Date: 19990106
Docket: T-2803-97
IN THE MATTER OF the Citizenship Act,
R.S.C. 1985, c. C-29
AND IN THE MATTER OF an appeal from the
decision of a Citizenship Judge
AND IN THE MATTER OF
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
and
Ching Pin Lin,
Respondent.
REASONS FOR JUDGMENT
PINARD, J. :
[1] This is an appeal, by way of a trial de novo, pursuant to subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29, (the Act) of the decision of Citizenship Judge Ann Wilson, dated November 17, 1997, wherein the Judge approved the application of the respondent for a grant of Canadian citizenship under subsection 5(1) of the Act. By her decision, the Citizenship Judge concluded that the respondent had met the residency requirement of paragraph 5(1)(c) of the Act despite the fact that the respondent had not been physically present in Canada for at least three years within the four years immediately preceding April 7, 1997, which is the date of his application for Canadian citizenship. The respondent was born on October 3, 1959 and is a citizen of Taiwan. He arrived in Canada on July 21, 1993.
[2] 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; |
(Emphasis added.)
|
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. |
(Mon emphase.)
|
[3] 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 Re Chan (1998), 144 F.T.R. 117 and M.C.I. v. Kam Biu Ho (November 24, 1998), T-19-98 (F.C.T.D.).)
[4] Assuming 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, as in the present case, 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.
[5] In the case at bar, the respondent, by his own admission, was in Canada for merely 209 days, leaving him short by 886 days of the required 1,095 days (or three years) of residency required under paragraph 5(1)(c) of the Act. The respondent stated that the reason for his absences from Canada was to care for his mother. The respondent departed for Taiwan only 16 days following his landing in Canada on July 21, 1993, and thereafter travelled abroad 15 times until the date of his citizenship application on April 7, 1997. Of his trips to Taiwan (14), his shortest was for 38 days. They averaged out to 77 days for each trip.
[6] Consequently, given the respondent's prolonged absences from Canada, the appeal is allowed, the decision of the Citizenship Judge, dated November 17, 1997, is set aside, and the respondent's application for Canadian citizenship, dated April 7, 1997, is dismissed on the ground that the residency requirements of paragraph 5(1)(c) of the Citizenship Act have not been fulfilled.
JUDGE
OTTAWA, ONTARIO
January 6, 1999
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