Date: 19981112
Docket: T-2497-97
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
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Appellant
- and -
YEE YEE VICTORIA LIU
Respondent
REASONS FOR JUDGMENT
ROTHSTEIN J.:
[1] In this appeal by the Minister of a decision of a Citizenship Court Judge, the respondent was out of Canada 955 out of the 1095 days in the three years prior to her citizenship application. After landing in Canada and staying approximately six weeks, she returned to Hong Kong with her two children for approximately eleven months. She returned to Canada for approximately one month and then left for Hong Kong for another eleven months. She then returned to Canada for one month and left again for Hong Kong for approximately eleven months. She then returned and made her citizenship application. She has remained in Canada since her return for approximately twenty-eight months.
[2] During the relevant period up to the date she filed her citizenship application, there is no indication that the respondent centralized her mode of living in Canada. Indeed, the fact that her children accompanied her when she returned to Hong Kong indicates that she had no close ties in Canada.
[3] There is no doubt that the respondent does not qualify for citizenship by reason of her long absences from Canada and no indication that her mode of living was centralized in Canada over that period of time.
[4] However, her argument is that from the date on which her citizenship application was made to the present time she has not been out of Canada. The question is whether the Court may take into account her physical presence in Canada after the date of her citizenship application. I do not think so. Paragraph 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29, is clear in defining the time period which is relevant for determining residency for citizenship purposes as "... the four years immediately preceding the date of his application... ".
[5] I have sympathy for the respondent, and find her to be a credible, hard-working and entrepreneurial individual. If I had the discretion to take into account the period after her citizenship application I would do so and dismiss the Minister's appeal because I see no useful purpose, in her circumstances, in requiring that she commence the application process all over again. However, I am bound by the Citizenship Act. While apparently there is a waiting period, I think the respondent's course of action must be to file a new citizenship application based upon her presence in Canada for the last twenty-eight months. Other than there being some inconvenience and delay in filing and processing of her application, I do not see that the filing of a new application in any way prejudices the respondent.
[6] The Minister's appeal must be allowed.
Marshall Rothstein
Judge
OTTAWA, ONTARIO
November 16, 1998
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