Federal Court Decisions

T-1605-96

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

HARRISON LIN

Appellant.

REASONS FOR JUDGMENT

(Reasons delivered orally from the Bench

on May 28, 1997, in Vancouver, B.C.)

WETSTON J.:

     This is an appeal by Harrison Lin from a decision of the Citizenship Judge dated May 13, 1996, wherein the judge did not approve the appellant's application for citizenship.

     The pertinent facts are as follows. The appellant entered Canada with his wife and his three children on July 13, 1992, as a landed immigrant. He had an export-import business in Taiwan and received his visa in April of 1992. As a result of difficulties associated with winding down his business in such a short time, he was required to return to that country on several occasions. In May of 1992, when the applicant arrived in Canada, he purchased a home in Delta, B.C., and he moved there with his family and remains there to this day.

     The appellant left Canada for 57 days on August 13, 1992. The basis for leaving at that time was because he had to wind down his business in Taiwan. By the date of his application for citizenship on December 19, 1995, it appears that the appellant had been absent from Canada approximately 817 days. By calculation of the Citizenship Judge the appellant was short some 658 days as required by the statute, which would be somewhere in the order of 1,095 days.

     While the hearing before me is a trial de novo or a de novo review, it would appear that the Citizenship Judge set out in her reasons that the only issue in this case was whether the appellant satisfied the residency requirement set forth in paragraph 5(1)(c) of the Citizenship Act. Nowhere in the decision of the Citizenship Judge was there any comment as to the reasons for Mr. Lin's absences from Canada during the relevant period. At no time did the Citizenship Judge reflect on the need for Mr. Lin to wind down his business in an orderly fashion, nor was there any comment on the requirements that Mr. Lin had with respect to the illnesses of his sister-in-law, father-in-law, and his father.

     The issue before the Court is whether, on the facts of this case, the appellant has satisfied the residency requirement under paragraph 5(1)(c) of the Citizenship Act. Various judges of this court have referred to the meaning of the words "resident" or "residence" in Canada in a manner which reflects a number of different residency concepts. On balance, these cases lead to the same question, which is whether an applicant has centralized his mode of living in Canada. Another way of stating it would be whether the appellant regularly, normally or customarily lives in this country. Indeed, the Citizenship Judge, in her decision, referred to language such as whether or not an individual shows in mind and in fact a centralization of his or mode of living in Canada.

     I was assisted in this regard by jurisprudence filed with the Court by Ms. Fisher, who referred me in particular to a decision of Cullen J. of this Court, entitled Ping Huang, [1996] F.C.J. 1332 (Q.L.). This case was referred to the Court as a basis for assessing whether the requirements of the law had been met by reference to six factors enumerated or outlined in a decision of Reed J. in Re Koo, [1993] 1 F.C. 286. These six factors are now well known to the Court, and I have considered the facts of this case in relation to those factors contained in that decision.

     It is contended that the absences of Mr. Lin were temporary and necessary and, therefore, those absences should not be considered in a manner which would preclude Mr. Lin from satisfying the residency requirements under the Citizenship Act. One of his absences was due to the illness of his sister-in-law, who fell ill and died in June 1995. The other absence was due to the illness of his father. It was necessary for Mr. Lin to return to Taiwan to look after the needs of his father before his death. In February 1996, Mr. Lin's father died, but was not buried immediately, requiring Mr. Lin to also remain in Taiwan during that period. It is apparent from the facts that Mr. Lin was also in Taiwan to assist his father-in-law, who passed away in February of 1993.

     I have taken note of the facts with respect to whether Mr. Lin has, in mind and in fact, centralized his mode of living while in Canada, or, in other words, whether Canada is indeed the country in which Mr. Lin regularly, normally and customarily resides. I also note that, in this case, the Citizenship Judge did not make any comments with respect to the exercise of a discretion under subsections 5(4) and 15(1) of the Citizenship Act to recommend to the Governor in Council that the appellant be granted citizenship despite not being able to satisfy the residency requirements. I will make no comment on those sections, although I recognize that there is case law that differs as to the powers within the Federal Court to make such a recommendation.

     In considering the law, and having heard the evidence in this matter, I am satisfied that the appellant has indeed established Canada as his place of permanent residence, and I would allow the appeal.

                             Wetston J.

                    

                             J.F.C.C.

Ottawa, Ontario

June 3, 1997