Date: 19991213
Docket: T-576-99
OTTAWA, ONTARIO, THIS 13th DAY OF DECEMBER 1999
PRESENT: MR. JUSTICE J.E. DUBÉ
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
and
YU CHEN HO
Respondent
ORDER
The appeal is dismissed.
Judge
Date: 19991213
Docket: T-576-99
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
and
YU CHEN HO
Respondent
REASONS FOR ORDER
DUBÉ J :
[1] The Minister of Citizenship and Immigration appeals under subsection 14(5) of the Citizenship Act ("the Act") and section 21 of the Federal Court Act, from a decision of Judge Somerville, dated January 29, 1999. In his decision Judge Somerville approved the application for citizenship of the respondent under subsection 5(1) of the Citizenship Act ("the Act").
[2] The respondent landed in Canada with his wife on February 13, 1991, and became a permanent resident. On October 31, 1997, he completed an application for Canadian citizenship.
[3] Since April 1991, the respondent has been employed with the DFS Group. He and his wife have purchased a home in Vancouver and established their residence there. They have no children. As residents they sponsored their parents to come to Canada, who landed in this country on June 1, 1995. They now reside in Vancouver with the respondent and his wife. As well, the majority of the respondent's family members are already living in Canada.
[4] During the relevant period from October 31, 1993, to October 31, 1997, the respondent was frequently outside of Canada on business for lengthy periods. He was absent from Canada for 960 days. He was physically present in Canada for only 500 days in the four years preceding the date of his citizenship application.
[5] On November 20, 1997, the Executive Vice-President of the DFS Group wrote to the Canadian Immigration Centre to the effect that the respondent is currently employed by DFS North America, a division of DFS Group L.P., a State of Delaware limited partnership. It owns and operates a retail store in downtown Vancouver. DFS Group L.P. is an affiliate of a larger group of companies which operate duty free and general retail stores catering to the international travelling public.
[6] The Vice-President of DFS Group Ltd. writes that with more than five years of experience at DFS, the respondent is a valuable human resources manager. He states that the respondent's experience with DFS, in their Taiwan and Canada operations, is invaluable to a multinational company. The respondent is required to travel outside of Canada for commercial purposes. His assistance and presence overseas are essential to DFS.
[7] In his Reasons for Judgment the Judge made a list of the pros and cons of the respondent's application for citizenship. He stated that there were only two cons: the first was that he did not reside physically in Canada for the required period; second, that the pattern of his travel also caused him some trouble. He listed eight pros, including investments, payment of taxes, efforts to find jobs in Canada, many relatives in Canada, substantial assets in this country, and the fact that the respondent and his wife no longer have any assets in Taiwan.
[8] I cannot find that the Citizenship Judge erred in law or in his appreciation of the facts. Continuous physical presence in Canada is not essential to meet the requirements of residency under the Act. The long standing decision of Re Papadogiorgakis1 makes it abundantly clear that a person with an established home of his own does not cease to be a resident in this country when he leaves it for temporary purposes whether he is on business, vacation or to pursue a course of study. Residency is chiefly a matter of the degree to which a person in mind and in fact settles into, remains or centralizes his ordinary mode of living with its accessories and social relations, interests and conveniences. Generally, residency is not based on the place where a person works but the home he or she returns to after work.
[9] It was open to the Citizenship Judge to grant citizenship based on the facts in the instant case. I would agree with my colleague Mr. Justice Lutfy in his summary of the standard of review of the decision of the Citizenship Judge in Lam v. Canada (M.C.I.)2 which reads as follows:
| [W]here citizenship judges, in clear reasons which demonstrate an understanding of the case law, properly decide that the facts satisfy their view of the statutory test in paragraph 5(1)(c), the reviewing judges ought not to substitute arbitrarily their different opinion of the residency requirement. It is to this extent that some deference is owed to the special knowledge and experience of the citizenship judge during this period of transition [emphasis added]. |
[10] Consequently, the appeal is dismissed.
OTTAWA, Ontario
December 13, 1999
Judge
__________________
1 [1978] 2 F.C. No. 208.
2 [1999] F.C.J. No. 410 at par. 33.
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