85. Whilst Ms LEUNG gave evidence that the permanent resident cards held by her husband and herself are subject to renewal, the fact remained that the Appellant’s parents had attained permanent resident status in Canada as early as in May 2005 (this is one of the important factors to be considered according to the Interpretation of the Laws of the People’s Republic of China – Encyclopaedia of Decided Cases (Editors-in-Chief being Cai Cheng and Xiao Yang)(《中華人民共和國百法釋解案例全書》主編:蔡誠、蕭揚) and the Appellant’s parents were not subject to any limit of stay when they were in Canada. They could stay in Canada as long as they wish.
86. The Appellant’s mother gave birth to her first daughter, Jane in Ontario in April 2005. It was the common intention of both the Appellant’s parents that Jane should grow up in Canada. The Appellant was subsequently born on 3rd April 2008 in Canada. After the birth of the Appellant, Ms LEUNG applied for a driving licence.
87. All long, the Appellant’s family lived in a property owned by the Appellant’s paternal grandfather. In or about 2008 or 2009 and after the Appellant was born, the Appellant’s parents and elder sister Jane obtained Canadian passports and attained the status as Canadian citizens. By the end of 2010, the Appellant’s parents had returned their permanent resident cards to the Canadian authorities.
88. During the years between 2004 and 2009, the Appellant’s parents were out of Hong Kong for most of the time. They were all along residing in Canada. The Appellant’s parents expressly admitted that during the said years, they did intend to settle in Canada for good. They did live in Canada continuously for about 5 years and it was only unfortunate that they were not able to find any job.
89. During their stay in Canada, the Appellant’s parents had obtained ‘OHIP Cards’ by which they were covered by health insurance. They also had obtained their respective social insurance cards which had no expiry dates and which were a ‘must have’ for any person who wanted to work in Canada.
90. During the said years, the couple adopted Canada voluntarily as their abode. They resided there voluntarily for settled purposes as part of their regular order of life for the time being. They were ordinarily resident in Canada in those years. As seen from R v Barnet London Borough Council ex parte Shah, supra, at 343G – 344B – D, it is not required that the couple must intend to stay in Canada indefinitely. The purpose, while settled, could be for a limited period of time only. Employment and family were the clear reasons why the couple chose Canada as their regular abode.
91. In the premises, we are not satisfied that the Appellant has discharged his burden to prove on the balance of probabilities that he has a right of abode in Hong Kong and should be given HKPR status. We are of the view that at the time of the Appellant’s birth, (1) he had acquired or had (‘具有’) foreign nationality and that (2) his parents had settled in Canada.” (emphasis added)