Date: 19990330
Docket: T-304-98
IN THE MATTER OF THE CITIZENSHIP ACT,
R.S.C., 1985, c. C-29
AND IN THE MATTER OF an appeal from the
decision of a Citizenship Judge
AND IN THE MATTER OF
HUNG NANG CHOI
Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an appeal of the decision of Clare Westcott, Citizenship Judge, dated February 5, 1998. The judge found that the appellant had failed to meet the residency requirement of subsection 5(1)(c) of the Act since he did not centralize his mode of living in Canada.
[2] At the beginning of the hearing, counsel for the appellant asked for an interpreter to allow the appellant to testify.
[3] During the discussion, counsel for the appellant has admitted that the appellant does not speak English.
[4] Counsel for the appellant suggested that since the Citizenship Judge had already decided that the appellant was meeting the language requirement pursuant to subsection 5(1)(d) of the Act, this Court had no authority to address the issue of language requirement and that this Court should only address the appeal under subsection 5(1)(c) of the Act.
[5] This Court decided to take this particular question under reserve and the Court proceeded with the hearing on the residency requirement.
[6] It appears from the evidence that the appellant was present in Canada only 92 days out of 1,095 days, so he was short of 1,003 days.
[7] In Koo (1992), 59 F.T.R. 27 at 31, Madame Justice Reed stated :
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The "test" for establishing whether or not someone was "resident" in Canada within the meaning of paragraph 5(1)(c) was whether "Canada is the place where the appellant "regularly normally or customarily lives". Another formulation of the same test is whether Canada is the country in which he or she has centralized his or her mode of existence. |
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However, in several instances, this Court has held that actual physical presence may not be required where there are exceptional or special circumstances, as was the issue in re Chiu, (March 23, 1995), T-2035-93, re Chan, (March 23, 1995), T-291-94.
[8] The evidence shows that the appellant has moved his family to Canada but he is returning to Hong Kong for his business even if he has established businesses here in Canada.
[9] In her decision the Citizenship Judge stated:
While I accept that physical presence within Canada for the whole 1095 days is not required, a certain period of physical presence is critically important to ensure a certain amount of commitment and connection to Canada. I am not prepared to abandon it lightly.
[10] The jurisprudence has clearly established that when an appellant for citizenship is frequently absent from Canada, to have those absences count as periods of residence under the Act, the appellant has to demonstrate that he does maintain sufficient ties with Canada during those absences.
[11] Mr. Justice Nadon in Chi Hung Paul Cheung [1998] F.C.J. No. 813 says:
It is clear from Mr. Justice Thurlow"s comments that before the days of absence of a person can be considered for the purposes of the residence requirements under the Act that person must have established his or her home in this country before departing. In the present matter, there cannot be any doubt, in my view, that the respondent never established his home in Canada before he departed on his numerous trips to Hong Kong. What the evidence reveals is that the respondent simply moved his family from Hong Kong to Canada and then returned to Hong Kong to continue his business operations in that country. As the respondent never established his home in Canada he cannot, in my view, take advantage of the days physically spent outside of Canada to meet the requirements of paragraph 5(1)(c) of the Act.
[12] Mr. Justice Muldoon in Re Pourghasemi (1993) 19 Imm. L.R. (2d) 259 (F.C.T.D.) says:
It is clear that the purpose of para. 5(1)(c) is 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, snyagogues [sic ], mosques and temples - in a word wherever one can meet and converse with Canadians - during the prescribed three years.
[13] It is my opinion that the applicant rather lives in Hong Kong and occasionally returns to Canada to visit his family.
[14] The appellant has not demonstrated that he has centralized his mode of living in Canada.
[15] For these reasons, this application is dismissed.
[16] It will not be necessary to address the language requirement under subsection 5(1)(d) of the Act.
Pierre Blais
Judge
OTTAWA, ONTARIO
March 30, 1999
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