Date: 20050113
Docket: T-1356-04
Citation: 2005 FC 26
Toronto, Ontario, January 13th, 2005
Present: THE HONOURABLE MR. JUSTICE von FINCKENSTEIN
BETWEEN:
MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
CHU LAU
Respondent
REASONS FOR ORDER AND ORDER
(Delivered orally and subsequently written for clarification and precision)
[1] This is an appeal, pursuant to subsection 14(5) of the Citizenship Act and section 21 of the Federal Courts Act of the decision of the Citizenship Judge, dated May 21, 2004, in which the Citizenship Judge approved the Respondent's application for Canadian citizenship.
[2] The Respondent first landed in Canada on April 7, 1998. He left nine days after landing subsequent to having obtained or made applications for the usual paper work associated with residence (health card, bank account, driver's license, etc.). He was absent 33 times during the four years preceding his application for citizenship on February 7, 2003, for a total of 773 days. During these four years the Respondent spent only 687 days in Canada. His wife and children were approved for citizenship in November of 2002.
[3] The Citizenship Judge based her decision on the following:
"Although extensive travel during 4 year period of application, the applicant spent days in Canada every month between business trips. There was only one long trip of 120 days. The applicant has recently purchased a new business so that he can spent more time with his wife and immediate family. I am satisfied that the applicant has a greater connection with Canada. "
[4] There was no evidence before the Court that the Respondent during the four years in question made any efforts to integrate into or participate in Canadian society or that he had formed any attachment to Canada.
[5] In response to a direct question by this Court on this point, the Respondent had no answer nor did he point to any evidence.
[6] Yet it is quite clear from the decisions of Simpson J. in Canada (Minister of Citizenship and Immigration) v. Lam, [1999] F.C.J. No. 651 para 10, and Wetston J. in Chan v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 176, para 9 that such evidence is required before it can be established that an applicant for citizenship, notwithstanding lengthy absences from Canada, does have residence in Canada.
[7] It was not reasonable for the Citizenship Judge to conclude on the evidence before her that the Respondent had met the residency requirements of the Citizenship Act. Accordingly this appeal will succeed.
ORDER
THIS COURT ORDERS that this appeal be allowed. The decision of the Citizenship Judge dated May 21, 2004, is hereby set aside.
"K. von Finckenstein"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: T-1356-04
STYLE OF CAUSE: MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
CHU LAU
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JANUARY 12, 2005
REASONS FOR ORDER
AND ORDER BY: von FINCKENSTEIN J.
DATED: JANUARY 13, 2005
APPEARANCES BY:
Mr. Lorne McClenaghan FOR THE APPLICANT
Mr. Chu Lau FOR THE RESPONDENT (Self-Represented)
SOLICITORS OF RECORD:
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE APPLICANT
Mr. Chu Lau
Markham, Ontario FOR THE RESPONDENT (Self-Represented)
FEDERAL COURT
Date: 20050113
Docket: T-1356-04
BETWEEN:
MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
CHU LAU
Respondent
REASONS FOR ORDER AND ORDER
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