Federal Court Decisions

     T-1450-96

     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

     Josephine Yuen-Yee Leung,

     Appellant

     REASONS FOR JUDGMENT

ROULEAU J.

     This is an appeal from the decision of a Citizenship judge who denied this appellant Canadian citizenship on May 6, 1996. It was determined that Ms. Leung 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 258 days since her landing, leaving her 837 days short of the required 1,095 days.

     It was determined that the appellant did not maintain sufficient ties with Canada during her absences to have them count as periods of residence under the Act and the Citizenship judge detected no grounds under which to recommend an exercise of Ministerial discretion. In making her decision, the Citizenship judge considered the absences of the appellant and found them to be not short and temporary in nature as well as purely voluntary.

     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.

     In her Notice of Appeal the appellant submits as follows:

1. The Learned Judge erred in concluding that I did not show, in mind and in fact, a centralization of my mode of living in Canada.

2. The Learned Judge erred in concluding that I did not show, materially or non-materially, my contribution to the maintenance of a Canadian domicile.

3. Such further and other grounds as Counsel may advise and this Honourable Court may permit.

4. The decision violates s. 14(1) of the Citizenship Act in that the Learned Judge exceeded the 60-day statutory limit as the refusal letter was postmarked May 22, 1996.

     The appellant is a 34 year old woman born in Hong Kong on June 26, 1962. She arrived in Canada as a visitor at Vancouver on May 18, 1991 and was granted permanent resident status in Scarborough, Ontario, on July 29, 1992. On May 27, 1991, the appellant married in Toronto and her spouse sponsored her so she could remain in this country.

     She and her husband reside in Scarborough in an apartment owned by her in-laws. In December, 1991, the appellant commenced working for City Telecom Inc., a business corporation established in Canada. During the course of this employment, she was posted to Hong Kong between April 8, 1993 and January 30, 1995 (663 days). Ms. Leung submits that she was granted a Returning Resident's permit and that while outside Canada she remained on the Canadian payroll and was still covered under the Ontario Health Insurance. The appellant further submits that she always maintained residential and social ties with Canada and made donations to Canadian charities while abroad.

     There is evidence on file from the employer, City Telecom Inc., that Ms. Leung's presence was required in Hong Kong to launch a new project and provide training and management courses for a new staff. The employer confirms that she is to eventually return to their Toronto main office as customer service supervisor.

     This appellant appeared before me at Toronto on May 7, 1997. At the opening, counsel for the appellant pointed out to me an error in calculation of the days that this individual was in Canada and the amicus curiae agreed. In a memorandum dated February 2, 1995, the Citizenship judge indicated that she should be given a credit of 218 days, her non-immigrant credit which she failed to take into account and therefore her total credit should read 473 days in Canada and short 622 days.

     This individual, after arriving in Canada in May of 1991, was married within a month and immediately attended school to improve her English. This continued until December 9, 1991, when she was hired by City Telecom Inc., a worldwide international telecommunications company. She remained in the Toronto office from December of 1991 until April of 1993, except for a period of four months in 1992 during which she was in Vancouver, setting up the Vancouver office. She was then transferred to the Hong Kong area to set up a new office and to train personnel where she remains today. She indicated to me that during all of the time she was away, her pay was issued out of Toronto and UIC and CPP and income tax were all deducted at the source. She was able to leave the country and obtain a Returning Resident Permit and she even indicated that if she could not have obtained this document she would not have gone to Hong Kong. The letter which was filed before the Citizenship judge confirms that she is working for a Canadian corporation, that she is to return and she swore before me that the transfer is expected in early 1998. Her ties are in Canada and her husband's interests remain in the Toronto area. I see no reason why this individual cannot be considered to have remained a resident of this country since she was abroad temporarily working for a Canadian corporation and certainly intended to return.

     The appeal was allowed from the Bench.

JUDGE

OTTAWA, Ontario

May 28, 1997