Date: 19981221
Docket: T-1341-97
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 -
KAM CHUEN FUNG,
Respondent.
REASONS FOR ORDER
WETSTON, J.
[1] This is a ministerial appeal from the decision of a Citizenship Judge wherein the judge approved the application of Mr. Fung for citizenship under subsection 5(1) of the Citizenship Act. The Citizenship Judge based his decision on the following: "despite a residence shortage of 708 days, the applicant through credible declaration of intent and the provision of irrefutable indicia has, within the Thurlow framework, given proof of both the establishment and maintenance of a Canadian centrality of mode of living".
[2] The Minister appeals on the ground that during the four years preceding the date of application for citizenship, the respondent did not accumulate three years of residence in Canada as required by paragraph 5(1)(c) of the Citizenship Act. The main reason Mr. Fung spent less time in Canada was because he had considerable difficulty in letting go of his business in Hong Kong which he had founded with his brother. Later, his brother bought his shares in his business. In Canada, he was involved to a certain extent in a company owned jointly with his brother which involved exporting speaker systems to Hong Kong. He testified that he received no income from this business.
[3] Mr. Fung was away at least 957 days, or possibly 1073 days, in the previous four year period. The Crown referred the Court to the decision of Reed J. in Re: Koo (1993) 1 F.C. 286 (F.C.T.D.). In reviewing the six factors outlined by Reed J., there is little doubt that Mr. Fung moved to Canada with his family but with respect to the other factors, I am not satisfied that Mr. Fung has sufficiently established that Canada is the place where he regularly, normally or customarily lives. I am satisfied that he was not physically present in Canada for very long prior to the application for citizenship. While his family is resident in Canada, I am satisfied that his pattern of physical presence in Canada is equally consistent with visiting Canada as it is with returning home.
[4] In his evidence, Mr. Fung indicated that he had enormous difficulty letting go of his business in Hong Kong and that he also maintained a considerable fondness for that city. There is little doubt that the extent of his absences was at least 957 days or possibly 1073 during the relevant period. Moreover, I do not consider that the physical absences during that period were temporary. The evidence suggests that Mr. Fung simply did not want to give up what he had in Hong Kong.
[5] I am also satisfied that the quality of Mr. Fung's connection with Canada is less substantial than that which existed with Hong Kong. While he did enjoy music with friends during his time spent in Canada, the evidence was insufficient to satisfy me that during the relevant period Mr. Fung integrated himself into Canadian society.
[6] Accordingly, the appeal shall be allowed.
"Howard I. Wetston"
Judge
Toronto, Ontario
December 21, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-1341-97
| 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 |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION, |
Appellant,
Respondent.
DATE OF HEARING: TUESDAY, DECEMBER 15, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: WETSTON J.
DATED: MONDAY, DECEMBER 21, 1998
APPEARANCES: Ms. Claire le Riche
Mr. Peter K. Large
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada
For the Appellant
21 Bradgate Drive,
| For the Respondent in Person |
610-372 Bay Street
Toronto, Ontario
M5H 2W9
Amicus Curiae
FEDERAL COURT OF CANADA
Date: 19981221
Docket: T-1341-97
| 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 |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION, |
Appellant,
Respondent.
REASONS FOR ORDER
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