Canada (Minister of Citizenship and Immigration) v. Liu, docket T-1262-98

Date: 19990609

Docket: T-1262-98

     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

Applicant

     - and -

HONG LIU

Respondent

     REASONS FOR JUDGMENT

McGILLIS J.

[1]      The applicant Minister of Citizenship and Immigration ("Minister") has appealed, under subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C- 29 as amended ("Act"), from a decision of a Citizenship Judge granting citizenship to the respondent.

[2]      In his decision, the Citizenship Judge found that the respondent met all of the requirements for citizenship in subsection 5(1) of the Act. In particular, he found that the respondent satisfied the residency provision in paragraph 5(1)(c) of the Act, despite "a shortage of 494.5 days with respect to the minimum requirement of three years residence". He also found that the respondent had established a "residential base", and that he had centralized his mode of living in Canada.

[3]      A review of the evidence in the record confirms that the Citizenship Judge committed an error in calculating the extent of the respondent's absences from Canada. In particular, rather than a shortfall of 494.5 days, the respondent actually had a shortfall of approximately 592 days during the 1095 days preceding his application for citizenship. In my opinion, the Citizenship Judge committed a significant and fundamental error in assessing the crucial question of the respondent's actual time spent in Canada. In the circumstances, I am not satisfied that the Citizenship Judge's decision is correct. Indeed, the extent of the respondent's absences from Canada during his ten trips to China in the relevant time period are inconsistent with the assertion that he has "centralized his mode of living in Canada".

[4]      The appeal is allowed. No order as to costs.

"D. McGillis"

Judge

TORONTO, ONTARIO

June 9, 1999

     FEDERAL COURT OF CANADA

     Names of Counsel and Solicitors of Record

COURT NO:                          T-1262-98

STYLE OF CAUSE:                      THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                             - and -

                             HONG LIU

                            

DATE OF HEARING:                  TUESDAY, JUNE 8, 1999

PLACE OF HEARING:                  TORONTO, ONTARIO

REASONS FOR JUDGMENT BY:              McGILLIS, J.

DATED:                          WEDNESDAY, JUNE 9, 1999

APPEARANCES:                      Ms. Marianne Zoric

                                 For the Applicant

                             Mr. Irvin H. Sherman, Q.C.

                                 For the Respondent

SOLICITORS OF RECORD:              Morris Rosenberg

                             Deputy Attorney General

                             of Canada

For the Applicant

                              Martinello & Associates

Barristers & Solicitors

Suite 208, 255 Duncan Mill Road

Toronto, Ontario

M3B 3H9

                                 For the Respondent

                            

                             FEDERAL COURT OF CANADA

                                 Date: 19990609

                        

         Docket: T-1262-98

                             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

Applicant

                             - and -

                             HONG LIU

Respondent

REASONS FOR JUDGMENT