Date: 19981222
Docket: T-2220-97
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
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Appellant,
- and -
SUM CHAN,
Respondent.
REASONS FOR ORDER
WETSTON J.:
[1] This is an appeal brought under s.14(5) of the Citizenship Act on behalf of the Minister from the decision of a Citizenship Judge dated August 26, 1997, wherein the respondent's application for a grant of citizenship was approved. The issue in this appeal is residence under paragraph 5(1)(c) of the Act.
[2] The respondent was born in China and acquired landing in the investor category on July 30, 1992, when he arrived in Canada with his wife and three children. He applied for citizenship on November 10, 1995. The respondent was absent from Canada for 742 days from the date he arrived in Canada to the date of his application for citizenship. During that period he was physically present in Canada for only 456 days, which represented a shortfall of 639 days with respect to meeting the minimum residence requirement of 1,095 days under the Act. The respondent left Canada approximately two months after his arrival and was frequently absent thereafter during the next three years. For the most part it can be said that his absences totalled to a longer duration than the periods spent in Canada. In his evidence, he stated that, during the first six months, he returned to Hong Kong to terminate the employees of the business that he sold and more importantly to care for his elderly widowed mother, who remained in Hong Kong.
[3] Mr. Chan used an interpreter throughout. He testified that he has taken no English courses. He testified that he was unable to do so because of scheduling problems given his frequent travel to Hong Kong. He testified that the main reason for returning to Hong Kong was to be with his mother who was refused landing for medical reasons. His mother had lived with him prior to his departure for approximately twenty years, and was emotionally distressed. He was uneasy about leaving her and therefore returned often to be with her. The respondent has a brother in Hong Kong who appears to be physically challenged. He testified that he stayed in his daughter's flat in Hong Kong and not with his mother since her flat was too small.
[4] He testified that he sold everything in Hong Kong and that his home is now in Toronto. He has purchased a home, he owns three cars, has a social insurance number and a driver's license, and belongs to a temple. His wife also travelled to Hong Kong since she had an elderly ill father who, according to her evidence, required her care. On occasion, they travelled together, and on other occasions they would spell each other off.
[5] The appellant relied on a number of decisions and, in particular, Re: Koo [1993] 1 F.C. 286 (F.C.T.D.) at 293 - 94. The respondent was clearly out of Canada for a significant period of time. He was in Canada only a short time before his first departure. On the first occasion he left after 64 days and remained away for 86 days. He then came back for 45 days, and left for another 86 days. He then returned for 22 days and left for another 142 days. The absences remained consistent and significant during the relevant period. While it is clear that his children were in Canada, his spouse was also in Hong Kong a great deal of the time. It is clear that the main reason, except initially, was to be with his mother.
[6] The pattern of his physical absences is not consistent with the fact that he was returning home to Canada. While there is no doubt that he bought a home and his children are here, he pays little Canadian tax on his world income and his returning to Hong Kong was equally consistent with returning home as it was with visiting Hong Kong. Moreover his evidence is as consistent with his visiting his family in Canada as it was to returning home to his family in Canada.
[7] It is also my opinion that the absences were not temporary. They were ongoing, continual and of an indefinite duration. With respect to the quality and extent of his attachment to Canada I am satisfied that there is little evidence of any integration into Canadian society. There was insufficient evidence for me to conclude that Canada was the country in which the respondent regularly, normally or customarily lives.
[8] Despite these unfortunate circumstances, the respondent must show a greater quality of attachment to Canada in order for the absences to be considered temporary. I find, therefore, that the appellant, despite the sympathy raised by his case, does not meet the residency requirements of the Citizenship Act. Consequently, the appeal shall be allowed.
"Howard I. Wetston"
Judge
TORONTO, ONTARIO
December 22, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-2220-97
| 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 |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION, |
Appellant,
| - and - |
| SUM CHAN |
Respondent.
DATE OF HEARING: TUESDAY, DECEMBER 15, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: WETSTON J.
DATED: TUESDAY, DECEMBER 22, 1998
APPEARANCES: Mr. Stephen H. Gold
| For the Appellant |
| Mr. Sheldon Robins |
| For the Respondent |
Mr. Peter K. Large
| Amicus Curiae |
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada
For the Appellant
| Sheldon M. Robins |
Barrister & Solicitor
| 2 St. Clair Ave. East, Suite 318 |
| Toronto, Ontario |
| M4T 2T5 |
| For the Respondent |
| Peter K. Large |
610-372 Bay Street
Toronto, Ontario
M5H 2W9
Amicus Curiae
FEDERAL COURT OF CANADA
Date: 19981222
Docket: T-2220-97
| 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 |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION, |
Appellant,
| - and - |
| SUM CHAN |
Respondent.
REASONS FOR ORDER