Date: 20030529
Docket: T-1413-01
Citation: 2003 FCT 627
Between:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Appellant
- and -
Dr. Chung-Hsin Lin
Respondent
REASONS FOR JUDGMENT
PINARD J.:
This is an appeal brought under subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 (the "Act") and section 21 of the Federal Court Act, R.S.C. 1985, c. F-7, from the decision of Citizenship Judge L. Sekora (the "citizenship judge"), dated June 21, 2001, wherein he approved the respondent's application for a grant of citizenship.
The respondent, Dr. Chung-Hsin Lin, is a citizen of Taiwan. He and his family entered Canada as landed immigrants on January 20, 1993. On February 5, 2001, the respondent completed an application for Canadian citizenship. In the four years immediately preceding the application, the respondent was physically present in Canada for 170 days, falling short of the required period by 925 days.
The respondent was accompanied to Canada by his wife, son, and two daughters. He is trained and licensed as a physician-surgeon in Taiwan, and his ability to practise outside Taiwan is restricted. His absences from Canada are mainly business related, as he has continued to work as a physician in Taiwan in order to support his family.
The citizenship judge granted the respondent's application for citizenship with this explanation:
This applicant can't work in B.C. His work takes him out of Canada. His family is here. His daughters have attended schools in Canada. His feeling is if he was a Canadian citizen he might be able to work in B.C. He applied for citizenship in 2001. But has been in Canada with his family since 1993. Based on that information and all other information I approve this applicant.
Residence requirements are set out in paragraph 5(1)(c) of the Act, which reads as follows:
| 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 . . .
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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, . . .
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The appellant argues that the citizenship judge erred in granting the respondent's application for citizenship, since the latter had only spent 170 days physically present in Canada during the four years preceding his application for citizenship.
In my opinion, actual presence in Canada is by far the most important factor to be taken into account when assessing whether an applicant has met the residency requirements of the Act. Only under special or exceptional circumstances will an applicant not be required to be present physically in Canada during the minimum period. On the subject of the physical presence requirement, I stated as follows in Senoussi v. Minister of Citizenship and Immigration (July 7, 2000), T-1420-99:
[2] In Re Pourghasemi (1993), 19 Imm.L.R. (2d) 259, at 260, my brother Muldoon J. set out the objectives underlying that 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 19 Imm. L.R. (2d) 1], in different factual circumstances, of course.
(See also the judgments of the Federal Court Trial Division in Re Afandi (November 6, 1998), T-2476-97, M.C.I. v. Kam Biu Ho (November 24, 1998), T-19-98, M.C.I. v. Chen Dai (January 6, 1999), T-996-98, M.C.I. v. Chung Shun Paul Ho (March 1, 1999), T-1683-95, M.C.I. v. Fai Sophia Lam (April 28, 1999), T-1524-98, M.C.I. v. Su-Chen Chiu (June 9, 1999), T-1892-98, M.C.I. v. Chi Cheng Andy Sun (June 6, 2000), T-2329-98, Oi Hung Vera Hui v. M.C.I. (June 6, 2000), T-1338-99 and Martin Long Ying Lo v. M.C.I. (June 6, 2000), T-959-99).
[3] This Court has held that a correct interpretation of s. 5(1)(c) of the Act does not require a person to be physically present in Canada throughout the 1,095-day period of residence prescribed when there are special and exceptional circumstances. However, I consider that actual presence in Canada is still the most relevant and most important factor to be taken into account in determining whether a person has "resided in Canada within the meaning of this provision. As I have said many times, an extended absence from Canada, though temporary, during this minimum period of time is contrary to the spirit of the Act which already allows a person legally admitted to Canada as a permanent resident not to reside there for one of the four years preceding the date of his or her citizenship application.
(Emphasis is mine.)
In the case at bar, the respondent submits that special and exceptional circumstances existed for his absences from Canada. In fact, one 118-day absence was explained by the respondent's need to look after his father, who was suffering from liver cancer. Otherwise, the respondent cites work and caring for his elderly parents as the reasons for his absences. However, on the list of specific absences included in the file at page 19, the only reason given for any absence is "business". The only business mentioned by the respondent is his continued medical practice in Taiwan. This does not constitute an exceptional or special circumstance which would allow the respondent's extended absence from Canada. Even his father's illness, evidence of which was before the citizenship judge, only accounts for a fraction of the time spent in Taiwan. I find, therefore, that the citizenship judge's conclusion that the respondent has 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.
For the reasons given above, the appeal is allowed and the decision of the citizenship judge, dated June 21, 2001, 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
May 29, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1413-01
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION v. Dr. Chung-Hsin Lin
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: May 1, 2003
REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE PINARD
DATED: May 29, 2003
APPEARANCES:
Ms. Pauline Anthoine FOR THE APPELLANT
Mr. Alfred Woo FOR THE RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE APPELLANT
Deputy Attorney General of Canada
Ottawa, Ontario
Alfred T.J. Woo FOR THE RESPONDENT
Barrister and Solicitor
Richmond, British Columbia
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