Yiu v. Canada (Minister of Citizenship and Immigration), docket T-1543-98

     Date: 19990922

     Docket: T-1543-98

Ottawa, Ontario, this 22^nd day of September, 1999

Present: The Honourable Mr. Justice Pelletier

BETWEEN:

     LEUNG SAI YIU

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER AND ORDER

[1]      Mr. Leung and his family came to Canada as a landed immigrant as an entrepreneur on May 23, 1989 with his wife and two children. He bought a house in the lower mainland of British Columbia where he and his family lived. He established a restaurant which employed 6 people and as a result, he met the conditions of entry under the entrepreneur program. He applied for and received all of the normal indicia of residence, social insurance number, health card, driver"s license. He opened a bank account and took out a mortgage to pay for his new home, thus showing an understanding of the traditional Canadian way of life.

[2]      On September 1, 1994 he was hired as sales manager for Precision Fashion Manufacturing. He also incorporated his own company, Richmond Brothers Enterprises (Canada) Ltd. Both of these companies did business in Hong Kong and the far east with the result that Mr. Leung was absent from the country for long periods of time. While in Hong Kong, the appellant stayed in a room in his brother"s flat. In February 1997, he purchased a second house in Woodbridge, Ontario for business purposes. He maintains no home outside of Canada.

[3]      The appellant"s family remained in Canada while he travelled. In his residence questionnaire he indicates that, while away, he kept in touch with his family on "an almost daily basis". He says he participates fully in his family"s life in Canada and is known to his children"s teachers. He concludes the questionnaire by saying:

[4]      The Citizenship Judge rejected Mr. Leung"s application for citizenship because he found that while Mr. Leung had established Canadian residence, he had done little or nothing to maintain it. The Citizenship Judge believed that there was no evidence of any sustained involvement in the "accessories and social relations" demanded by the jurisprudence.

[5]      Whatever the proper test of residence for purposes of s. 5 (1)(c) of the Citizenship Act, it is recognized by a cross section of judges that absence from the country for the purpose of earning one"s living and supporting one"s family does not interrupt residence if residence has been established. In Re Yuen Wah Stephen Lo , [1996] F.C.J. 1585, a decision of Mr. Justice MacKay, the applicant came to Canada from Hong Kong as a permanent resident on July 20, 1990. He moved directly into his own home, and acquired all the usual trappings of residence: driver"s license, health coverage, bank accounts etc. Unable to find employment in Canada, he accepted a position with his former employer in 1992 which required him to be out of the country for lengthy periods of time. In the four years preceding his application for citizenship, he had only been in the country for 475 days, a shortfall of 620 days with respect to the 1095 days referred to in the Act. MacKay J. found that he had established and maintained his residence in Canada and allowed the appeal. The similarities with the present case are numerous and persuasive.

[6]      There are a number of other cases to the same effect:

     Re Siu Chung Hung (1996), 106 F.T.R. 236, 1996 F.C.J. No 107 (Dube J.)

     Re Stephen Yu Hung Lai (1994), 85 F.T.R.62, 1994 F.C.J. No 1483 (Noël J.)

     Re Kin Sum Chan (1995), 91 F.T.R. 305, 1995 F.C.J. No. 333 (Denault J.)

[7]      As a result, the Citizenship Judge did not properly apply the test which he apparently chose to apply, that set out by Mr. Justice Thurlow in Papadogiorgakis because he misdirected himself on the question of maintaining residence.

[8]      The Citizenship Judge appeared to be looking for some additional activity while in Canada which demonstrated an integration into Canadian society. The presence of such activity negates an inference that Canada is not the centre of one"s usual existence. The absence of it does not prove the contrary, since everyone has a different capacity and tolerance for social activity. Those with a lower tolerance do not necessarily have less attachment to the country.

[9]      At the opening of the hearing of this matter, counsel for the appellant drew the Court"s attention to the fact that the respondent Minister had failed to file an application record, notwithstanding having made a motion seeking an extension of the time for the filing of her record. Notwithstanding the fact that the order was made, no record was filed. Counsel for the Minister advised that for some reason unknown to her, an order or direction was made setting the hearing date for this matter before the motion for an extension of time had been dealt with. When leave to file the motion record was received, there remained only 2 days within which to comply with the deadline, a feat which was not possible given counsel"s other commitments. Counsel for appellant asked that the respondent be denied status to address the court as a result of the non-compliance. I declined to make such an order. Counsel for the appellant candidly admitted that he had discussed the case with counsel for the Crown and could not say that he was prejudiced by the failure to file a motion record. He did, however, suggest that the case might be an appropriate one for costs.

[10]      It is not a trivial matter for a party to fail to file a document required by the Rules. If an adjournment is required as a result, an award of costs may well be an appropriate measure. In this case, no adjournment was required and the failure to do so was explained to my satisfaction. In the circumstances, notwithstanding Mr. Robbin"s eloquent submissions, I decline to make an order as to costs.

     ORDER

     For the reasons set out above, the appeal is allowed..

     Judge