Federal Court Decisions

     T-2000-96

     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

     Pui Ching Yu,

     Appellant

     REASONS FOR JUDGMENT

ROULEAU, J.

     This is an appeal from the decision of a Citizenship judge who denied this appellant Canadian citizenship on July 16, 1996. It was determined that Ms. Yu did not meet the residency requirement under paragraph 5(1)(c) of the Act which requires that an applicant for Canadian citizenship must have accumulated at least three years of residency in Canada within the four years immediately preceding his or her application. The Citizenship judge found that the appellant had only been physically present in Canada 246 days during the application period.

     It was determined that the appellant did not maintain sufficient ties with Canada during her absences to have them count as periods of residence under the Act and the Citizenship judge detected no grounds under which to recommend an exercise of Ministerial discretion.

     In making her decision, the Citizenship judge considered the fact that the appellant spent the majority of her time in Hong Kong working in her father's watch factory and that she was to continue to do so until her brother-in-law was to take over the company in the fall of 1996.

     Since appeals to the Federal Court under subsection 14(5) of the Citizenship Act are trials de novo, I am permitted to consider all of the evidence before me including the appellant's testimony and that of any other witness.

     Ms. Yu is a 43 year old woman born in Guam Dong in the People's Republic of China on January 20, 1954. She arrived in Canada on January 1, 1992 accompanied by her husband and two children; they were granted permanent resident status on the same day. Ms. Yu and her husband purchased a home in Vancouver and the children were enrolled in local schools. The applicant established a Canadian corporation and travelled extensively to Hong Kong. This corporation was to market watches from her father's factory; it was to be the principal source of work for both her and her husband.

     This applicant appeared before me at Toronto on May 6, 1997. Her evidence revealed that though she was born in mainland China she moved with her family to Hong Kong when she was two years of age and was enrolled in school until she completed grade 11, after which she started to work in her father's watch factory. She was the eldest child and the father had no son; as a result she was trained to manage and run the enterprise. She married and, at the time, her husband was employed by the Hong Kong telephone company; he soon left that employment to join her at the factory in 1986. She and her husband decided to immigrate to Canada after a few visits prior to 1992 primarily because they were somewhat concerned with the imminent take over in 1997 by the People's Republic of China. Prior to leaving Hong Kong, she sold the home that she and her husband had occupied and moved all of their belongings to Vancouver. A brother-in law, her husband's brother, had joined the firm prior to her leaving and was to continue working in the factory and eventually it was his intention to purchase it. Shortly after arriving in Canada, she returned to Hong Kong with the intention of spending a few months to assist the father and the brother-in-law; during this visit her father died and she felt obligated to stay on in order to protect the business and her interest. At the time she lived in her father's residence. Shortly thereafter the brother-in-law decided to quit working in the watch factory and launched some other enterprise. It was not until 1996 that he returned to become actively involved in the factory and purchase the shares from this appellant and her husband. It is clear that her absences were due to circumstances over which she had no control.

     When she and her husband entered Canada, they entered as entrepreneurs and invested $ 250,000 with a trust managed by the Royal Bank of Canada; this investment qualified to provide them with landed immigrant status in the investor category. There is no doubt that the children have remained in the family home since their arrival in Canada and one son who is now age 15 remains in school in the Vancouver area. The appellant has a British Columbia driver's licence, health card and bank account and has joined a tennis club.

     I am satisfied that the plan was to come to this country and set up a marketing arm for the Hong Kong factory handling the sale of watches in Vancouver; unfortunately because of two events, the untimely death of her father as well as the brother-in-law leaving the factory, this appellant's plans were changed considerably.

     It was brought out in evidence that the day in July when she, her husband and two children appeared before the Citizenship Judges in Vancouver in order to qualify and be accepted as citizens, the husband and two children appeared before one judge and she before another. The husband having only three months more residency in Canada was granted citizenship as were the children.

     Since July of 1996, the brother-in-law is now managing the watch factory; for a period of two or three years the appellant was spending six weeks in Hong Kong and approximately two weeks in Canada in order to preserve this family investment. She has filed income tax returns in Canada since she has landed as did her husband. I must determine, though there were many absences from Canada during the four year period, did she cease to be a resident of this country? There is no doubt that she did return frequently and I am satisfied that it was her and her husband's intention to centralize their ordinary mode of living in this country. When looking at the circumstances described above, I am satisfied that in the present case the appellant has established a pied-à-terre in Canada and, despite her absences, she has not demonstrated any intention of abandoning her Canadian residency.

     The appeal is allowed.

JUDGE

OTTAWA, Ontario

May 28, 1997