Hui, Re, docket T-2156-97

Date: 19980609

Docket: T-2156-97

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

CHEUNG WING DAVID HUI,

                                                                                                                                           Appellant.

                                                    REASONS FOR JUDGMENT

ROTHSTEIN J.

[1]         The Citizenship Court judge refused to allow the appellant's application for citizenship because he was not physically present in Canada the required period of time before his application and because she concluded that his periodic presence in Canada constituted only temporary stays. I have analyzed this case according to the criteria set forth in Re Koo, [1993] 1 F.C. 286 at 293.

1)        The appellant was in Canada for only about 1 week before returning to Hong Kong.

2)        The appellant's immediate family are in Canada

3)          As to the pattern of physical presence in Canada, the longest period of presence in Canada was 24 days with the average being 15 days. This is compared to absences from Canada of over two months on average.

4)          The extent of absences was 854 days out of 1095 days or 78% of the relevant time.

5)          The cause of the physical absences abroad is clearly not temporary. The appellant says he supervises the business that he sold when he left Hong Kong including making decisions as to what to sell and to whom to give discounts, and meeting suppliers. He has all the business relationships. Although he says he spends part of his time arranging to acquire merchandise for his Canadian business the time he spends in Canada is so brief that it is difficult to believe that he has much knowledge about the Canadian business.

6)          The quality of his connection with Hong Kong is clearly greater than that with Canada.

[2]         On balance, I must conclude that the appellant has not centralized his mode of living in Canada and cannot be said to regularly, normally or continuously live in Canada.

[3]         I would observe that cases such as this one highlight the conflict between the requirement of the Citizenship Act that an applicant for citizenship be present in Canada and the requirement that immigrants must still provide for themselves and their families and that they may not be able to do so through employment or the carrying on of business in Canada. Certainly it is preferable for the individuals involved, as well as for Canadian society generally, that immigrants be productive contributing members of society rather than dependent on Canada's welfare systems. Nonetheless, the requirement for citizenship is presence in Canada, either physical, or in accordance with a consideration of the type of criteria set forth in Re Koo when there is not the required physical presence.

[4]         While in some respects this is a sympathetic case, I must dismiss the appeal.

(Sgd.) "Marshall E. Rothstein"

Judge

Vancouver, British Columbia

June 9, 1998

                                             FEDERAL COURT TRIAL DIVISION

                           NAMES OF COUNSEL AND SOLICITORS OF RECORD

HEARING DATED:              June 9, 1998

COURT NO.:                                     T-2156-97

STYLE OF CAUSE:                         The Citizenship Act

v.

Cheung Wing David Hui

PLACE OF HEARING:                  Vancouver, BC

REASONS FOR JUDGMENT OF ROTHSTEIN, J.

dated June 9, 1998, 1998

APPEARANCES:

Mr. Peter D. Larlee               for Appellant

Ms. Julie Fisher                    for Amicus Curiae

SOLICITORS OF RECORD:

Larlee & Assoc.                   for Appellant

Vancouver, BC

Watson, Goepel                  for Amicus Curiae

Vancouver, BC