Date: 20011023
Docket: T-88-01
Neutral citation: 2001 FCT 1149
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Appellant
and
KAT HONG SIMON CHENG
Respondent
REASONS FOR ORDER
NADON J.
[1] This is an appeal by the Minister of Citizenship and Immigration, pursuant to subsection 14(5) of the Citizenship Act, from the decision rendered by Citizenship Judge Paul Gallagher on November 27, 2000, which approved the Respondent's application for a grant of Canadian citizenship under subsection 5(1).
[2] At the end of the hearing before me on October 23, 2001, I informed the parties that the Minister's appeal would be allowed. My reasons for reaching that conclusion are as follows.
[3] The Respondent was landed in Canada on August 21, 1996. At the end of March 2000, he applied for Canadian citizenship. During the period between August 21, 1996 and the end of March 2000 the Respondent was present in Canada for 561 days and absent for 842 days. Hence, the Respondent was short 564 days of the residency requirement under the Act.
[4] Notwithstanding, the Citizenship Judge concluded in the Respondent's favour. The decision, dated November 27, 2000 reads as follows:
The application is approved.
Mr Cheng is an international businessman and investor (he landed in Canada on this basis). All his business absences are the result of having to do business on an international basis - essentially between manufacturing in SE Asia and sales in North America.
Counterbalancing his absences are his and his family's strong attachment to Canada for a sustained period of time.
If we allow international business persons to land in Canada, it seems only logical and right that the residency requirement be adjusted to international business realities.
[5] Judge Gallagher may be right that it would be logical and right to adjust the residency requirement to international business realities. However, my problem and his is that we are not authorised by Parliament to make these adjustments. Parliament only can enact and amend laws in this country. Consequently, the basis upon which Judge Gallagher decided this case is plainly wrong.
[6] Paragraph 5(1)(c) of the Act requires all applicants for Canadian citizenship to show that they have accumulated at least three years of residence in Canada within the four years immediately preceding their applications. In the present case, the Respondent has not made this proof. In Zhang v. Canada (M.C.I.), [2000] F.C.J. No. 1943 (T.D.), paragraph 9, I made the following statement:
I agree entirely with my colleagues Muldoon J. and Pinard J. I, like them, am of the view that the Act requires, in most cases, physical presence in Canada for 3 years. There may well be cases where an applicant has not spent 3 years in Canada but nonetheless he will have established residence in this country so as to allow him to accumulate days even though these are spent abroad. However, the present case is not such a case...
[7] The present matter does not fall within the exception referred to in the paragraph quoted from Zhang. As the Respondent does not meet the residency requirement of the Act, the Minister's appeal will be allowed and the decision made by Judge Gallagher will be set aside.
(Sgd.) "Marc Nadon" Judge
Vancouver, British Columbia
October 23, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-88-01
STYLE OF CAUSE: The Minister of Citizenship and Immigration v. Kat Hong Simon Cheng
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: October 23, 2001
REASONS FOR ORDER OF THE COURT BY: Nadon J.
DATED: October 23, 2001
APPEARANCES:
Mandana Namazi FOR APPELLANT
Kat Hong Simon Cheng RESPONDENT
SOLICITORS OF RECORD:
Deputy Attorney General of Canada FOR APPELLANT
Vancouver, British Columbia
- RESPONDENT
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