada; whether the quality of the connection to Canada is more substantial than that to any other country.
[3] As I had not read the material on the file before the hearing of the appeal, I reserved judgment in order to do so. Having now reviewed that material, and having heard the appellant's evidence, I cannot conclude that the appellant's absences should be considered deemed residence. As noted, his absences were extensive. This is not a border line case. The reason for the absences was not a temporary one. The appellant's work is abroad. He sells optical (equipment) lenses for a Hong Kong company. A Canadian company was created in 1993 for which he formally works as an employee, declaring an income for Canadian income tax purposes of approximately $15,000 to $20,000 annually. The arrangement that appears from the documentation has all the earmarks of a shell, designed on the advice of a consultant, in an attempt to disguise the appellant's true source of income and real business activity.
[4] The absences were not preceded by any significant period of residence in Canada. They do not have a pattern from which one could conclude that he returned home after every business trip, rather than arranging to visit from time to time when his business commitments made such possible.
[5] The one factor that does weigh in his favour is that his two children are in school here, one at university, the other in secondary school, and they have been for some years. And, he and his wife purchased a home here before arriving as landed immigrants; they have acquired a car. He has acquired an Ontario Health Card, a driver's license, insurance, a SIN number, credit cards and the like. These in general tell little about the quality of a person's residence here, however, since they would be acquired in any event on the advice of a consultant as necessary indications of residence, whether one was really resident here or not.
[6] In some sense the way the law operates is very unfortunate. It is often true that the wife and mother in a family unit, and the children, can spend three years in the country and then obtain citizenship, after which they can remain abroad for as long as they wish and retain that citizenship. The husband/father however, as the economic support of his family, does not always have the option of spending the required amount of time in Canada. Nevertheless, I must apply the law. I cannot conclude on the facts of this case that the appellant has adopted Canada as his principal place of residence. I cannot conclude that he has established and maintained a stronger connection to Canada than with any other country.
[7] For the reasons given the appeal must be dismissed.
"B. Reed"
Judge
TORONTO, ONTARIO
November 9, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-61-98
| 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 |
| SHUN SHING CHOI |
DATE OF HEARING: TUESDAY, NOVEMBER 3, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: REED, J.
DATED: MONDAY, NOVEMBER 9, 1998
APPEARANCES: Ms. Robin Seligman
For the Appellant
Mr. Peter K. Large
Amicus Curiae
SOLICITORS OF RECORD: Robin Seligman
Barrister & Solicitor
| 1000 - 33 Bloor St. E. Toronto, Ontario |
| M4W 3H1 |
For the Appellant
Peter K. Large
610-372 Bay Street
Toronto, Ontario
M5H 2W9
Amicus Curiae
FEDERAL COURT OF CANADA
Date: 19981109
Docket: T-61-98
| 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 |
| SHUN SHING CHOI |
Appellant
REASONS FOR ORDER