Date: 20000606
Docket: T-2329-98
Between :
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Appellant
- and -
CHI CHENG ANDY SUN
Respondent
REASONS FOR JUDGMENT
PINARD, J. :
[1] This is an appeal filed by the Minister of Citizenship and Immigration (the appellant) under subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29, (the Act) of a decision rendered by Citizenship Judge Marguerite Ford on October 15, 1998, approving the respondent's application for Canadian citizenship. The appellant maintains that the Citizenship Judge erred in determining that the respondent had satisfied the residency requirements set out in paragraph 5(1)(c) of the Act.
[2] 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, not an application for judicial review. 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. Subsection 14(5) of the Citizenship Act provides a comprehensive right of appeal, which prevents the decision of a Citizenship Judge from being reviewed under section 18.1 of the Federal Court Act (see section 18.5 of the Federal Court Act and Shun v. Canada (M.C.I.) (1996), 35 Imm.L.R. (2d) 211 (F.C.A.)). 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 is wrong in law.
[3] The respondent, a citizen of Taiwan, was granted permanent resident status in Canada on July 22, 1990. He completed his application for Canadian citizenship on September 30, 1997. During the relevant period set out in paragraph 5(1)(c) of the Act, the respondent was physically present in Canada for 220 days and absent for 1,240, leaving him short 875 days. These absences were spent in Taiwan and were due to visiting sick relatives and to his business, which is manufacturing and exporting shoes.
[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.); M.C.I. v. Fai Sophia Lam (April 28, 1999), T-1524-98 (F.C.T.D.) and M.C.I. v. Su-Chen Chiu (June 9, 1999), T-1892-98 (F.C.T.D.).)
[6] Therefore, given the substantial absences of the respondent from Canada in the present case, I find that the Citizenship Judge's conclusion that he met the residency requirements of paragraph 5(1)(c) of the Act is totally unreasonable and the result of an erroneous application of the statutory provision.
[7] The appeal, therefore, is allowed and the decision of the Citizenship Judge, dated October 15, 1998, 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. Consequently, the respondent's application for Canadian citizenship is denied.
JUDGE
OTTAWA, ONTARIO
June 6, 2000
__________________
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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