Lau v. Canada (Minister of Citizenship and Immigration), docket T-2727-97

Date: 19981107

Docket: T-2727-97

     Appellant

     Respondent

     - and -

     Docket: T-2726-97

     Appellant

     Respondent

     REASONS for JUDGMENT

DENAULT, J:

[1]      The appellants, husband and wife, appeal by way of a trial de novo, from decisions of a citizenship judge dated November 3, 1997, dismissing the appellants' applications for citizenship on the ground that they did not comply with the residency requirement of paragraph 5(1)c) of the Citizenship Act. They failed to accumulate at least 3 years of residency in Canada within the 4 years immediately preceding the date of their application for citizenship.

[2]      Both appellants arrived in Canada on October 12, 1991, as landed immigrants. On November 30, 1991, they left Canada for 231 days. Prior to the date of their application for citizenship on July 9, 1996, the appellants were absent 1110 days, being short 745 days of the required 1095 days of residency.

[3]      The citizenship judge, after a review of the facts and the case law¹, concluded that the applicants did not maintain sufficient ties with Canada during their absences to have those absences count as periods of residence under the Citizenship Act.

[4]      It is apparent from the records that the appellant husband spent most of his time out of Canada, in Hong Kong, during the period prior to his application for citizenship. His wife accompanied him on each occasion. The male applicant testified, at the de novo trial, that his absences were for business purposes, in order to dispose of his interests in real estate and in a property management business in Hong Kong. During the first few weeks after their arrival in Canada in October 1991, the appellants lived with the husband's brother-in-law in Richmond, B.C. They then left for Hong Kong, came back in July 1992, and bought a residence in Richmond in September 1992, which they furnished with furniture purchased in Canada and personal items brought from Hong Kong, including a large Buddha statue², and secured social insurance numbers, drivers' licences and health insurance cards. They returned to Hong Kong in October 1992 and have since visited Canada for short periods of time ranging from 30 to 73 days on 5 occasions. As it appears from the records, the appellants have resided in Canada for less than a year (350 days) during the 4 years prior to their application for citizenship.

[5]      After a thorough examination of the records, I am not convinced that the citizenship judge has made any error by dismissing the appellants' applications on the basis of Muldoon J's decision in Pourghasemi, the same principles having been reiterated in more recent decisions³. Furthermore, based on the evidence filed at the de novo trial, I have concluded that the appellants did not establish residence in Canada following their arrival on October 21, 1991. They have always continued to maintain a residence in Hong Kong through one of the husband's companies. Their stays in Canada were only of a temporary nature, for short periods of time. In brief, the Court is not satisfied that the appellants have centralized their mode of living in Canada.

[6]      The appellants are free to apply again for a grant of citizenship based on evidence of their residence in Canada in a more recent period.

[7]      Both appeals are dismissed.

     J.F.C.C.

¹      Ronassen v. M.E.I. (September 16, 1982) T-708-82 (F..C.T.D.) and Re: Pourghasemi (1993), 62 F.T.R. 122 (F.C.T.D.)

²      The witness testified that his Buddhist faith requires that this statue be in his house at all times.

³      Re: Chingh Chih Chen Tan (January 21, 1998) T-2876-96; Re: Moa-Song Chang (February 5, 1998) T-1183-97.