Date: 20010614
Docket: T-1205-00
Neutral Citation: 2001 FCT 640
Between:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Appellant
- and -
MICHAEL TSAO JEN LU
Respondent
REASONS FOR JUDGMENT
PINARD, J.:
[1] This is an appeal by the Minister of Citizenship and Immigration (the appellant) of the decision rendered by Citizenship Judge Paul Gallagher on May 15, 2000, approving the respondent's application for Canadian citizenship. The appellant maintains that the Citizenship Judge erred in determining that the respondent had satisfied the residency requirements set out in paragraph 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29, as amended (the Act).
[2] The respondent is a citizen of Taiwan. He arrived in Canada, accompanied by his wife, and acquired permanent residency status on July 13, 1996. Their children joined them the following month. The respondent applied for Canadian citizenship on September 15, 1999. During the relevant period set out in paragraph 5(1)(c) of the Act, the respondent was physically present in Canada for 465 days, leaving him short 630 days from the required 1,095 days. Most of the respondent's absences from Canada were for business reasons.
[3] In approving the respondent's application for citizenship, the Citizenship Judge noted:
If we are going to admit international businesspeople to land in Canada (and we should, in my view) then we have to anticipate that their businesses will take them out of the country often.
[4] The parties agree, as it is now well established, that the standard of review to be applied in such an appeal is that of correctness, with no particular deference accorded to the Citizenship Judge's determination.
[5] 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 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;
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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 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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[6] My colleague, 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.)
[7] This Court has held 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] As a result, given the substantial absences of the respondent from Canada in the present case (he was present in Canada for only 465 days leaving him short of the required 1,095 by 630 days), I find that the Citizenship Judge's conclusion that the former met the residency requirements of the Act is totally unreasonable and that such conclusion is the result of an erroneous application of paragraph 5(1)(c) of the Act.
[9] The appeal is allowed and the decision of the Citizenship Judge, dated May 15, 2000, is quashed on the ground that at the time the respondent applied for Canadian citizenship, he did not meet the residency requirements of paragraph 5(1)(c) of the Act. The respondent's application for Canadian citizenship is consequently denied.
JUDGE
OTTAWA, ONTARIO
June 14, 2001
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