Federal Court Decisions

     T-2124-95

     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

     Syh Chiang Lin

     Appellant

     REASONS FOR JUDGMENT

ROULEAU J.

     This is an appeal from the decision of a Citizenship judge who denied this appellant Canadian citizenship on August 14, 1995. It was determined that Mr. Lin did not meet the residency requirement under paragraph 5(1)(c) of the Act which requires that an applicant for Canadian citizenship must have accumulated at least three years of residency in Canada within the four years immediately preceding his or her application. The Citizenship judge found that the appellant had only been physically present in Canada 520 days of the 1,384 days since his landing, leaving him 575 days short of the required 1,095 days.

     It was determined that the appellant did not maintain sufficient ties with Canada during his absences to have them count as periods of residence under the Act and detected no grounds under which to recommend an exercise of Ministerial discretion. In making her decision, the Citizenship judge considered the fact that the appellant maintained his business in Taiwan; that 15 days after his arrival in Canada he returned to Taiwan for family matters and subsequently regularly returned to his homeland for family or business reasons.

     Since appeals to the Federal Court under subsection 14(5) of the Citizenship Act are trials de novo, I am permitted to consider all of the evidence before me including the appellant's testimony and that of any other witness.

     The appellant appeared before me at Toronto on January 9, 1997. Counsel for the appellant submits that the Citizenship judge erred in law in requiring physical presence in Canada in light of the Re Papadogiorgakis [1978] 2 F.C. 208, and the line of cases following that reasoning.

     The appellant is a 49 year old male born in Miaoli, Taiwan on November 12, 1947. He arrived in Canada with his wife and two sons at Vancouver on August 10, 1990 and was granted permanent resident status on the same day. He entered Canada under the entrepreneur category. He invested in an office equipment business which had approximately 20 employees. He and his family currently reside in Vancouver, British Columbia.

     The appellant's original plan when he came to Canada was to wind up his Taiwan business operation within a few years. However, his investment in Canada proved to be unsuccessful; he lost approximately $300,000. By November of 1991, he had lost his entire investment in the office equipment sales and repairs company. In less than one year the company experienced financial difficulties and the appellant had to invest a further sum of money to extend its operation; he even pledged his own home for his company's operations.

     Fortunately, Mr. and Mrs. Lin had maintained an interest in their Taiwan company and this helped cover their losses and maintain their home in Vancouver. The appellant imports from a Mainland China factory a very popular porcelain doll that has become a collectors' treasure around the world. Over 300,000 dolls were sold in North America in 1994. Many Canadian agents responsible for the distribution of the dolls derive a profit from Mr. Lin's enterprise.

     With respect to his trips abroad, the appellant explained that shortly before coming to Canada, his mother passed away and he had to return to Taiwan in order to assist his elderly father finalize his mother's affairs and spend some time with him to provide support after his loss. He submits that his trips, although frequent, were kept as short as possible. He travelled to Taiwan for business purposes and to look after his father. He indicated that after losing his investment he felt the only logical solution for him was to sustain his business in Taiwan until he recovers financially.

     As indicated at the end of the hearing, I am satisfied that this appellant's absences from Canada were of a temporary nature and that he has centralized his mode of living in Canada.

     The appeal is granted.

JUDGE

OTTAWA, Ontario

March 11, 1997