Canada (Minister of Citizenship and Immigration) v. Chey, docket T-717-98

Date: 19981029

Docket: T-717-98

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

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION,

     Appellant,

     - and -

     MAN HO TONNY CHEY,

     Respondent.

     REASONS FOR JUDGMENT

WETSTON, J.

[1]      This is an appeal by the Minister and the only issue is residence under s. 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29, which reads as follows:

5.(1) The Minister shall grant citizenship to any person who

....

(c) has been lawfully admitted to Canada for permanent residence, has not ceased since such admission to be a permanent resident pursuant to section 24 of the Immigration Act, and has, within the four years immediately preceding the date of his application, accumulated at least three years of residence in Canada calculated in the following manner:

(i) for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and

(ii) for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence.

[2]      Mr. Chey is in the international moving business and acts as a consultant to a company in Hong Kong. He worked for that company before coming to Canada. He also owns an apartment in Hong Kong as well as several proprieties in Canada.

[3]      His wife, son, brothers and sister are all Canadian citizens. The Respondent was absent from Canada for a total of 933 days during the relevant period preceding the date of his application for citizenship.

[4]      I have reviewed a number of decisions and I find it useful to consider the following six questions posed by Madame Justice Reed in Re Koo, [1993] 1 F.C. 286 at 293:

(1) was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship?

(2) where are the applicant's immediate family and dependants (and extended family) resident?

(3) does the pattern of physical presence in Canada indicate a returning home or merely visiting the country?

(4) what is the extent of the physical absences - if an applicant is only a few days short of the 1,095-day total it is easier to find deemed residence than if those absences are extensive?

(5) is the physical absence caused by a clearly temporary situation such as employment as a missionary abroad, following a course of study abroad as a student, accepting temporary employment abroad, accompanying a spouse who has accepted temporary employment abroad?

(6) what is the quality of the connection with Canada: is it more substantial than that which exists with any other country?

[5]      After considering these questions and assessing the evidence in this case, I have no doubt that Mr. Chey has not centralized his mode of living in Canada. While he has done most of the typical and expected things to establish a connection to Canada, in my opinion he has fallen short of what is required to find that he "regularly, normally or customarily" lived in Canada during the relevant period.

[6]      I do not conclude that Mr. Chey's own connection to Canada is more substantial than his connection to any other place. He moved his family from Hong Kong to Canada and purchased a home. He then returned almost immediately to Asia for, in his words, career reasons and to accumulate money for his retirement. I do not find that these absences should be included for the purposes of s. 5(1)(c) of the Act.

[7]      The appeal by the Minister is allowed.

                         (Sgd.) "Howard I. Wetston"

                                 Judge

Vancouver, British Columbia

October 29, 1998

     FEDERAL COURT TRIAL DIVISION

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT NO.:              T-717-98

STYLE OF CAUSE:          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

                     THE MINISTER OF CITIZENSHIP

                     AND IMMIGRATION,

     Appellant,

                     - and -

                     MAN HO TONNY CHEY,

     Respondent.

PLACE OF HEARING:              Vancouver, BC

REASONS FOR JUDGMENT OF WETSTON, J.

dated October 29, 1998

APPEARANCES:

Ms. Emilia Péch                      for the Applicant

Mr. Man Ho Tonny Chey                  on his own behalf

SOLICITORS OF RECORD:

Morris Rosenberg                      for the Applicant

     Deputy Attorney General

     of Canada

Mr. Chey                          on his own behalf

Barrister and Solicitor

North Vancouver, BC