Date: 19990106
Docket: T-1044-98
Between :
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Appellant
- and -
HSIN-HSIN LEE
Respondent
REASONS FOR JUDGMENT
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 Robert Meagher, Citizenship Judge, rendered and communicated to the appellant by way of a letter dated April 1, 1998. The appellant maintains that the respondent had failed to accumulate the number of days for residency required by paragraph 5(1)(c) of the Act.
[2] The respondent was born in Taiwan on October 6, 1955. He acquired landed immigrant status on June 5, 1993. At the time the respondent applied for citizenship, on December 11, 1996, he had only been physically present in Canada for 651 days and was short by 444 days of the minimum requirement of at least 1,095 days (three out of four years' residence).
[3] By letter dated October 8, 1998, sent to counsel for the appellant, the respondent wrote that he did not intend to file opposition to this appeal and that he intended to apply again for Canadian citizenship once he will have "lived in Canada long enough to meet the time requirements".
[4] Combined with the respondent's absence at the hearing before me, the above admissions are sufficient to justify a judgment allowing the appeal on the ground that the Citizenship Judge has failed to have proper regard to the residence requirements of paragraph 5(1)(c) of the Act.
[5] Assuming 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, as in the present case, 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.
[6] Consequently, the appeal is allowed and the decision of Robert Meagher, Citizenship Judge, dated April 1, 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 Citizenship Act.
JUDGE
OTTAWA, ONTARIO
January 6, 1999
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