Date: 19981124
Docket: T-19-98
BETWEEN:
| 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 |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
- and -
KAM BIU HO
Respondent
REASONS FOR JUDGMENT
NADON, J.
[1] The appeal is allowed. There can be no doubt that the Citizenship Judge erred when she found that the Respondent met the residency requirements of the Citizenship Act. Firstly, even on the most favourable test, the Respondent cannot succeed.
[2] In Re: Papadogiorgakis, [1978] 2 F.C. 208 Thurlow, J. (as he then was) stated at page 214 that:
| A person with an established home of his own in which he lives does not cease to be resident there when he leaves it for a temporary purpose whether on business or vacation or even to pursue a course of study. The fact of his family remaining there while he is away may lend support for the conclusion that he has not ceased to reside there. The conclusion may be reached, as well, even though the absence may be more or less lengthy. It is also enhanced if he returns there frequently when the opportunity to do so arises. It is, as Rand J. appears to me to be saying in the passage I have read, "chiefly a matter of the degree to which a person in mind and fact settles into or maintains or centralizes his ordinary mode of living with its accessories in social relations, interests and conveniences at or in the place in question." |
[3] How can it be said in the present instance that the Respondent meets the above test? He was landed in Canada on June 21, 1992 and applied for Citizenship on February 13, 1997. During that period he spent 157 days only in Canada. The remainder of his time was spent in Hong Kong. It is clear, upon review of his travel schedule, that he was living in Hong Kong with the occasional trip to Canada. To grant citizenship to the Respondent, as the Judge did, requires a redraft of the Citizenship Act which neither the Judge nor I are impowered to do.
[4] Secondly, I agree entirely with the reasons given by Muldoon, J. in Re Chan, a decision rendered on February 3, 1998 in file T-804-97. In that matter the appellant was seeking to obtain a reversal of a citizenship judge's decision that he did not meet the residence requirements of the Act. The appellant had been absent from Canada, during the relevant period, for 954 days. Mr. Justice Muldoon concluded that s. 5(1)(c) of the Act clearly meant what is said, i.e. that an applicant had to physically reside in Canada for 3 of the 4 years preceding the citizenship application.
[5] For these reasons, the appeal is allowed.
(Sgd.) "Marc Nadon"
Judge
Vancouver, British Columbia
November 24, 1998