Federal Court Decisions

Date: 19971215

Docket: T-2871-96

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

     KWOK LEUNG HO,

     Appellant.

     REASONS FOR JUDGMENT

DUBÉ J:

[1]      The appeal is from a decision of a Citizenship Judge dated November 13, 1996, denying the appellant's application for Canadian citizenship on the grounds that he failed to comply with the residency rule imposed by paragraph 5(1)(c) of the Citizenship Act ("the Act"). This rule requires that an applicant maintains residency in Canada for three of the four years preceding the date of his application for citizenship.

[2]      The appellant was born in Hong Kong in 1953. He was admitted to Canada for permanent residence along with his wife and son on February 6, 1992. Subsequently, a second child was born in Canada. Along with his brother he purchased a house in Markham, Ontario. Both families have been living in the same home since 1992.

[3]      After his landing in Canada, he sold his business and his apartment in Hong Kong and established his family here. Both of his sons are in Canadian schools. He enroled himself and his family in the Ontario OHIP, obtained social insurance cards, a driver's licence, opened a Canadian bank account and obtained Canadian credit cards.

[4]      With his brother he operated the City Garden Restaurant at Niagara Falls employing 25 persons. Both brothers invested one million dollars in that business. He files his income tax returns in Canada. His father and mother, formerly of Hong Kong, are now deceased and the appellant's own family is all fully established in Canada. They are now Canadian citizens.

[5]      However, the restaurant in Niagara Falls was losing money and the appellant had to seek extra income. He therefore worked as agent for a textile factory in Hong Kong and he travels all over the world to find new clients for his employer.

[6]      The Citizenship Judge based her decision on the ground that at the time of his citizenship application the appellant had been physically present in Canada only 328 days of the 1461 day statutory period immediately preceding the date of his application.

[7]      As I have stated on many occasions, residency in Canada for the purposes of citizenship does not imply full-time physical presence. The place of residence of a person is not where that person works but where he or she returns to after work. Hence, an applicant for citizenship who has clearly and definitively established a home in Canada with the transparent intention of maintaining permanent roots in this country ought not to be deprived of citizenship merely because he has to earn his livelihood and that of his family by doing business offshore. The most eloquent indicia of residency is the permanent establishment of a person and his family in the country.

[8]      That principle was clearly established by the Associate Chief Justice of this Court, Thurlow J. (as he then was) in the well-known Papadogiorgakis case¹, when he said as follows at page 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 he 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.

[9]      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. The reason is that a liberal interpretation of the Act reflects the generous family values of our citizens.

[10]      Consequently, the appeal is allowed.

    

     Judge

OTTAWA, ONTARIO

December 15, 1997

__________________

¹      [1978] 2 F.C. 208 at 214.