Date: 19980420
Docket: T-860-97
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 Court Judge
AND IN THE MATTER OF
QIMING GE,
Appellant
REASONS FOR JUDGMENT
GIBSON J.:
[1] The appellant appeals a decision of a Citizenship Court judge, dated the 14th of March, 1997, refusing his application for citizenship on the basis that he did not meet the residency requirement for Canadian citizenship that is prescribed by paragraph 5(1)(c) of the Citizenship Act. The letter advising the appellant of the decision provided no substantive explanation.
[2] The facts of this matter may be summarized as follows. The appellant was born in Beijing, China and is a citizen of the People's Republic of China. At the date of the hearing before me, he was 42 years of age. The appellant first came to Canada in 1988 when he was in the employment of an agency of the Chinese government concerned with promoting commercial and other relationships with Canada. He remained in Canada for approximately three years during which time his wife and son joined him here.
[3] Mr. Ge and his family returned to China. He quit his job and made arrangements to return to Canada on a work permit. He arrived in Canada in September of 1992 and assumed employment with Targa International Corporation, a Toronto based investment company involved in the negotiation of various investment projects in the natural resources, manufacturing, real estate and technology transfer sectors in China. Once again his wife and son joined him in Canada.
[4] He and his family first lived in rented premises, then acquired their own home, but shortly thereafter sold the home and returned to rented premises.
[5] Mr. Ge acquired many of the normal indicia of Canadian residence including a bank account, credit cards, a driver's licence, a retirement savings plan and life insurance. For a time he paid Canadian income tax.
[6] In 1995, his employer, Targa, purchased a substantial interest in World Wide Minerals Ltd., a publicly traded Canadian based company engaged in exploration for and development of mineral resources on a global basis. Mr. Ge became a vice-president of World Wide Minerals with responsibility for the corporation's opeations in China which are apparently quite extensive. In the autumn of 1995, he returned to China to open an office there and to manage operations in China. His wife and son followed him and all three remained in China. Since the spring of 1996, he has apparently not had a home, either rented or owned, in Canada. At the same time, he does not have a home in China or any other place. His furnishings are in storage in Canada. He has a post-office box in Canada. He has a telephone in Canada with voice mail which he checks with every day.
[7] Mr. Ge applied for Canadian citizenship on the 15th of April, 1996. He had become landed in Canada in March of 1994. In the four years preceding the date of his application for Canadian citizenship, his absences from Canada, apparently all on business, were reasonably frequent but short. That changed in October of 1995. He continues to live outside Canada, as do his wife and son, to this date although he expresses, with some confidence, a hope that the business situation in China will mature to the point that he will be able to return with his family to Canada by the end of 1998. In the meantime, family vacations are taken outside of Canada.
[8] Counsel for Mr. Ge acknowledged that, in the circumstances of an appeal such as this, I am not precluded from taking into consideration what has transpired since the date of Mr. Ge's application for citizenship.
[9] In Re Hajjar,1 Mr. Justice Lutfy wrote:
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In the absence of any statutory definition, the courts have interpreted the meaning of "at least three years of residence" in paragraph 5(1)(c) of the Act. In Re Papadogiorgakis, Associate Chief Justice Thurlow, as he then was, stated that the words "residence" and "resident" in paragraph 5(1)(c) are not limited to actual presence in Canada. |
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Some fifteen years later, my colleague Madam Justice Reed reviewed the case law that had developed in this Court since the leading decision in Re Papadogiorgakis. In Re Koo, she concluded that the appropriate test is whether Canada is the place where the person "regularly, normally or customarily lives" or has centralized their mode of existence. In making this determination, the relevant criteria include the length of the person's stays in Canada, the residence of the person's immediate and extended family, the extent and the reason for the physical absences, the quality of the connection with Canada in comparison with any other country and whether the time spent in Canada indicates a returning home as opposed to a mere visit. |
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In Re Ng, my colleague Mr. Justice Cullen, after reviewing the decisions in Re Papadogiorgakis and Re Koo, reiterated some of these criteria in more specific terms. He spoke of the person having established and maintained a home in Canada or, expressed differently, "established a residence in Canada, maintained a pied-à-terre in Canada and intended to reside in Canada." He also noted that the case law referred to the "indicia of residency" and the "quality of attachment" and that the stricter test, the quality of attachment, is gaining strength. |
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There are a number of decisions where this Court has maintained citizenship appeals where the appellant's absences were as lengthy as those in this case. Other recent decisions have been more restrictive. Parliament has not amended the definition of "resident" or "residence" in paragraph 5(1)(c) over the twenty years since Re Papadogiorgakis during which several judges of this Court have interpreted these provisions in a way which, in certain circumstances, accommodates lengthy absences. [citations omitted] |
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[10] In Re Leung2 and in Re Chang,3 I quoted with approval the following words of Mr. Justice Dubé in Re Lui-Tsun James Yun:4
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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. |
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[11] Against the foregoing authorities, I conclude that Mr. Ge does not meet the residency requirements of paragraph 5(1)(c) of the Act, taking into account not merely his absences from Canada prior to his application for Canadian citizenship, but the pattern that was established by the time he applied for Canadian citizenship and that has continued since. I am not satisfied that he ever "clearly and definitively" established a home in Canada. I am not satisfied that he has yet demonstrated a "transparent intention" of maintaining permanent roots in this country. He no longer has a home here and he has not had one for sometime. His wife and son are in China as is he. His son is in school in China. He takes vacations outside of Canada. To be weighed against these facts, his employer is in Canada though it has an establishment in China which he operates. He is paid in Canada into a Canadian bank account. He pays his living expenses in China through the use of Canadian credit cards. He has no home in China or elsewhere. His furniture is in storage in Canada. He has a post-office box here. He has a telephone listing and a voice mail box in Canada that he checks with daily. He has a driver's licence an RSP, life insurance and other indicia of his former life, and perhaps future life, in Canada.
[12] Canada is not where Mr. Ge returns after work though, in fairness, there may be no place that can now be identified as a place where he returns after work. Mr. Ge cannot be said, at least at this point in time, to have established himself and his family here in Canada. In the absence of such an establishment, his expressed intention of at sometime making Canada his permanent home can only be regarded as a speculative hope.
[13] For the foregoing reasons, I dismissed this appeal. I did so with regret. I am satisfied that Mr. Ge is sincere in his wish to make Canada his home. He supports that wish by maintaining a returning resident's permit. I am satisfied that if he is able to realize on his wish, he will some day make an excellent citizen of Canada.
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Judge
Ottawa, Ontario
April 20, 1998
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1 February 5, 1998, Court file T-1115-95 (F.C.T.D.), unreported.
2 January 22, 1998, Court file T-241-97 (F.C.T.D.)(unreported)
3 [1997] F.C.J. No. 1507
4 October 10, 1997, Court file T-2066-96, (F.C.T.D.), unreported.
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