Date: 20000713
Docket: T-1550-99
BETWEEN:
CHUN HUAN CHEN
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL J.
[1] The question in this appeal is whether, in the decision of 30 June 1999, the Citizenship Judge erred in not approving the Applicant"s application for Canadian citizenship pursuant to s.5(1) of the Citizenship Act (the "Act").1
[2] In the present case, the error of law argued by the Applicant is based on the following statement by Lutfy, A.C.J. in Chong Ming So v. The Minister of Citizenship and Immigration (File T-1700-98, dated 1 April 1999) who, with reference to the reasons of the Citizenship Judge in that case, says as follows:
| This statement reflects those decisions of this Court which follow Papadogiorgakis and allow for temporary absences where the applicant has otherwise centralized a mode of living in Canada. However, the Citizenship Judge also refers extensively to Pourghasemi, Re (1993), 19 Imm. L.R. (2d) 259 (F.C.T.D.), a decision which applies the stricter interpretation of paragraph 5(1)(c) where the prescribed three years is "little enough time in which to become Canadianized". The simultaneous reference to the conflicting case law in the letter of decision, without further explanation, may reflect a misunderstanding of the legal issues against which she could apply this applicant"s fact circumstances. In my opinion, this constitutes a valid ground of appeal. |
[3] In the present case, the critical passage from the Citizenship Judge"s reasons for decision contained in the letter of refusal dated 30 June 1999, is as follows:
| I found that you met all the requirements of the Act with the exception of 5(1)(c) "Residence". Subsection 5(1)(c) of the Citizenship Act requires the accumulation of at least three years of residence in Canada within the four years immediately preceding the date of application in the manner prescribed by that subsection of the Act. |
| The reasons for this residency requirement is clearly stated in the Federal Court of Appeal decision involving RE: Pourghasemi (Bearing File no. T-80"92) where Justice Muldoon stated: |
| "Those who would throw in their lot with Canadians by becoming citizens must first throw in their lot with Canadians by residing among Canadians, in Canada,... during three of the preceding four years, in order to Canadianize themselves. It is not something one can do while abroad, for Canadian life and society exist only in Canada and nowhere else." |
| Also, please note the Parliament of Canada allowed a four year period within which an applicant could establish the three years of residency. This was done in order to allow for some absences during that four year period. In RE: Koo (Bearing File no. T-20-92), Justice B. Reed comments upon the intention of Parliament in setting this period: |
| "The requirement of three year residence within a four year period seems to have been designed to allow for one year"s physical absence during the four year period. Certainly the debates of the period suggest that physical presence in Canada for 1095 days was contemplated as a minimum." |
| At the hearing, it was clear that you hoped your shortage of residency days could be explained to the Court"s satisfaction. No doubt you are aware that under special circumstances, persons have been deemed to satisfy the intent of the residency requirement despite lengthy physical absences from Canada. |
| I carefully considered the evidence on your file and my interview with you. You are a business man who travels to Taiwan and Hong Kong constantly. You spend a lot more time in Hong Kong and Taiwan than in Canada and appear to be visiting here. In my opinion, you have not centralized your mode of living in Canada. Therefore, I am unable to approve this application. |
[4] Counsel for the Applicant argues strongly that, on the authority of Chong Ming So, the error in the present case is the quotation from Pourghasemi which sets a rigid test, its reinforcement through a statement from Koo that says the rigid test is the intention of Parliament, and then, in contradiction, apparently applying the more flexible test found inRe Papadogiorgakis [1978] 2 F.C. 208. In Papadogiorgakis , at 214, Thurlow J. says as follows:
| A person with an established home of his own in which he lives does not cease to be resident there when he leaves it for a temporary purpose whether on business or vacation or even to pursue a course of study. The fact of his family remaining there while he is away may lend support for the conclusion that he has not ceased to reside there. The conclusion may be reached, as well, even though the absence may be more or less lengthy. It is also enhanced if he returns there frequently when the opportunity to do so arises. It is, as Rand J. appears to me to be saying in the passage I have read, "chiefly a matter of the degree to which a person in mind and fact settles into or maintains or centralizes his ordinary mode of living with its accessories in social relations, interests and conveniences at or in the place in question. |
[5] After some reflection, I find I am unable to accept the Applicant"s argument.
[6] I find that the Citizenship Judge"s purpose in making the statements quoted above was just to explain to the Applicant that there is an intended minimum residency requirement in the Citizenship Act , but that this minimum requirement can be met "despite lengthy physical absences from Canada". I find no error in the interpretation and application of these principles.
[7] Therefore, I find the Citizenship Judge did not err in the application of Thurlow J."s decision in Papadogiorgakis and was entitled to find that the Applicant had not centralized his mode of living in Canada.
ORDER
[8] Accordingly, this appeal is dismissed.
[9] I make no award as to costs.
"Douglas R. Campbell"
J.F.C.C.
Toronto, Ontario
July 13, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: CHUN HUAN CHEN |
- and -
| MINISTER OF CITIZENSHIP AND IMMIGRATION |
| DATE OF HEARING: WEDNESDAY, JULY 12, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
REASONS FOR ORDER
| AND ORDER BY: CAMPBELL J. |
DATED: THURSDAY, JULY 13, 2000
| APPEARANCES BY: Mr. Sheldon M. Robins |
| SOLICITORS OF RECORD: Sheldon M. Robins |
Barrister & Solicitor
7707 Kennedy Road, Suite 102
Markham, Ontario
L3R 0N6
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20000713
Docket: T-1550-99
BETWEEN:
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
AND ORDER
__________________
1 According to my interpretive findings in MCI v. Wing Tung Thomas Yeung (F.C.T.D. No. T-1256-98, rendered 3 February 1999), the issue in appeals such as the one in the present case is whether the Citizenship Judge made a reviewable error.
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