Date: 19991108
Docket: T-2434-98
BETWEEN:
MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
LISA HUAN LIAN LI
Respondent
REASONS FOR ORDER
GIBSON J.
[1] These reasons arise out of an appeal of a decision of a Citizenship Judge in which the judge determined that the respondent met the requirements for Canadian citizenship. The decision under appeal is dated the 29th of October, 1998.
[2] In his decision, the learned Citizenship Judge wrote:
| At the hearing held before me on the 29th of October, 1998, I found that the applicant met all of the requirements for citizenship set out in the Citizenship Act with the possible exception of residence. The applicant had a shortage of 949 days with respect to meeting the minimum requirement of three years residence in Canada required in the Act, resulting from temporary absences from Canada during the four years prior to applying. |
| After considering the residence questionnaire and other items and documentation submitted and through credible declaration of intent by the applicant at the hearing I have concluded that the applicant has established a residential base at Calgary and a centralized mode of living in Canada on 8 Sienna Park, S.W. and the applicant has continued to maintain a residential base and a centralized mode of living in Canada and that during such temporary absences the applicant had no intention of residing elsewhere. |
| Mrs. Li"s residence is firmly established in Canada. The fact of which is supported by all the accompanying documents. There is no doubt that her residential base is here, despite the fact so much time is spent with her husband in China. She was there because she could travel with her young son. Now she is required to be home more because her son has started school. She sees Canada as her home, and always has since buying property here. Her visits to China are just that - visits. |
| I have decided that the applicant Lisa Huan Lian fully meets the residence requirements of section 5(1)(c) of the Act and within the framework outlined by Associate Chief Justice Thurlow in Re: Papadogiorgakis, No. T-872-78. |
[3] Of the above-quoted paragraphs, that commencing "Mrs. Li"s ..." would appear to be in the handwriting of the learned Citizenship Judge. The other paragraphs appear to be part of a printed form with minimal blank spaces filled in by hand.
[4] The respondent arrived in Canada as a permanent resident on the 22nd of May, 1992. Her application for landing had been sponsored by her husband who, together with his mother, father, sister and brother, all resided in Calgary.
[5] Following her arrival, the respondent obtained employment and remained in Canada for some seventeen months. Apparently she and her husband resided with her sister-in-law during that period.
[6] The respondent"s son was born in Calgary on the 8th of April, 1993.
[7] The respondent applied for Canadian citizenship on or about the 1st of November, 1997. Thus, the four-year period for determining compliance with the residency requirements of the Citizenship Act1 started to run on or about the 31st of October, 1993.
[8] The respondent first returned to the People"s Republic of China, her country of origin, on the 1st of November, 1993. She remained there for 225 days "to sell [her] residence". Since her husband was apparently working in China, an additional purpose was "to accompany spouse".
[9] The respondent returned to Canada on the 14th of June, 1994 and remained in Canada some thirty-seven days. The respondent then again travelled to China "to accompany spouse" for a period of 159 days. She returned to Canada on the 30th of December 1994 and remained here for sixteen days. She then again travelled to China "to accompany spouse" for 126 days. This pattern repeated itself with stays of 6, 17, 23, 25 and 18 days in Canada interspersed with stays of 174, 149, 180, 142 and 160 days in China, the last stay in China ending with the day of her application for Canadian citizenship. Each stay in China was at the same address. Her stays in Canada were first, as earlier indicated, in the home of her sister-in-law, and later in two houses successively owned by the respondent and her husband.
[10] In the result, the applicant was 949 days short of the 1,095 days of residence in Canada in the four years preceding the date of application for citizenship that is required by paragraph 5(1)(c) of the Citizenship Act.
[11] In Lam v. Canada (Minister of Citizenship and Immigration)2, Mr. Justice Lutfy wrote at paragraph 33:
| Justice and fairness, both for the citizenship applicants and the Minister, require some continuity with respect to the standard of review while the current Act is still in force and despite the end of the de novo trials. The appropriate standard in these circumstances, is one close to the correctness end of the spectrum. However, where citizenship judges, in clear reasons which demonstrate an understanding of the case law, properly decide that the facts satisfy their view of the statutory test in paragraph 5(1)(c), the reviewing judges ought not to substitute arbitrarily their different opinion of the residency requirement. It is to this extent that some deference is owed to the special knowledge and experience of the citizenship judge during this period of transition. |
[12] Thus, the question before me on this appeal is whether, against the foregoing brief outline of the facts in this matter, the Citizenship Judge has, in clear reasons which demonstrate an understanding of the case law, properly decided that the facts satisfy his view of the statutory test in paragraph 5(1)(c) of the Citizenship Act.
[13] In this matter, the learned Citizenship Judge adopted the interpretation of the statutory test in paragraph 5(1)(c) enunciated in In re Citizenship Act and Papadogiorgakis3. In that decision, Associate Chief Justice Thurlow, as he then was, wrote at pages 213-14:
| It seems to me that the words "residence" and "resident" in paragraph 5(1)(b )of the new Citizenship Act [now paragraph 5(1)(c)] are not as strictly limited to actual presence in Canada throughout the period as they were in the former statute but can include, as well, situations in which the person concerned has a place in Canada which is used by him during the period as a place of abode to a sufficient extent to demonstrate the reality of his residing there during the material period even though he is away from it part of the time. [emphasis added] |
[14] With great respect, on the facts of this matter as outlined in these reasons, I am satisfied that the learned Citizenship Judge failed to demonstrate an understanding of the case law in deciding that the facts satisfy the statutory test in paragraph 5(1)(c), as that test was interpreted by Associate Chief Justice Thurlow. Put another way, against the words quoted above from Justice Lutfy"s and Associate Chief Justice Thurlow"s reasons, the Citizenship Judge did not "properly decide that the facts [of this matter] satisfy ...the statutory test". The respondent would appear to have established her residence in Canada before first returning to the People"s Republic of China. But thereafter, and until the date of her application for citizenship, the totality of the evidence before the Citizenship Judge fails to disclose that she spent "sufficient" time in Canada, both qualitatively and quantitatively, to maintain her residency or, in the words of Associate Chief Justice Thurlow, "...to demonstrate the reality of [her] residing [in Canada] during the material period...".
[15] For the foregoing reasons, this appeal will be allowed and the decision of the Citizenship Judge, dated the 29th of October, 1998, will be quashed on the ground that at the time the respondent applied for Canadian citizenship, she did not meet the residency requirement of paragraph 5(1)(c) of the Act. Consequently, the respondent"s application for Canadian citizenship, submitted on or about the 1st of November, 1997, will be denied.
________________________
Judge
Ottawa, Ontario
November 8, 1999
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1 R.S.C. 1985, c. C-29.
2 [1999] F.C.J. 410 (Q.L.)(F.C.T.D.).
3 [1978] 2 F.C. 204 (F.C.T.D.).
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