T-2004-96
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
SEE
HOK SAMUEL LAI,
Appellant.
REASONS
FOR JUDGMENT
DUBÉ J:
This appellant met all the
requirements for citizenship set out in the Citizenship Act ("the Act")
except for the requirement of residence. Under subsection 5(1)c) of the Act,
an applicant is required to have accumulated at least three years of residence
in Canada within the four years immediately preceding his or her application.
In the instant case, the appellant
came to Canada as a foreign student in August 1983. He graduated from high
school and obtained a bachelor of engineering from McMaster University and a
master of business administration from the University of Toronto. As a
student, the appellant lived with his two sisters who are now Canadian
citizens. After graduation, he moved back to Hong Kong in 1991 leaving his clothing,
books and all personal belongings in Canada. He returned to Canada with his
mother and sisters in May 1992 as a dependent. His mother had purchased a
house in Mississauga, Ontario, in 1990. The family transferred all their
settlers effects from Hong Kong to Mississauga, obtained social insurance
numbers, health cards, library cards, Ontario's driver licences, opened bank
accounts, and generally establishing themselves in a permanent fashion in this
country.
The appellant was required to travel
to Hong Kong on several occasions on behalf of his Canadian employer, Kei Lai
(Canada) Ltd., an Ontario corporation specializing in the trading of ladies'
and men's fashion. As marketing manager, the appellant was responsible for
product sourcing and developing contacts with manufacturers and suppliers in
Hang Kong.
The appellant applied for jobs in
Canada but was not successful at the time. He has now been hired by a Toronto
accounting firm from which he prepares income tax returns.
He married in July 1995 a Canadian
citizen who was working for the Toronto Dominion Bank. He knew her as a
student at McMaster University. The young couple had purchased a house in
Markham, Ontario, in April 1997. Before that date, they were living with the
appellant's mother. The latter along with the two aforementioned sisters and a
third one are now all Canadian citizens.
Full-time physical presence in Canada
is not an essential residential requirement. That principle was clearly
established by the Associate Chief Justice of this Court, Thurlow A.C.J., as he
then was, in the well-known Papadogiorgakis case wherein he said as follows,
at p. 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 the 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.
That landmark decision has lasted 18
years and Parliament has not seen fit to amend the Act so as to circumscribe
its impact. Thus, a liberal interpretation of the Act truly reflects the
generous family values of our citizens.
As mentioned by Thurlow A.C.J. in the
above Papadogiorgakis case, a person with an established home of his own
in Canada does not cease to be a resident here when he leaves for temporary
purposes, whether on business, or vacation, or to pursue a course of study. In
the above mentioned case, the student applicant for Canadian citizenship was
away to university in the United States, whereas in the instant case the
appellant is often away on business.
As I had the occasion to state in the
Siu Chung Hung citizenship case,
which is quite similar to this one, "the place of residence of a person is
not where that person works but where he or she returns to after work".
Where an applicant for citizenship has clearly and definitively established a
home in Canada with the transparent intention of maintaining permanent roots in
this country, he ought not to 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 home, others return home after work
every day, others every week, and others after longer periods abroad. The most
eloquent indicia of residency is the establishment of a person and his
family in the country, coupled with a manifest intention of making the
establishment their permanent home.
Consequently, this appeal is allowed.
O T T A W A
October 10, 1997
Judge
Email this Content