Date: 20031103
Docket: T-1019-02
Citation: 2003 FC 1276
Ottawa, Ontario, this 3rd day of November, 2003
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
WING CHUNG BASIL KWAN
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Wing Chung Basil Kwan was born in Hong Kong in 1973 and came to Canada when he was 21. He applied for Canadian citizenship in 2000 and a citizenship judge granted it to him two years later. The Minister of Citizenship and Immigration has appealed the citizenship judge's decision arguing that she failed to apply the proper test when she determined that Mr. Kwan had satisfied the residency requirement set out in s. 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29.
[2] I have concluded that the citizenship judge erred and, therefore, will allow this appeal.
[3] Mr. Kwan has not participated in this proceeding. He was informed of the hearing of the appeal by way of a notice delivered to his parents' home in Calgary, but he did not attend it. I ordered a transcript of the hearing to be prepared and have attached it as an Annex to this judgment.
[4] There is only one issue here: whether the citizenship judge applied the correct test for determining the residence requirement in the Citizenship Act. Paragraph 5(1)(c) of the Act says that an applicant must have resided in Canada for a total of three years over the course of the four years preceding his or her application. In this case, Mr. Kwan was present in Canada for 647 days and absent for 813 days during that four-year period. This put him 448 days short of the required three years. For much of the time, he was a student in the United States.
[5] The law allows some flexibility in applying the residence requirement, recognizing that a person who has firmly established his or her connection with Canada may still be considered a resident during periods of absence. Citizenship judges must consider a variety of factors in deciding whether a candidate has met the residence requirement. Some of the relevant factors are: the length of the person's absences, the person's family connections in Canada, the reasons for the absences, and so on: Koo (Re), [1993] 1 F.C. 286, [1992] F.C.J. No. 1107 (QL) (T.D.).
[6] Here, the citizenship judge considered some of the relevant factors. However, she did not determine when Mr. Kwan had actually established his residence in Canada. As mentioned, it is only where the person's connection with Canada is firmly established that periods of absence can be counted toward the three-year residence requirement. The record before the citizenship judge contained no evidence of any steps Mr. Kwan had taken to immerse himself in his new life in Canada. Without that evidence, it is impossible to know at what point Mr. Kwan firmly became a resident of Canada, if indeed he ever did. In turn, without knowing the starting point of his residency in Canada, it is impossible to calculate the number of days to his credit: Canada (Minister of Citizenship and Immigration) v. Nandre, 2003 FCT 650, [2003] F.C.J. No. 841 (QL) (T.D.); Canada (Minister of Citizenship and Immigration) v. Yu, 2003 FCT 651, [2003] F.C.J. No. 842 (QL) (T.D.).
[7] Accordingly, I must allow this appeal.
JUDGMENT
IT IS HEREBY ADJUDGED that:
1. The appeal is allowed.
"James W. O'Reilly"
Judge
FEDERAL COURT
NAME OF COUNSELS AND SOLICITORS OF RECORD
DOCKET: T-1019-02
STYLE OF CAUSE: The Minister of Citizenship and Immigration v.
Wing Chung Basil Kwan
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: October 16, 2003
REASONS FOR JUDGMENT
AND JUDGMENT BY: The Honourable Mr. Justice O'Reilly
DATED: November 3, 2003
APPEARANCES BY:
Mr. Brad Hardstaff FOR THE APPLICANT
Absent FOR THE RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada
FOR THE APPLICANT
Mr. Wing Chung Basil Kwan
155 Hampshire Close NW
Calgary, Alberta T3A 4Y1
FOR THE RESPONDENT
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