Canada (Minister of Citizenship and Immigration) v. Lok, docket T-1179-98

Date: 19990329

Docket: T-1179-98

BETWEEN:

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION,

     Appellant,

     - and -

     WILLIAM KIM KWONG LOK,

     Respondent.

     REASONS FOR ORDER

DENAULT J.

[1]      This is an appeal brought on behalf of the Minister of Citizenship and Immigration from the decision of Citizenship Judge Van Roggen, dated April 7, 1998, wherein the application of the respondent for a grant of citizenship under subsection 5(1)(c) of The Citizenship Act (the "Act") was approved.

[2]      The only issue in this appeal is whether the respondent met the residency requirement of paragraph 5(1)(c) of the Act when he applied for Canadian citizenship on January 23, 1997. Paragraph 5(1)(c) of the Act provides that a person, in the four years preceding his or her application for Canadian citizenship, must have accumulated at least three years of residence in Canada.

[3]      A citizen of Hong Kong, the respondent acquired permanent residence status in Canada on August 16, 1992 when he arrived here with his wife and his child. During the four years preceding his citizenship application, the respondent was frequently outside of Canada for lengthy periods and resided in Canada for only a total of approximately 235 days, being short of the minimum requirement of at least three years of residence in Canada within the four years immediately preceding the date of his application for Canadian citizenship by 860 days. Most of his absences were due to business trips to Hong Kong.

[4]      The judges of this Court have long been divided on the interpretation to be given to the residency requirement in paragraph 5(1)(c) of the Act. In 1978, Thurlow J. (as he then was) held in Papadogiorgakis, [1978] 2 F.C. 208, that physical presence in Canada was not always required in order to establish residence within the meaning of the Act. However, having recognized the requirement of actual presence in Canada, the Court clearly noticed that before going to university in the U.S.A, that student had already established a residence of his own at the home of his friends in Nova Scotia and had centralized his mode of living there.

[5]      More recently, a number of judges have adopted a much stricter approach with respect to the notion of residence, insisting on the obligation imposed by Parliament to an applicant to accumulate "... at least three years of residence in Canada ..." within the four years immediately preceding the date of his application. In the words of Muldoon J. in Poughasemi, Re (1993), 19 Imm. L.R. (2d) 259 (F.C.T.D.), the purpose of paragraph 5(1)(c) was to ensure that an applicant has "Canadianized" "... by "rubbing elbows" with Canadians ...".

[6]      Since the coming into force of the new Federal Court Rules, 1998, on April 25, 1998, an appeal pursuant to subsection 14(5) of the Citizenship Act, which had to be dealt with by way of a trial de novo pursuant to former Rule 912, is now dealt with as an application pursuant to Rule 300(c). This change in the procedure called for counsel to raise a new issue, i.e. the applicable standard of review.

[7]      It is not necessary, in order to dispose of this appeal, to choose between the stricter interpretation of the notion of residence or the more liberal one, or even to consider the applicable standard of review. If I were to select the first approach, I would have to decide, without hesitation, that on the facts of this case, the Citizenship Judge made an error of law by granting citizenship to the applicant insofar as he had not resided in Canada at least three years during the four year period preceding the date of his application for Canadian citizenship. If I were to adopt the more liberal approach as advocated by the Papadogiorgakis case, I would still have to come to the same conclusion. In my view, the Citizenship Judge obviously misapplied the test set out in that case by failing to consider that as soon as the applicant arrived in Canada, he undertook numerous trips abroad, namely to Hong Kong, without having first established a residence of his own or having tried to "Canadianize" himself in this country.

[8]      This Court does not have the benefit of reasons explaining why the Citizenship Judge came to the conclusion that the respondent met the residence requirement. In the notes annexed to her decision, the Citizenship Judge seems to have considered the fact that the applicant's wife and children were living in Vancouver, that he had to travel to Hong Kong or China for business reasons, that even though the applicant was short in his residency requirement by 860 days, that he had ".. the intention to spend more time in Canada", and that he "... will be an asset to Canada.". These facts, in my view, were not sufficient to satisfy the requirement set out in subsection 5(1)(c) of the Act.

[9]      For these reasons, this appeal by the Minister of Citizenship and Immigration is granted.

                             (Sgd.) "Pierre Denault"

                                 Judge

Vancouver, British Columbia

29 March 1999

     FEDERAL COURT TRIAL DIVISION

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT NO.:              T-1179-98

REASONS FOR ORDER OF DENAULT J. DATED MARCH 29, 1999

APPEARANCES:

SOLICITORS OF RECORD: