Leung (Re), docket T-655-96

     T-655-96

     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

     Jam Tat Leung,

     Appellant

     REASONS FOR JUDGMENT

     This is an appeal from the decision of a Citizenship Judge who denied this appellant Canadian citizenship on December 4, 1995. It was determined that Mr. Leung did not meet the residency requirement under paragraph 5(1)(c) of the Act which requires that an applicant for Canadian citizenship must have accumulated at least three years of residency in Canada within the four years immediately proceeding his or her application. The Citizenship Judge found that the appellant had only been physically present in Canada for 179 days leaving him 916 days short of the required 1,095 days to meet the residence requirement. Pursuant to subsection 15(1), the Citizenship Judge also did not find any grounds under subsections 5(3) and 5(4) of the Act to recommend an exercise of Ministerial discretion in the applicant's case.

     Since appeals to the Federal Court under subsection 14(5) of the Citizenship Act are trial de novo, I am permitted to consider all of the evidence including the appellant's testimony and that of any other witness.

     In his notice of Appeal the appellant submits as follows:

1. I have resided in Canada for more than 1095 days since March 11, 1992 ...and I have satisfied the requirements of Section 5(1)(c) as to the requisite length of residency as that section is properly interpreted under Canadian law and such other grounds as Counsel may advise.

     The appellant was born in Guangdong (Canton), China, on September 15, 1950. He was landed with his wife in July 26, 1990; his three sons were landed a week later because they had gone to the U.S. for holidays. Mr. Leung immigrated to Canada under the Investor class and originally invested $150,000.00 in the Saskatchewan International Capital Corporation. Unfortunately, he has lost all of this fund; the investors have sued the managers for mismanagement but have yet to recover.

     The appellant did not work in Canada when he first arrived; before leaving he had sold his business interests in Hong Kong and was being paid in instalments. Unfortunately, his buyers defaulted on their payments and the appellant sued them in the Supreme Court of Hong Kong. This case lasted from mid of 1991 to the early part of 1993; this required his almost continued presence in Hong Kong.

     On August 12, 1993, the appellant with another partner set up a company in Canada, "Multiway Enterprise Ltd." The company exports automobiles from Canada to Hong Kong mainly for the China market as well as Japan. The company also exports industrial machinery and building material to the Orient.

     Prior to his landing, the appellant purchased a home in Canada in 1990. He presently lives there with his wife and three children. The appellant has paid property taxes on this residence and his income tax returns indicate that he still owns a rental property in Hong Kong. He has filed personal income tax returns for 1991 and 1992 and holds a valid B.C. provincial driver licence; he pays premiums in the B.C. health care plan; he holds two joint accounts with his wife one at the Hong Kong Bank of Canada and the other at the Royal Bank. His wife and three children became Canadian citizens in 1994 and his children have continued to attend school in Coquitlam, B.C. since their arrival in 1990.

     This appellant immigrated from mainland China to Hong Kong as a five year old child. He attended school and graduated with a high school diploma as an electrical technician. He subsequently had two businesses in China, an electric shop and an electric lighting installation business. He also owned an industrial properly which he leased. He came to Canada first in 1988 as a visitor along with his wife and returned in 1989 at which time he bought the home which he still occupies in Coquitlam, B.C. He then made his applications in Hong Kong to come to Canada under the investor category and was landed in 1990. Prior to leaving, he had sold both of his businesses as well as his home in Hong Kong, his two cars and, when moving to this country, he brought along his furniture as well as other household goods and effects. He retained the industrial property in Hong Kong since it was subject to a five year lease which was not to terminate until some time in 1992 or 1993.

     Within a short period of time after arriving in this country, he was experiencing financial difficulties with his former partner in Hong Kong to whom he had sold his major income producing business and eventually this lead to a very tragic and difficult long term law suit that did not terminate until early 1993. Upon his return following the law suit, he was now aware that the company in which he had invested in Saskatchewan was about to go into receivership and there was no chance of deriving any income or to be hopeful of recovering his capital investment. He then invested $60,000 in his present business, Multiway Enterprise Ltd., and was able to secure a loan in Hong Kong for $100,000 which he has invested in a restaurant in British Columbia. The export business employs two people and the restaurant six. These investments and travel abroad were necessary in order to create work for himself and generate income. Throughout his many and long absences, which essentially have never exceeded more than three or four months, he has always returned to his family in Canada and always maintained his ties as well as his permanent residence in this country.

     In Papadogiorgakis¹, Thurlow C.J. established the principle that full-time physical presence in Canada is not an essential residential requirement; that a person with an established home of his own in Canada does not cease to be resident when he leaves for temporary purposes, whether on business, or vacation, or to pursue a course of study.

     In Huag², concerning the refusal of citizenship application of a permanent resident of the entrepreneur class based on interrupted residence, Dubé J. wrote:

"Where an applicant for citizenship has clearly and definitely established a home in Canada with the transparent intention of maintaining permanent roots in this country, he ought not be deprived of citizenship merely because he has to earn his livelihood and that of his family by doing business offshore. Some Canadian residents may work from their own homes, other return home after work every day, others every week, and others after longer periods abroad"

     In this case, the appellant entered Canada under the investor class and left the country on several occasions for business purposes.

     Clearly, this claimant severed all ties in Hong Kong except a leased industrial premises which is presently, as he indicated to the Court, still for sale. There is ample evidence of severance with his former place of residence; in his Canadian income tax returns he even declares the rental income from this industrial property in Hong Kong. He severed all of his ties and certainly his conduct demonstrates that he wishes to remain and reside in Canada. The fact that he has returned to Hong Kong and mainland China to conduct business is not sufficient to disestablish him from this country. This case appears to be on all fours with the decision of In Re Ning, reported at 35 Imm. L.R. 162, where Mr. Justice Cullen analyses the tests in determining whether very lengthy absences which were business related would meet the requirement of constructive residence.

1.      Physical presence in Canada.

     There is no doubt that shortly after landing, this appellant made numerous visits to Hong Kong for business purposes.

2.      Residence of appellant's immediate family and dependents

     In this particular case, the appellant's wife and three children were landed at the same time and his wife has only accompanied him on two trips; through the entire time that he visited Hong Kong she remained in Canada as well as the children.

3.      Pattern of physical presence - returning home or merely visiting Canada

     It is conceivable that one may have extensive travel outside this country, returning home now and again to the family residence, but it appeared evident from what the appellant told the Court that even when he travelled abroad he never stayed with relatives, he always settled into hotels in Hong Kong or in mainland China.

4.      Absences caused by a temporary situation

     I am satisfied that the appellant's absences were caused by two factors. Firstly, the loss of investment in this country and his need to earn a living through his export business.

5.      Quality of connection with Canada more substantial than with Hong Kong

     There is no doubt that in this particular case the appellant's family has remained here. He has no family residing in Hong Kong and no business situate in that country since he disposed of them before departing.

     Though the absences from Canada are significant, there is no evidence that this appellant made any further investments in foreign countries, except to conduct sales in mainland China through Hong Kong.

     I am therefore satisfied that the absences should be considered temporary in nature and that the appellant demonstrated a clear intent to return to Canada. There are sufficient physical ties to Canada to assert residence during the periods of absence. The appeal is therefore allowed.

JUDGE

OTTAWA, Ontario

October 27, 1997

__________________

     ¹ Re Papadogiorgakis (1978) 2 F.C. 208.

     ² Re Huag (1997) F.C.J. No. 112 (F.C.T.D.).