Federal Court Decisions

     Date: 19971222

     Docket: T-873-97

     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 Judge

     AND IN THE MATTER OF

     Ye Jen Lin,

     Appellant.

     REASONS FOR JUDGMENT

PINARD, J. :

[1]      This is an appeal pursuant to subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 (the "Act"), of the decision of Elizabeth Willcock, Citizenship judge (the "judge"), rendered and communicated to the appellant by way of a letter dated March 10, 1997. The judge found that the appellant had failed to satisfy the condition in paragraph 5(1)(c) of the Act, which requires an applicant for citizenship to have accumulated at least three years of residence in Canada within the four years immediately preceding his or her application. Paragraph 5(1)(c) of the Act reads:

5. (1) The Minister shall grant citizenship to any person who

. . .

(c) has been lawfully admitted to Canada for permanent residence, has not ceased since such admission to be a permanent resident pursuant to section 24 of the Immigration Act, and has, within the four years immediately preceding the date of his application, accumulated at least three years of residence in Canada calculated in the following manner:

(i) for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and

(ii) for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence;

[2]      The appellant was born on April 22, 1947 in Taiwan. He became a landed immigrant on March 26, 1989, along with his wife and three children. They lived with friends until January 1, 1990, at which time they moved into a house they had earlier purchased in Burnaby, British Columbia.

[3]      The appellant is a businessman specialized in imports and exports. He moved his business to Canada, and incorporated a company in February, 1990 named T.I.C. (Canada) Investments Inc. This company has been actively engaged in international trade since its incorporation, with substantial exports from Canada. The company has been paying corporate tax, and the applicant has an accountant to take care of these matters.

[4]      His business requires him to travel extensively, and he states that this is the only reason he is ever away from home. He adds that he is required to travel around the world to market his products (including those made in Canada), develop his client base, negotiate deals, and provide after-sale service. Since most of his products are sold in Asian countries, he has to be there "personally from time to time".

[5]      The appellant says that he has always intended to establish his home in Canada, and has in fact done so. Canada is the only country where he has a home. His family lives in Vancouver, where his wife takes care of company business, and his three children attend school. They have all met the residence requirement and have obtained Canadian citizenship.

[6]      He lists a number of indicia of his ties to Canada: he is a member of the Taiwanese United Church in Greater Vancouver, the Taiwanese Canadian Cultural Society, and the Greater Vancouver Taiwanese-Canadian Association. He pays income tax in Canada, has contributed to an RRSP, maintains a British Columbia driver's license, has purchased one house for a principal residence and another as an investment, pays his provincial medical insurance premium, and has a social insurance number.

[7]      The appellant applied for Canadian citizenship on January 31, 1994. In the relevant four-year period between January 31, 1990 and January 31, 1994, the appellant was physically absent from Canada for approximately 1,089 days, leaving him short by approximately 724 days of the 1,095 days needed to satisfy the residence requirements in paragraph 5(1)(c) of the Act.

[8]      As I have indicated in previous decisions (Re Chiu (March 23, 1995), T-2035-93, Re Chan (March 23, 1995), T-291-94, and Re Wong (May 2, 1996), T-1501-95), there is jurisprudence which does not require the physical presence of an applicant for citizenship in Canada for the entire 1,095 days, when there are special or exceptional circumstances. However, in my view, too long of an absence from Canada, albeit temporary, during that minimum period of time, as in the present case, is contrary to the purpose of the residency requirements of the Act. Indeed, the Act already allows a person who has been lawfully admitted to Canada for permanent residence not to reside in Canada during one of the four years immediately preceding the date of that person's application for citizenship.

[9]      I find, therefore, that the appellant does not meet the residency requirements of the Act. Consequently, the appeal will be dismissed.

                            

                                     JUDGE

OTTAWA, ONTARIO

December 22, 1997