Date: 19990331
Docket: T-1222-98
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Appellant,
- and -
GUNTHER RIEPER,
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 27, 1998, wherein the application of the respondent for a grant of citizenship under paragraph 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 April 15, 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] This case is about a respondent who, having resided in Canada for eight years from 1984 to 1992, went back to his country of origin (Germany) for five years. He visited Canada with his fiancee for a period of three weeks in 1996. During another visit to Canada in 1997, he was granted a Returning Resident Permit for one year, and he applied for Canadian citizenship on April 15, 1997. He returned to Canada on April 6, 1998.
[4] The Citizenship Judge who heard the respondent, found that he met the residency requirement of paragraph 5(1)(c) of the Act. In the notes annexed to her decision, the Citizenship Judge seems to have considered, among others, the following facts:
| "The applicant lived in Canada with his wife, from 1984 until 1992 when for marital reasons he returned to Hamburg. |
|
| He left his possessions in Canada (Sooke) and sold a house he had purchased in 1985. He had been in Canada 8 years. |
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| In Hamburg he had a temporary job and re-married and returned to Canada in 1996. He was considered a landed immigrant in 1997 and a Returning Resident in 1997. |
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| His second entry to Canada is short 735 days but his previous residency should be considered." ... |
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[5] The Minister of Citizenship and Immigration appeals that decision on grounds of errors of fact and law.
[6] It is clear from the file that the Citizenship Judge first erred in her assessment of the facts by finding that the respondent had returned to Canada in 1996, when he only visited the country for merely three weeks from May 25 to June 16, 1996. Moreover, by finding that the respondent's second entry into Canada was short by 735 days, it has to be presumed that the Citizenship Judge was satisfied that the respondent had been in Canada for 360 of the required 1095 days (three years) during the relevant period of four years preceding the date of his application for citizenship. That was another error in the assessment of the facts since the respondent had been in the country for only two brief visits in the four year period, one in 1996 and the other from April 5, 1997 to the date of his application for citizenship on April 15, 1997.
[7] The Citizenship Judge committed a more serious error by taking into consideration the eight years spent by the respondent in Canada from 1984 to 1992, outside the period relevant for his citizenship application. Subparagraph 5(1)(c)(ii) of the Act stipulates how the required three years of residence ought to be calculated:
| (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; |
|
In my view, this requirement excludes the days spent by the respondent in Canada outside the relevant period of four years preceding the date of his application for citizenship. It was an error by the Citizenship Judge to consider those days.
[8] For these reasons, the appeal by the Minister of Citizenship and Immigration must be granted. That being said, I find the situation of the respondent to be very unfortunate. The fact is that if he had applied for citizenship in 1992, he would probably now be a Canadian citizen. I am sure that he will eventually make a very fine citizen of Canada, should he decide to file a fresh application, as the evidence shows that, using the words of Muldoon J. in Pourghasemi, Re (1993), 19 Imm. L.R. (2d) 259 (F.C.T.D.), he has already "Canadianized" "... "rubbing elbows" with Canadians ...".
(Sgd.) "Pierre Denault"
Judge
Vancouver, British Columbia
31 March 1999
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-1222-98
| STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| LOCATION OF HEARING: VANCOUVER, BRITISH COLUMBIA |
| DATE OF HEARING: MARCH 30, 1999 |
REASONS FOR ORDER OF DENAULT J. DATED MARCH 31, 1999
APPEARANCES:
| Ms. Sandra Weafer for the Appellant |
| Mr. Gunther Rieper on his own behalf |
SOLICITORS OF RECORD:
| Mr. Morris Rosenberg for the Appellant |
| Deputy Attorney General of Canada |
| Mr. Gunther Rieper on his own behalf |
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