Date: 19990407
Docket: T-1618-98
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
HONG-WEI ZHANG
Respondent
REASONS FOR ORDER
REED, J.:
[1] This is an appeal by the Minister of a decision of a citizenship judge, which granted the respondent citizenship even though he was absent from Canada for 1162 days during the four years preceding his application for citizenship. Subsection 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29 requires an applicant for citizenship to have:
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(c) . . . been lawfully admitted to Canada for permanent residence, ... not ceased since such admission to be a permanent resident pursuant to section 24 of the Immigration Act, and ..., within the four years immediately preceding the date of his application, accumulated at least three years of residence in Canada . . . |
[2] It is well known that there are several formulations of this requirement. Mr. Justice Muldoon in Re: Pourghasemi (1993), 19 Imm.L.R. (2d) 259 (F.C.T.D.), at 260-1, wrote:
| It is clear that the purpose of paragraph 5(1)(c) is to ensure that everyone who is granted precious Canadian citizenship has become, or at least has been compulsorily presented with the everyday opportunity to become "Canadianized." ... So 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. |
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[3] Mr. Justice Pinard in Re: Chow (F.C.T.D., January 6, 1997, T-2629-95) wrote:
| There is jurisprudence which does not require physical presence of an applicant for citizenship in Canada for the entire 1,095 days, when there are special or exceptional circumstances. However, in my view, too long of an absence from Canada, albeit temporary, during that minimum period of time, as in the present case, is contrary to the purpose of the residency requirements of the Act. Indeed, the Act 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. |
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[4] In the present case, the citizenship judge relied on the decision by Mr. Justice Thurlow in Re: Papadogiorgakis, [1978] 2 F.C. 208 (T.D.). In that decision it was held that a person may be deemed to be resident in Canada even though he is not physically present within the country, if he has centred his life in Canada. In Re Koo, [1993] 1 F.C. 286 (T.D.), this was expressed as requiring proof that the individual had a more substantial connection to Canada than he or she did to any other country.
[5] The citizenship judge's reason for finding that the respondent's absences from Canada should be treated as presence here is that he has had outstanding success in China in bidding on major construction projects there on behalf of his Canadian company and its associates. The respondent practiced as an architect in China before coming to Canada in 1993. His wife came to Canada in 1992, she works and lives here. They purchased a home here in 1995 and since that time he has lived there when in Canada. He lives in rented accommodation in China.
[6] Counsel for the Minister argues that the respondent's success in bidding on major construction projects in China is not relevant to whether he has met the residency requirements. She argues that the fact that his wife is residing here is also not determinative - the respondent himself must fulfil the residency requirements that pertain to him. She correctly argues that his pattern of presence in Canada is one of returning to visit his wife, it does not demonstrate that he has a closer connection to Canada than to any other country. He is earning his living in China and residing there most of the time.
[7] It is well to keep in mind the reasons for the requirements of residency and language proficiency found in the Citizenship Act, although the latter is not in issue in this case. With the grant of citizenship goes the right, indeed some would also say the duty, to participate in the political life of this country. These involve voting in elections, supporting candidates, and the right to run for election as a member of the various levels of government. In order to participate in the life of the country in this way, a person should have a certain familiarity with this country. This cannot occur when there are lengthy absences and no prior attachment to the country, as exist in this case.
[8] For the reasons given the appeal is allowed and the citizenship judge's decision set aside.
"B. Reed"
Judge
TORONTO, ONTARIO
April 7, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-1618-98
| STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Applicant
Respondent
DATE OF HEARING: WEDNESDAY, MARCH 24, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: REED J.
DATED: WEDNESDAY, APRIL 7, 1999
APPEARANCES: Ms. Susan Nucci
For the Applicant
Mr. Irvin Sherman, Q.C.
For the Respondent
SOLICITORS OF RECORD: Morris Rosenberg
Deputy Attorney General
of Canada
For the Applicant
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990407
Docket: T-1618-98
Between:
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Applicant
Respondent
REASONS FOR ORDER
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