Canada (Minister of Citizenship and Immigration) v. Fung, docket T-2221-97

Date: 19990531

Docket: T-2221-97

BETWEEN:

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Appellant

     - and -

     YUI CHING FUNG

     Respondent

     REASONS FOR JUDGMENT

DUBÉ J:

[1]      The Minister appeals the decision of the citizenship judge on the ground that during the four years preceding the date of his application for citizenship, the respondent did not satisfy the residency requirement under paragraph 5(1)(c) of the Citizenship Act ("the Act").

[2]      In his decision, the citizenship judge adopted, word for word, the letter submitted to him by Perfect Link Consultants Ltd. on behalf of the respondent. By itself, this cannot be construed as a fatal flaw, but the citizenship judge would have been more helpful if he had provided his own reasoning behind his decision.

[3]      This appeal hearing was held under the old Rules, the notice of appeal having been filed on October 14, 1997. Consequently, the respondent was allowed to testify and he confirmed most of the essential facts outlined by his consultants in their letter.

[4]      The respondent and his wife both landed in Canada on October 20, 1993. They have no children. Before leaving Hong Kong they sold their home and upon arriving in Canada they purchased a house in the town of Markham, in the Regional Municipality of North York. After having tried, unsuccessfully, to find employment in the area, he incorporated his own company, Forthouse International Ltd., and started to do trading in the Far East, mostly in Hong Kong and China, selling Canadian tobacco through his main client Kirby House International Ltd. of Hong Kong.

[5]      The very nature of his business requires the respondent and his wife, who is a market development consultant, to travel extensively. Since 1996, they have been promoting Ontario tobacco products and have maintained contact with the Ontario Tobacco Board. The respondent's parents, his brother and two sisters are all Canadian citizens. They now live separately from the respondent and his wife and they are not involved in his business.

[6]      The respondent has no warehouse and no employees besides himself and his wife. He operates partly from his own home and he also has access to the office facilities of Perfect Link Consultants Ltd. In Hong Kong, he and his wife stay in an apartment provided by Kirby House. In China, they live in hotels and rented apartments. They have no other home in the world but the one at Markham, Ontario. In that town, he has joined Chinese associations and Chinese community activities. They both have Canadian RRSPs. He pays municipal property tax and has voted municipally at an advanced poll. Their home at Markham is not rented out in their absences, but is occupied exclusively by themselves.

[7]      The citizenship judge did not provide a detailed analysis of the facts of the case and the jurisprudence in the matter, but concluded his decision as follows:

[8]      The "Thurlow Framework" is the well-known judgment of Thurlow, A.C.J., in re Papadogiorgakis¹ wherein the learned Associate Chief Justice (as he then was) held that continuous physical presence in Canada is not essential to residency under the Act provided the applicant centralizes his mode of living in this country and maintains it.

[9]      Although the instant case can be described as "border line", I cannot find that the citizenship judge erred in law. The respondent has clearly established a residence in Canada and has not abandoned it in spite of his obligatory travels in Asia to earn a living. He has no other home but the one in Markham, Ontario, the town where all his parents live and where he always returns after his travels abroad.

[10]      Consequently, the appeal of the Minister is dismissed.

OTTAWA, ONTARIO

May 31, 1999

     Judge

     ¹      [1978] 2 F.C. (T.D.) 208.