Date: 19990907
Docket: T-1330-98
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
CHENG-CHIH CHANG
Respondent
REASONS FOR ORDER AND ORDER
EVANS J.
[1] This is an application by the Minister of Citizenship and Immigration appealing a decision by a Citizenship Judge dated April 29, 1998 approving an application for Canadian citizenship by Cheng-Chih Chang.
[2] The Minister appealed on the ground that the Judge had erred in law in concluding that Mr. Chang had satisfied the residency requirement for citizenship prescribed by paragraph 5(1)(c) of the Citizenship Act R.S.C. 1985, c. C-29.
[3] Mr. Chang had filed no material in response to the application; he did not appear at the hearing, either in person or through counsel. I was satisfied on the basis of the affidavits of service that Mr. Chang had been duly served with notice of this proceeding and of the date and time of the hearing in accordance with the Federal Court Rules, 1998. Accordingly, there was no reason for not proceeding in his absence.
[4] Mr. Chang was granted permanent residence status in Canada on June 25, 1994 when he arrived from Taiwan with his wife and children. He applied for Canadian citizenship on July 30, 1997, a month more than the minimum period of residence under the Citizenship Act.
[5] The Citizenship Judge noted that Mr. Chang had been present in Canada for only 141 days, and was 954 days short of the 1095 days that an applicant for citizenship is required to have resided in Canada in the four years immediately prior to his application for citizenship. However, the Judge held that, although Mr. Chang had been in Canada for approximately a mere 12% of the prescribed residency period, he had nonetheless established and maintained his residence in Canada for citizenship purposes.
[6] In reaching the conclusion that Mr. Chang had centralized his mode of living in Canada, the Citizenship Judge relied on the following facts: the presence in Canada of the claimant"s wife and children during the relevant period; the liquidation and transfer of the family"s assets to Canada; the claimant"s work with a multi-national corporation in Taiwan; and the fact that his frequent and prolonged trips to Taiwan were in part to assist his elderly parents.
[7] In my opinion this conclusion was not open to the Citizenship Judge on the basis of the evidence before him and the relevant jurisprudence. The questions formulated by Reed J. in Re Koo, [1993] 1 F.C. 286, 293-294 (F.C.T.D.) provide valuable guidance in determining whether applicants for citizenship have "centralized their mode of living" in Canada, and thus established and maintained their residence in Canada for the prescribed period, despite temporary physical absences during this time.
[8] Was Mr. Chang present in Canada for a substantial period before his temporary absences? He left for Taiwan less than one month after being landed. On his return three months later he remained in Canada for two months, before leaving again for Taiwan for nearly two months. Then in early May 1995 he left again for Taiwan, where he stayed for another four months. He was thus in Canada for a very short time before starting his pattern of absences.
[9] Mr. Chang"s immediate family has been in Canada for nearly the whole time since they acquired permanent resident status. While this is an indicator that Mr. Chang established and maintained his residence in Canada during his absences, a person cannot fulfil the residency requirement vicariously.
[10] The fact that his wife and children were in Canada suggests that he was returning home when he came back from Taiwan. On the other hand, his pattern of absences, short visits to Canada interspersed among longer periods in Taiwan, has changed very little during the period and does not indicate a person whose home is here.
[11] The periods of his absences were extensive. It is not clear that his absences for business purposes, which accounted for most of the time he spent in Taiwan, were temporary in nature. However, the other reasons that he gave for being absent from Canada, the illness of his father and the winding-up of his personal affairs, were.
[12] There was no evidence before the Citizenship Judge about the quality of Mr. Chang"s connection with Canada. He continued to have business and family connections in Taiwan, where he spent approximately 88% of the relevant time immediately prior to his application for Canadian citizenship.
[13] In my opinion the Citizenship Judge"s conclusion that Mr. Chang had "centralized his mode of living in Canada" was unreasonable and thus erroneous in law.
[14] For these reasons the application is allowed.
OTTAWA, ONTARIO "John M. Evans"
September 7, 1999. J.F.C.C.