Date: 20020911
Docket: T-1026-01
Neutral Citation: 2002 FCT 962
BETWEEN:
MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
SHU MING PANG
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL J.
[1] The Minister of Citizenship and Immigration brings this application to appeal the decision of a Citizenship Judge, dated April 18, 2001, wherein the Respondent's application for Canadian citizenship was approved.
[2] The sole issue in this review is whether the Citizenship Judge erred in determining that the Respondent satisfied the residence requirements under paragraph 5(1)(c) of the
Page: 2
Citizenship Act, R.S.C. 1985, c. C-29 (the "Act"), namely, whether he accumulated at least three years of residence in Canada within the four years immediately proceeding the date of his application for permanent residence.
[3] This Court is divided on the manner in which residence can be accumulated in order to meet the requirements of paragraph 5(1)(c). Accordingly, this Court has determined that citizenship judges are permitted to apply the test of their choosing and that the function of the judge sitting in appeal is to verify that the test has been applied properly (Canada (M.C.I.) v. Mindich (1999), 170 F.T.R. 148 at p.151).
[4] In the present case, the Citizenship Judge chose to follow the test set out in Koo (Re), [1993] 1 F.C. 286. It is the Applicant's position that this test was misapplied. I disagree. In my opinion, there is no indication in the present case that the Citizenship Judge did not properly apply the factors set out in Koo.
[5] The Citizenship Judge adopted a form in which all six factors identified in Koo were correctly and expressly set out (Citizenship Court Record, pp.9-10). I accept the Respondent's submission that while some factors mitigated against the Respondent, other factors were in his favour. The Applicant essentially takes issue with the lack of weight afforded to one of the factors mitigating against the Respondent, namely, his continued employment in Hong Kong resulting in extended absences. However, the test identified in Koo allows a citizenship judge to look beyond physical presence in Canada to other factors such as the quality of connection in Canada. In the present case, the Citizenship Judge afforded greater weight to the following factors:
(a) the Respondent's wife and children, his mother, brother, sister and their children are all residents of Canada or Canadian citizens;
(b) the Respondent had liquidated almost all of his assets in Hong Kong and invested in Canada;
(c) the Respondent's continued employment in Hong Kong was the result of the limited employment opportunities available in Canada because of his age and experience. As a result, it was reasonable for the Respondent to continue to work in Hong Kong so that he could support his family; and,
(d) in order to minimize his absences due to work, the Respondent made it a condition of his employment that he return to Canada regularly to be with his family.
[6] In my opinion, these factors are capable of supporting the Citizenship Judge's conclusion that the Respondent met the residence requirements of the Act.
O R D E R
Accordingly, the appeal is dismissed.
"Douglas R. Campbell"
Judge
Calgary, Alberta
September 11, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1026-01
STYLE OF CAUSE:Minister of Citizenship and Immigration v.
Shu Ming Pang
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: September 11, 2002
REASONS FOR ORDER AND ORDER : CAMPBELL, J.
DATED: September 11, 2002
APPEARANCES:
Mr. Rick Garvin FOR APPLICANT
Mr. Allen B. Gommeringer FOR RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg
Attorney General for Canada FOR APPLICANT
German Fong Albus Lam
Calgary, Alberta FOR RESPONDENT
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