Federal Court Decisions

     T-1584-96

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

     HON LAM YIU,

     Appellant.

     REASONS FOR JUDGMENT

DUBÉ J:

     The Citizenship Court Judge found that the appellant met all the requirements for citizenship set out in the Citizenship Act ("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 four years preceding his application the appellant has spent only 94 days in Canada and has been away from this country 1,366 days. 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 case¹ 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.

     In the instant case, the appellant, born in Hong Kong on December 1, 1949, arrived in Canada on August 17, 1990 as a landed immigrant. He was accompanied by his wife and two children. However, he remained only 10 days in Canada before returning to Hong Kong. During that brief period he established his family in a house he had already purchased in Brampton, Ontario, enrolled his children in the local schools and opened a bank account.

     The appellant is a certified accountant who owns and operates an accounting business in Hong Kong where he employs some 20 persons. In Hong Kong he lives with his mother, who is very sick, and takes care of her. He has a sister in Hong Kong who also looks after her mother. He claims that he has had a difficult time winding down his business in Hong Kong because his successor has not, as yet, acquired the professional membership he needs to operate the business. The appellant has made no effort to find employment as an accountant in Canada. Although he says he plans to retire here, he intends to do so from his accumulated savings and not from working in this country. On the whole, the evidence indicates that while the appellant has maintained ties with his family in Canada, his personal links to Canada are very fragile.

     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 away most of the time in doing business in Hong Kong.

     As I had the occasion to state in the Siu Chung Hung citizenship case², "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.

     However, in the instant case, the place where the appellant returns to after work is at the home of his mother in Hong Kong and not with his wife and family in Canada. This does not appear to be a temporary situation. Since he has made no effort to find work in this country and is in no hurry to transfer his business in Hong Kong to somebody else, there is no evidence of a transparent intention to maintain or even to establish roots for himself here at the present time.

     During the relevant period, he has travelled to Canada more as a visitor than as a resident returning home. His wife and children are already Canadian citizens and he himself will, I am sure, be granted Canadian citizenship some day when he really decides to make Canada his personal home and not only his family's home.

     Consequently, the appeal is dismissed.

O T T A W A

October 10, 1997

    

     Judge

__________________

¹      [1978] 2 F.C. 208.

²      T-384-95, January 26, 1996, not reported.