Date:
20050217
Docket:
T-756-04
Citation:
2005 FC 240
BETWEEN:
CHIN
WU
Applicant
-
and -
THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS
FOR ORDER
PINARD J.:
[1] This is an appeal under subsection 14(5) of the Citizenship
Act, R.S.C. 1985, c. C-29 (the “Act”) and section 21 of the Federal
Courts Act, R.S.C. 1985, c. F-7 from the decision of Citizenship Judge
Sandra Wilking, dated February 16, 2004, wherein she denied Chin Wu’s
application for citizenship under paragraph 5(1)(c) of the Act.
[2] Chin Wu (the applicant) is a 51 year old citizen of Taiwan
who was granted permanent residence in Canada on January 23, 1998. She applied
for Canadian citizenship on February 7, 2003.
[3] In the four years prior to her application, the applicant
was absent from Canada for 739 days and had been physically present in
Canada for 721 days. This is 374 days short of the 1,095-day requirement under
the Act. The applicant states that these absences were to visit friends and
family, to vacation, and to care for her mother and father-in-law.
[4] The residency requirements of paragraph 5(1)(c) of
the Act are the following:
|
5. (1)
The Minister shall grant citizenship to any person who
[ . . . ]
(c) has been lawfully admitted to
Canada for permanent residence, has not ceased since such admission to be a
permanent resident pursuant to section 24 of the Immigration and Refugee
Protection Act, and has, within the four years immediately preceding the
date of his application, accumulated at least three years of residence in
Canada calculated in the following manner:
(i) for every day during which the person
was resident in Canada before his lawful admission to Canada for permanent
residence the person shall be deemed to have accumulated one-half of a day of
residence, and
(ii) for every day during which the
person was resident in Canada after his lawful admission to Canada for
permanent residence the person shall be deemed to have accumulated one day of
residence;
|
5. (1)
Le ministre attribue la citoyenneté à toute personne qui, à la fois :
[ . . . ]
c) a été légalement admise au
Canada à titre de résident permanent, n'a pas depuis perdu ce titre en
application de l'article 24 de la Loi sur l'immigration et la protection
des réfugiés, et a, dans les quatre ans qui ont précédé la date de sa
demande, résidé au Canada pendant au moins trois ans en tout, la durée de sa
résidence étant calculée de la manière suivante:
(i) un demi-jour pour chaque jour de
résidence au Canada avant son admission à titre de résident permanent,
(ii) un jour pour chaque jour de
résidence au Canada après son admission à titre de résident permanent;
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[5] Mr. Justice Muldoon in Re Pourghasemi (1993), 19
Imm.L.R. (2d) 259 at 260 sets out the underlying objectives of this provision
of the Act:
. . . to insure that everyone who is granted precious
Canadian citizenship has become, or at least has been compulsorily presented
with the everyday opportunity to become, "Canadianized". This happens
by "rubbing elbows" with Canadians in shopping malls, corner stores,
libraries, concert halls, auto repair shops, pubs, cabarets, elevators,
churches, synagogues, mosques and temples - in a word wherever one can meet and
converse with Canadians - during the prescribed three years. One can observe
Canadian society for all its virtues, decadence, values, dangers and freedoms,
just as it is. That is little enough time in which to become Canadianized. If a
citizenship candidate misses that qualifying experience, then Canadian
citizenship can be conferred, in effect, on a person who is still a foreigner
in experience, social adaptation, and often in thought and outlook. If the
criterion be applied to some citizenship candidates, it ought to apply to all.
So, indeed, it was applied by Madam Justice Reed in Re Koo, T-20-92, on
December 3, 1992 [reported (1992), 59 F.T.R. 27, 19 Imm.L.R. (2d) 1], in
different factual circumstances, of course.
(See also the
following decisions rendered by the Trial Division of the Federal Court of
Canada: Re Chow (1997), 40 Imm.L.R. (2d) 308 at 310; M.C.I. v. Li-Te
Ho (April 28, 1999), T-1846-98; M.C.I. v. Ka Po Gabriel Liu (January
8, 1999), T-997-98; Re Chang (February 5, 1998), T‑1183‑97; Re
Koo, [1993] 1 F.C. 286; M.C.I. v. Ching Pin Lin (January 6, 1999),
T-2803-97; M.C.I. v. Ho (November 24, 1998), T-19-98; M.C.I. v.
Lok (March 29, 1999), T‑1179-98; Hong Sang Tang v. M.C.I. (June
14, 1999), T‑1663-98; M.C.I. v. Fai Sophia Lam (April 28, 1999), T‑1524-98
and M.C.I. v. Tara Gupta (April 28, 1999), T-757-98.)
[6] In Re Koo, supra, referred to by
Muldoon J. in Re Pourghasemi, supra, Madam Justice
Reed, at pages 293 and 294, suggests questions that can be asked which assist
in determining whether it can be said that Canada is the place where an
applicant for citizenship regularly, normally or customarily lives:
The conclusion I draw from the jurisprudence
is that the test is whether it can be said that Canada is the place where the
applicant “regularly, normally or customarily lives”. Another formulation of
the same test is whether Canada is the country in which he or she has
centralized his or her mode of existence. Questions that can be asked which
assist in such a determination are:
(1) was the individual physically present in Canada for
a long period prior to recent absences which occurred immediately before the
application for citizenship?
(2) where are the applicant’s immediate family and
dependants (and extended family) resident?
(3) does the pattern of physical presence in Canada
indicate a returning home or merely visiting the country?
(4) what is the extent of the physical absences ‑ if
an applicant is only a few days short of the 1,095-day total it is easier to
find deemed residence than if those absences are extensive?
(5) is the physical absence caused by a clearly
temporary situation such as employment as a missionary abroad, following a
course of study abroad as a student, accepting temporary employment
abroad, accompanying a spouse who has accepted temporary employment abroad?
(6) what is the quality of the connection with Canada:
is it more substantial than that which exists with any other country?
[7] I also agree that a proper interpretation of paragraph 5(1)(c)
of the Act does not require physical presence in Canada for the entire 1,095
days of residence prescribed therein when there are special and exceptional
circumstances. I consider, however, that actual presence in Canada remains the
most relevant and crucial factor to be taken into account for establishing
whether or not a person was “resident” in Canada within the meaning of the
provision. As I have stated on many occasions, too long of an absence from
Canada, albeit a temporary one, during that minimum period of time is contrary
to the spirit of the Act, which already allows a person who has been lawfully
admitted to Canada for permanent residence not to reside in Canada during one
of the four years immediately preceding the date of that person's application
for citizenship.
[8] In the case at bar, the Citizenship Judge stated, in her
decision:
Your (sic) were absent from Canada for 739 days
during the relevant period. You were physically present for 721 days. You are
374 days short of the minimum number of days required. This pattern of physical
presence in Canada would suggest that you have been dividing your time equally
between Canada and Taiwan, your country of origin. It would suggest that at
this time you have not clearly established that Canada is the place where you
“regularly, normally or customarily lives.”
I have noted the efforts you have made to become part
of Canada. This is to be commended. However at this time, I do not consider
that these connections are more substantial than your country of origin. This
is because your absences have been extensive.
[9] Upon being satisfied that the impugned decision is based on
serious elements of proof which were reasonably assessed by the Citizenship
Judge, I cannot find that her conclusion that the applicant did not meet the
residency requirements of the Act is the result of an erroneous application of
paragraph 5(1)(c) of the Act.
[10] Consequently, the appeal is dismissed.
JUDGE
OTTAWA, ONTARIO
February 17, 2005
FEDERAL
COURT
NAMES OF
COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-756-04
STYLE OF CAUSE: CHIN WU v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Vancouver,
British Columbia
DATE OF HEARING: January 18, 2005
REASONS FOR ORDER: The Honourable Mr.
Justice Pinard
DATED: February
17, 2005
APPEARANCES:
Andrew Z. Wlodyka FOR THE
APPLICANT
Keith Reimer FOR
THE RESPONDENT
SOLICITORS OF RECORD:
Lowe and Company FOR THE
APPLICANT
Vancouver, British Columbia
John H. Sims, Q.C. FOR THE
RESPONDENT
Deputy Attorney General of Canada
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