Chang (Re), docket T-2808-97

Date: 19990125

Docket: T-2808-97

BETWEEN:

     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

     Hsing-I Chang

     Appellant

     REASONS FOR JUDGMENT

ROULEAU, J.

[1]      This is an appeal from the decision of the Citizenship Judge dated October 31, 1997 denying the appellant Canadian citizenship. It was determined that Ms. Chang did not meet the residency requirement under paragraph 5(1)c) of the Citizenship Act, R.S.C. 1985, c. C-29, 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 been absent from Canada 675 days, leaving her 310 days short of the required 1095 days to meet the residency requirement. As well, the Citizenship Judge was not convinced that the appellant maintained sufficient ties with Canada during these absences to count as periods of residence under the Citizenship Act.

[2]      Ms. Chang filed an appeal on December 30, 1997. Appeals to the Federal Court under subsection 14(5) of the Citizenship Act which were filed before the coming into force of the Federal Court Rules, 1998 on April 25, 1998 are trials de novo. (Canada (MCI) v. Chan (1998), F.C.J. No. 742, per Rothstein J.).

[3]      Ms. Change was born in Taiwan, in the Republic of China. She came to Canada on June 21, 1990, with her parents and two brothers, and became a student at Concordia University. She then studied at the Académie Internationale of design in Montréal. On June 9, 1992, she became a permanent resident.

[4]      Her father incorporated the company Cardan Chang International Creations Ltd., which operates a trading business since 1992. Ms. Chang is one of the directors of the corporation and owns 16 per cent of the shares. She worked as a sales manager and representative for the Asian market on behalf of the company. In the course of her employment, she travelled to various Asian countries, including Taiwan, Hong Kong, Malaysia and Singapore. She also attended worldwide textiles exhibitions in Germany.

[5]      Ms. Chang owns a home in Canada, has Canadian bank accounts and has paid income taxes. On October 4, 1997, she married a Canadian citizen, to whom she had been engaged since 1992. She applied for Canadian citizenship on February 24, 1997.

[6]      I first find that an error was committed in the calculation of the appellant"s absences from Canada. The Citizenship Judge used the numbers provided by Ms. Chang, which indicated a total of 675 days of absences from Canada. Ms. Chang erroneously included all her absences from Canada since she entered the country in 1990, rather than only those absences which occurred during the four years preceding the application date. Since Ms. Chang applied for citizenship on February 24, 1997, the relevant period stretches from February 24, 1993 to February 24, 1997.

[7]      Taking into account the absences during this period, it appears that Ms. Chang was only out of Canada for 456 days. When this amount is subtracted from 1461 (the number of days in four years), the total is 1005. Thus, Ms. Chang was present in Canada during the requisite period for a total of 1005 days, approximately 90 days short of the required 1095.

[8]      In Re Papadogiorgakis (1978), 2 F.C. 208., Thurlow C.J. established the principle that full-time physical presence in Canada is not an essential residential requirement. A person with an established home of his own in Canada does not cease to be resident when he leaves for temporary purposes, whether on business, or vacation, or to pursue a course of study. In the case of Re Koo (1993), 1 F.C. 286 at 293 (F.C.T.D.), Madame Justice Reed surveyed the jurisprudence concerning residence and summarized the different formulations for determining whether an appellant was resident in Canada, despite a physical absence:

[9]      In my view, the appellant appears to be fully integrated into Canadian society. She has lived in Canada for over eight years, and is only approximately 90 days short of the requisite residency period. Her absences from Canada were mostly for the purpose of promoting her family"s Canadian company and were not spent exclusively in her country of origin. Ms. Chang has acquired the standard indicia of residency. In my opinion, Ms. Chang has settled in Canada and has made a permanent home in this country with her husband.

[10]      The appeal is allowed.

                                     JUDGE

OTTAWA, Ontario

January 25, 1999