Date: 19980122
Docket: T-241-97
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 Court Judge
AND IN THE MATTER OF
CHUN HON (TONY) LEUNG,
Appellant.
REASONS FOR JUDGMENT
GIBSON, J.:
[1] The appellant appeals a decision of a Citizenship Court Judge, dated the 18th of December, 1996, refusing his application for citizenship on the basis that he did not meet the residency requirement for Canadian citizenship that is prescribed by paragraph 5(1)(c) of the Citizenship Act. The learned Citizenship Court Judge wrote:
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According to the evidence in your file and presented to me at your hearing, your date of landing was May 9, 1993, your absences from Canada total 762 days in the four years immediately preceding your application (October 18, 1995). During this period you were physically present in Canada for only 333 days. In these circumstances, you had to satisfy me, in order to meet the residence requirement, that your absences from Canada (or at least a part of these) could be counted as a period of residence in Canada. |
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Federal Court precedents require that, to establish residence, an individual must show, in mind and in fact, a centralization of his or her mode of living in Canada. If such evidence is established, absences from Canada do not affect this residence as long as it is demonstrated that the individual left for a temporary purpose only and maintained in Canada some real and tangible form of residence. I have, therefore carefully examined your case to determine whether you had established residence in Canada prior to your absences so that those absences could nevertheless be counted as periods of residence. |
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After having considered the evidence that I received both by way of testimony and documentation, I could not find that you have established a residence in Canada by virtue of a centralized mode of living in Canada. |
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[2] For the foregoing reasons, the learned Citizenship Judge cited four authorities from this Court of which I will refer to two. The first is Re. Mitha1 where Mr. Justice Cattanach wrote:
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It seems to me that in determining whether physical absences from Canada are for such temporary purposes as will not break the continuity of residence, there must first be a "residence" established and that is a matter of degree with respect to how the person "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" but residence should be distinguished as in ordinary speech "from the field of stay or visit". |
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The second quotation is from Re. Hui2 (to the same effect see Re. Pourghasemi [1993] F.C.J. No. 232) where Mr. Justice Muldoon wrote:
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Parliament intends to confer citizenship not on de facto foreigners, but on persons who have been "in residence" in Canada, not absent, for three years during the previous four. It intends to confer citizenship or applicants who have "Canadianized" themselves by residing among Canadians in Canada. This cannot be accomplished abroad. Nor can it be accomplished by depositing bank accounts, rental payment, furniture, clothing goods, and more importantly, spouses and children - in a word, all except oneself - in Canada, while remaining personally outside Canada. Parliament prescribes three out of the preceding four years for qualifying for citizenship. Parliament does not speak of depositing anything, nor of a pied-a-terre where one's furniture can become "Canadianized", nor yet of intentions, some day, to become a Canadian, nor of the acquisition of provincial driver's licenses. |
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[3] The facts of this matter may be summarized as follows. The applicant was born in Canton, China on the 31st of July, 1952. At the age of six, he moved to Hong Kong where he obtained permanent resident status. From 1979, he worked for Associated Merchandise Corporation (A.M.C.), a corporation engaged in merchandise-sourcing and product development on a worldwide basis. By 1993, the appellant had become Merchandise Director of A.M.C.in Hong Kong. Among A.M.C.'s clients for which he was responsible was Eaton's. A.M.C. determined to open an office in Canada to better service Eaton's and to research merchandise sources in Canada. The appellant was assigned the responsibility to open the Canadian office.
[4] There may have been some link in the choice of the appellant to come to Canada since, by 1991, he testified that he was "not comfortable" with his future in Hong Kong.
[5] In November of 1991, the appellant arrived in the Toronto area, on a work permit, with his wife and son. Initially, he stayed with a friend but, by December of 1991, he bought a home which, since that time, has been occupied by one or more of he, his wife and his son. The appellant settled his son in school. He obtained normal indicia of residence such as a social insurance number, a medical insurance card and a driver's license. He opened bank accounts. He sold his flat in Hong Kong and brought all of the family belongings to Canada. He has filed income tax returns in Canada since his arrival.
[6] In the course of his employment from the time of his arrival in Canada, the appellant visited manufacturers, mixed with staff of Eaton's with whom he had dealings, both on a professional and social basis, interested himself in Canadian affairs, made charitable contributions and also mixed with his wife's two brothers and their children who lived in Canada.
[7] Within a year after arriving to Canada from Hong Kong, the appellant applied for landed immigrant status for himself, his wife and his son.
[8] Apparently, A.M.C.'s Canadian office proved not to be viable. Sometime in the spring of 1993, the appellant was advised that he had a choice between staying in Canada and seeking other employment or moving elsewhere with A.M.C.
[9] On May 9th, 1993 the appellant and his family received landed status in Canada. By agreeing to accept landed status in Canada the appellant testified, he lost his permanent resident status in Hong Kong thus leaving himself, to the best of his knowledge, stateless.
[10] The appellant unsuccessfully sought other employment opportunities in Canada. A senior position with A.M.C. became available in Singapore and was offered to the appellant. He accepted the Singapore position which he regarded as "temporary". He left to assume the Singapore position on the 30th of June, 1993.
[11] Prior to leaving for Singapore, the appellant's absences from Canada had been relatively few in number and of short duration. Since leaving for Singapore, quite the opposite has been the case. The periods of time he has spent in Canada have been of short duration and in the nature of holiday periods. His wife has apparently spent the greater part of her time with the appellant in Singapore. By contrast, the appellant's son has remained in Canada, has continued his education, has lived in the family home, usually alone, and has applied for and obtained Canadian citizenship. Virtually all of the family's effects have been in Canada. The appellant occupies a furnished, rented apartment in Singapore and relies on a rented or leased automobile. In his testimony, the appellant expressed the hope, or perhaps he might describe it as the conviction, that A.M.C. might someday reopen a Canadian office that he could return to and, whether or not that hope or conviction is ever realized, a firm commitment to return to Canada, "his home", in the future.
[12] Against the foregoing outline of the facts, the issue for determination is whether or not the appellant: first, actually established a centralized mode of living in Canada; second, has demonstrated since his departure from Canada for Singapore, an intention to maintain his centralized mode of living in Canada; and third, has in fact maintained a centralized a mode of living in Canada.
[13] I have no difficulty in reaching the conclusion that the appellant, in the year and a half that he was employed in Canada, centralized his mode of living in Canada. He not only established all of the normal indicia of a centralized mode of living here, for he and his family, at the cost of his tenuous status in Hong Kong and at the risk that he would thereby become stateless, even though he was aware when he accepted landing that his employment situation was, at best, insecure. In short, he made a full and complete commitment to Canada.
[14] In the face of his move to Singapore, with his wife accompanying him for the greater part of the time, he struggled to maintain his centralized mode of living in Canada, demonstrating an intent, indeed a resolve, to maintain his connection here.
[15] In Re. Aviles3, Mr. Justice Rothstein wrote:
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I think it is in Canada's best interest that immigrants such as the Garcias are prepared to assume the risk of going back to less stable parts of the world than Canada in the course of employment with a Canadian employer, as opposed to simply remaining in Canada either on social assistance or at a relatively low level of employment, simply to qualify for the residency requirement in para. 5(1)(c) of the Citizenship Act. It seems to me it would be somewhat perverse to penalize the applicants in this case because of Mr. Garcia's employment requirement with his Canadian employer. |
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Here, of course, the appellant's employer is not a Canadian employer. Nor can it be said that employment in Singapore is in an unstable environment. Nonetheless, I am satisfied that the principle enunciated by Mr. Justice Rothstein can reasonably be applied on the facts before me. The appellant was faced with a very difficult decision. He had the option of staying in Canada, as a landed immigrant, at the risk of unemployment or low level employment. The alternative was to accept from his employer of long standing a significant and challenging responsibility in Singapore on relatively attractive terms that would enable him to maintain himself and his family in reasonable circumstances. I agree with Mr. Justice Rothstein that it would be "somewhat perverse" to interpret the citizenship law of Canada in a manner that would effectively foreclose the option that the appellant here chose by interpreting that choice as demonstrating abandonment of intention to maintain his centralized mode of living in Canada.
[16] I turn then to the question of whether or not the appellant, in fact, has maintain his centralized mode of living in Canada since his transfer to Singapore.
[17] In Re Chang [1997] F.C.J. No. 1507, I quoted with approval the following words of Mr. Justice Dubé in Lui-Tsun James Yun4:
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As I had the occasion in the Siu Chung Hung citizenship case, which is quite similar to this one, "the place of residence of a person is not where that person works but where he or she returns to after work". Where an applicant for citizenship has clearly and definitively established a home in Canada with the transparent intention of maintaining permanent roots in this country, he ought not to be deprived of citizenship merely because he has to earn his livelihood and that of his family by doing business offshore. Some Canadian residents may work from their own home, others return home after work every day, others every week, and others after longer periods abroad. The most eloquent indicia of residency is the establishment of a person and his family, coupled with a manifest intention of making that establishment that permanent home. |
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[18] Against the foregoing, I conclude that the appellant has in fact maintained his centralized mode of living in Canada.
[19] In summary then, I conclude that the appellant established himself and his family here in Canada, demonstrates a manifest intention of making his home here his permanent home, and, although the appellant's returns to that home are infrequent and of relatively short duration, that he has in fact maintained his Toronto region home as his home and that his centralized mode of living here in Canada has thus been maintained.
[20] For the foregoing reasons, this appeal will be allowed and I will recommend that citizenship be granted to the appellant.
"Frederick E. Gibson"
Judge
Toronto, Ontario
January 22, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: T-241-97
| STYLE OF CAUSE: IN THE MATTER OF the Citizenship Act, |
| AND IN THE MATTER OF an appeal from the decision of a Citizenship Judge |
DATE OF HEARING: JANUARY 19, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: GIBSON, J.
DATED: JANUARY 22, 1998
APPEARANCES: Mr. Benjamin J. Trister
For the Appellant
Mr. Peter K. Large
Amicus Curiae
SOLICITORS OF RECORD: GREENBERG TRISTER TURNER
Barristers & Solicitors
401 Bay Street, Suite 3000
Toronto, Ontario
M5H 2Y4
For the Appellant
Peter K. Large
Barrister and Solicitor
610-372 Bay Street
Toronto, Ontario
M5H 2W9
Amicus Curiae
FEDERAL COURT OF CANADA
Date: 19980122
Docket: T-241-97
BETWEEN:
IN THE MATTER OF the Citizenship Act,
| AND IN THE MATTER OF an appeal from the decision of a Citizenship Judge |
Appellant
REASONS FOR JUDGMENT
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1 [1979] F.C.J. No. 501
2 (1994) 75 F.T.R. 81
3 (1994), 26 Imm. L.R. (2d) 283 (F.C.T.D.)
4 T-2066-96, (10 October 1997) (unreported)
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