Date: 20000529
Docket: T-25-99
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
-and-
SAI SO FUNG
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL J.
[1] The question in this appeal is whether, in the decision of 13 November 1999, the Citizenship Judge erred in approving the Respondent's application for Canadian citizenship pursuant to s.5(1) of the Citizenship Act (the "Act"). 1In my opinion, 2the answer to this question lies in whether the test cited by Thurlow, J. in Re Papadogiorgakis [1978] 2 F.C. 208 at 214 was applied as follows:
| 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 he 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. |
[2] In the present case, during three out of the four years preceding his application for citizenship, the Respondent was present in Canada only 386 days of a possible 1095 days. Upon landing in Canada in August 1992, the Respondent remained for two months, returned to Hong Kong for six months, returned to Canada for two months, and then returned to Hong Kong where he lived for approximately a year. During the following two years, the Respondent only returned to reside in his daughter"s residence in Canada for a total of approximately seven months in three visits.
[3] With respect to the residence issue, the Respondent made the following statement:
| My first and foremost intention was to be able to set up some form of business contacts so that I could continue with my business while staying and eventually retiring here in Canda [sic]. |
| After taken [sic] the past few years to try and set up new ventures, and now particularly with the recent slump in the Asian markets, the efforts seem in vain. By now, I feel that I have done enough flying around and I wish to settle into retirement life, which is best spent in Toronto, Canada where my family is presently residing. The fact of the matter is, where I come from, I have no immediate family, my business sustains itself, however, without a promising outlook, I am passing it onto [sic] my colleague. So far, I like what I have experienced here in Canada - the freedom of choice and being, something I believe may slowly diminish under the communist rule; I want to be with my family - being with family is a valuable Chinese culture; and I like the environment here - I can play lots of golf in various polished spaces of my choice and with lots of clean fresh air, something that I need but do not get any where I come from.3 |
[4] On this evidence, the Citizenship Judge found that the Respondent established a residence in Canada, and gave the following reasons for reaching this conclusion:
| Mr. Fung"s absence was to establish business relations between Canada and Hong Kong. He had no intention of staying away so long and always considered his home with wife and daughter in Thornhill his residential base. He has subsequently turned over his Hong Kong business to a colleague and will retire at his home in Canada.4 |
[5] I am satisfied that the Citizenship Judge"s finding that the Respondent established a residence in Canada cannot be supported given the above quoted evidence. It is very clear on this evidence that the Respondent"s main interest during the time period in question was his business activities off-shore; compared to this interest his visits to Canada were purely incidental. It is also clear that at the time his application was made, the Respondent was just contemplating retirement in Canada, and thus, the establishment of residence within the Country.
ORDER
[6] Accordingly, I grant this appeal. I make no award as to costs.
"Douglas R. Campbell"
J.F.C.C.
Toronto, Ontario
May 29, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
- and -
| DATE OF HEARING: MONDAY, MAY 29, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
REASONS FOR ORDER
| AND ORDER BY: CAMPBELL J. |
DATED: MONDAY, MAY 29, 2000
| APPEARANCES: Ms. Diane Dagenais |
| SOLICITORS OF RECORD: Morris Rosenberg |
| Deputy Attorney General of Canada |
88 Braeburn Drive
Thornhill, Ontario
L3T 4W8
FEDERAL COURT OF CANADA
Date: 20000529
Docket: T-25-99
Between:
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
Applicant
- and -
SAI SO FUNG
Respondent
__________________
1 S.5(1) of the Citizenship Act , R.S.C. ch. C-29 reads as follows: 5. (1) The Minister shall grant citizenship to any person who (a) makes application for citizenship; (b) is eighteen years of age or over; (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; ( d) has an adequate knowledge of one of the official languages of Canada; (e) has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship; and (f) is not under a deportation order and is not the subject of a declaration by the Governor in Council made pursuant to section 20. [Emphasis added].
2 According to my interpretive findings in MCI v. Wing Tung Thomas Yeung (F.C.T.D. No. T-1256-98, rendered 3 February 1999), the issue in appeals such as the one in the present case is whether the Citizenship Judge made a reviewable error.
3Applicant"s Application Record, pp. 21-22.
4Ibid, p. 6.
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