Date: 19990609
Docket: T-1892-98
Between :
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Appellant
- and -
Su-Chen Chiu
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] This is an appeal filed by the Minister of Citizenship and Immigration pursuant to subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29, (the Act) of the decision of Pam Glass, Citizenship judge, rendered September 4, 1998. The appellant maintains that the respondent had failed to meet the residency requirements of paragraph 5(1)(c) of the Act.
[2] The respondent stated in her residence questionnaire that the reason for her absences from Canada was to attend university in the U.S.A. commencing in September 1992; the respondent pursued studies in Ann Arbour, Michigan through to and postdating December 25, 1996, the date of her citizenship application.
[3] In her decision approving the respondent's application for citizenship, the Citizenship judge made the following observations:
| The applicant is a 27 year old M/A student at a U.S. University, who arrived in Canada in 1990. She attended school in Taiwan for 12 years, in Canada for two-and-a-half years and in the US for 6 years. According to the calculations of the Court - the applicant is 627 days short of the required residence. I have interviewed the applicant and reviewed the file. Evidence in the file indicates that the course of study the applicant is pursueing (sic) is not available to her in Canada. I recommend approval. |
|
[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 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 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. |
|
[5] 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 Afandi (November 6, 1998), T-2476-97 (F.C.T.D.); M.C.I. v. Kam Biu Ho (November 24, 1998), T-19-98 (F.C.T.D.); M.C.I. v. Chen Dai (January 6, 1999), T-996-98 (F.C.T.D.), M.C.I. v. Chung Shun Paul Ho (March 1, 1999), T-1683-96 (F.C.T.D.) and M.C.I. v. Fai Sophia Lam (April 28, 1999), T-1524-98 (F.C.T.D.).)
[6] 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.
[7] Therefore, given the substantial absences of the respondent from Canada in the present case (she was present in Canada for only 468 days leaving her short of the required 1,095 by 627 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.
[8] Even though by reason of rule 300 of the Federal Court Rules, 1998 (the Rules) which came into force on April 25, 1998, an appeal pursuant to subsection 14(5) of the Citizenship Act is no longer an appeal de novo, it is still an appeal. Rule 300(c) states that Part 5 of the Rules, which includes mere procedural rules, applies to "appeals under subsection 14(5) of the Citizenship Act". There is nothing in the Citizenship Act, in the Federal Court Act or in the Rules which states that an appeal pursuant to subsection 14(5) of the Citizenship Act is an application for judicial review. In fact, rule 300 only states that Part 5 of the Rules applies to different kinds of proceedings including, amongst others, applications for judicial review, appeals under subsection 14(5) of the Citizenship Act, appeals under section 56 of the Trade-marks Act, references from a tribunal under rule 320, requests under the Commercial Arbitration Code, applications for registration, recognition or enforcement of a foreign judgment, . . .. To me, this simply means that appeals under subsection 14(5) of the Citizenship Act, like applications for judicial review of administrative action and any of the other proceedings described in rule 300, are governed by the procedural rules contained in Part 5 of the Rules. In other words, an appeal under subsection 14(5) of the Citizenship Act is no longer an appeal de novo, but it remains an appeal which, by virtue of the Rules, is dealt with procedurally the same way an application for judicial review is dealt with. Such an appeal, therefore, is not an application for judicial review within the meaning of section 18.1 of the Federal Court Act. Accordingly, this Court is not limited by subsection 18.1(3)1 of that Act and may simply quash a decision of a Citizenship judge if, like in the present case, it does not meet the applicable test of correctness.
[9] The appeal, therefore, is allowed and the decision of the Citizenship judge, dated September 4, 1998, is quashed on the ground that at the time the respondent applied for Canadian citizenship, she did not meet the residency requirements of paragraph 5(1)(c) of the Act. Consequently, the respondent's application for Canadian citizenship is denied.
JUDGE
OTTAWA, ONTARIO
June 9, 1999
__________________
1 18.1 (3) On an application for judicial review, the Trial Division may (a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or (b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.
18.1 (3) Sur présentation d'une demande de contrôle judiciaire, la Section de première instance peut : a) ordonner à l'office fédéral en cause d'accomplir tout acte qu'il a illégalement omis ou refusé d'accomplir ou dont il a retardé l'exécution de manière déraisonnable; b) déclarer nul ou illégal, ou annuler, ou infirmer et renvoyer pour jugement conformément aux instructions qu'elle estime appropriées, ou prohiber ou encore restreindre toute décision, ordonnance, procédure ou tout autre acte de l'office fédéral.
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