Ng ( Re )
T-2689-95 / T-2690-95
Cullen J.
16/10/96
13 pp.
Appeals from denial of citizenship for failure to fulfil residence requirements-Appellants, two daughters, admitted to Canada on March 29, 1991-Owning home in Canada since arrival-During frequent trips to Hong Kong appellant husband staying at parents' flat-Trips primarily business related, although extended to provide support for ill, elderly parents-Appellant wife accompanying husband on all trips except last two, making her physically present in Canada for 214 days-Investing $250,000 in unsuccessful business in Canada-Not severing all business ties with Hong Kong, China-Appellant obtaining SIN, OHIP, driver's licence, automobiles-Establishing, maintaining bank accounts, investments in Canada-Daughters attending local schools, although spending much of time in school in Hong Kong-Incorporating Canadian company, filing Canadian income tax returns-Absent from Canada for 1,068 days during four years immediately preceding application-Physically present for only 110 days-Citing pattern of absences, citizenship judge concluding husband not centralizing mode of living in Canada; not maintaining sufficient ties with Canada during absences to have absences count as periods of residence-Appeal allowed-Review of case law respecting residency-Possible to establish "constructive residence"-Re Koo, [1993] 1 F.C. 286 (T.D.) applied-Pattern of physical presence can be equally indicative of good business decision; not necessarily working against appellant in establishing residency-Canada (Secretary of State) v. Yu (1995), 31 Imm. L.R. (2d) 248 (F.C.T.D.), wherein appeal from grant of citizenship to applicant spending only 156 days in Canada allowed, distinguished as appellant herein owning residence, business in Canada-As business concerns in Hong Kong, China of on-going nature, not satisfying test requiring absences to be caused by temporary situation-But arguable one can still maintain business interests in foreign country and concurrently maintain constructive residency in Canada, especially considering Canadian business continuing to operate in conjunction with Hong Kong business-$250,000 investment in Canada under immigrant investors programme indicating deep commitment to Canada-Appellant now having many friends in Toronto, Richmond; business contacts from product sales-Appellants meeting requirement of constructive residence.