Date: 20010117
Docket: T-1419-99
BETWEEN:
CHI KIT GINO NG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HANSEN J.:
Introduction
[1] The applicant in this appeal challenges the June 8, 1999 decision of Citizenship Judge H. Peter Oberlander, which refused his application for citizenship citing failure to meet the residency requirements of paragraph 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29 ("Act").
Background
[2] The applicant, his parents, and his sister received landed immigrant status in Vancouver on March 4, 1994. His parents and sister are now Canadian citizens. The applicant applied for Canadian citizenship on March 18, 1998. During the four year period immediately prior to his application, he was absent from Canada for approximately 863 days and present in Canada for 623 days. As a result, he is 472 days short of the required 1095 days.
[3] During his absence from the country, the applicant attended his final year of high school, then university in the United States, having applied unsuccessfully to universities in British Columbia. His education and living expenses have been funded entirely by his parents, on whom he remains dependant. The applicant returns to the family home in Vancouver on school breaks, although distance and expense preclude his return at every possible opportunity.
[4] The applicant has his own room, furnishings, and personal effects in his parents' Vancouver home. He contends Vancouver is his home, but for his time away at school, is where he has centralized his mode of existence; he wishes, like the other members of his family, to be a Canadian citizen. For its part, the respondent states he has not met the residence requirement as set out in the Act.
[5] The Citizenship Judge's reasons held "... until the date of your citizenship application on March 19, 1998 you were absent for approximately 838 days and present for only 623 leaving you 472 short of the required 1095 days. A full review of your case has led me to conclude that your substantive absences from Canada cannot be counted as periods of residence under the Act."
[6] The section in question is paragraph 5(1)(c), which provides:
| 5. (1) The Minister shall grant citizenship to any person who ... (c) has been lawfully admitted to Canada for permanent residence, has not ceased since such admission to be a permanent resident pursuant to section 24 of the Immigration Act, and has, within the four years immediately preceding the date of his application, accumulated at least three years of residence in Canada calculated in the following manner: (i) for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and (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; |
5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois_: ... c) a été légalement admise au Canada à titre de résident permanent, n'a pas depuis perdu ce titre en application de l'article 24 de la Loi sur l'immigration, et a, dans les quatre ans qui ont précédé la date de sa demande, résidé au Canada pendant au moins trois ans en tout, la durée de sa résidence étant calculée de la manière suivante_: (i) un demi-jour pour chaque jour de résidence au Canada avant son admission à titre de résident permanent, (ii) un jour pour chaque jour de résidence au Canada après son admission à titre de résident permanent; |
[7] The letter of refusal makes no reference to the relevant case law.
Standard of Review
[8] In Lam v. Canada (Minister of Citizenship and Immigration) [1999], F.C.J. No. 410, (1999) 164 F.T.R. 177, Lutfy J. (as he then was) examines the Federal Court's approaches to determining residency requirements under paragraph 5(1)(c) of the Act. In paragraph 33, he states:
| 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 do 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 [from trial de novo to review by application, and prior to legislated clarification of the residency requirement in s.5(1)(c)]. [Emphasis added] |
Analysis
[9] Admittedly, this Court has rendered diverse opinions with respect to the requirement for actual physical presence in Canada. Indeed, in Lai v Canada (Minister of Citizenship and Immigration) [2000] F.C.J. No. 1361, Pelletier J. acknowledges this situation, noting:
| It is unnecessary to review the all too familiar history of the divided opinion in this Court on the question of the residence requirement found at paragraph 5 (1)(c) of the Citizenship Act (the "Act"). Suffice it to say that a number of judges of this Court have found the failure to be physically present in the country for 1095 days in the fours years immediately preceding the date of application is not a bar to citizenship if the applicant can show that notwithstanding the absences, he has centralized his ordinary mode of existence in Canada such that periods of absence do not count against him. In doing so they adopted the reasoning in Re Papdogiorgakis, supra. Other judges have followed Re Pourghasemi, supra, and have dismissed applications where the days of physical presence did not meet the statutory minimum without regard to the reasons for the shortfall. |
[10] In the present case, the Citizenship Judge did not acknowledge there is case law that speaks to situations similar to this one: where the applicant is a dependant student of parents in Canada, who are paying for the applicant's education and to whose home the student returns during school vacations. Nor did he explain how this applicant's circumstances were distinguished from those in: Chan, Luk, Yeung, Wong, Chung, Hsu, Wong, Cheung, and Khoury1, and this list is not exhaustive, where this Court has determined that someone studying outside of Canada after having accompanied his or her parents to Canada and who remains totally dependant on those parents while away in school, as this applicant has, should qualify for citizenship despite a shortfall in physical residency.
Conclusion
[11] In the present case, the reasons of the Citizenship Judge neither advert to this case law, nor do they explain how this applicant's facts are distinguished and his outcome is justifiably inconsistent with other previous applicants in similar circumstances.
[12] Accordingly, the appeal is allowed.
"Dolores M. Hansen"
J.F.C.C.
Ottawa, Ontario
January 17, 2001
__________________
1.Re Chan [1997] F.C.J. No. 1457 , Court File No. T-1981-96; Canada (Minister of Citizenship and Immigration) v. Luk [1998] F.C.J. No. 1661, Court File No. T-2449-97; Canada (Minister of Citizenship and Immigration) v. Yeung [1999] F.C.J. No. 615, Court File No. T-1256-98; Canada (Minister of Citizenship and Immigration) v. Wong [1999] F.C.J. No. 620, Court File No. T-1011-98; Re Chung [1997] F.C.J. No. 732, Court File No. T-1912-96; Re Hsu [1998], F.C.J. No. 1660, Court File No. T-2045-97; Re Wong [1998] F.C.J. No. 1, Court File No. T-2594-96; Re Cheung [1990] F.C.J. No. 11, Action No. T-691-89; Re Khoury [1995] F.C.J. No. 1518, Court File No. T-2502-94.