Date: 19990527
Docket: T-1069-98
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Applicant,
- and -
LUKE LIANG KUNG CHEN,
Respondent.
REASONS FOR ORDER
RICHARD A.C.J.
[1] This is an appeal under s. 14(5) of the Citizenship Act (the "Act") and s. 21 of the Federal Court Act, brought on behalf of the Minister of Citizenship and Immigration, from the decision of Citizenship Judge Marguerite Ford, dated April 22, 1998, wherein the Judge approved the application of the respondent for a grant of Canadian citizenship under s. 5(1) of the Act.
[2] By her decision of April 22, 1998, the Citizenship Judge decided that the respondent had met the residency requirement of s-s. 5(1)(c) of the Act, although the respondent had been physically present in Canada for only 386 days. In accordance with s-ss. 5(1)(c)(i) and (ii) of the Act, the respondent had a shortage of 709 days with respect to meeting the minimum requirement of at least three years residence in Canada within the four years immediately preceding the date of his application for Canadian citizenship.
[3] The following evidence was before the Citizenship Judge:
| (a) The respondent entered Canada as a landed immigrant on October 2, 1993; |
| (b) On July 26, 1997, the respondent completed an adult application for Canadian citizenship which was received by Citizenship Registration in Sydney, Nova Scotia on September 14, 1997; |
| (c) The Citizenship Application Review document that was before the Citizenship Judge indicated that the respondent had been credited with a total presence in Canada of 386 days prior to the application date. |
| (d) The respondent stated in his application that the reason for his absences was principally business-related as he was self-employed and hoping to build two-way trade between Canada and the Pacific Rim. However, the record shows the respondent's absences are described as resulting from a combination of business and personal reasons, including holidays, visiting parents, visiting his mother-in-law, and visiting a herbalist; |
[4] Paragraph 5(1)(c) of the Citizenship Act sets out three criteria that an applicant for Canadian citizenship must satisfy:
| (a) lawful admission to Canada as a permanent resident; |
| (b) retention of permanent residence status; and |
| (c) the accumulation of at least three years of residence in Canada, within the four years immediately preceding the date of the application, as calculated under the prescribed formula set out under the paragraph. |
The word "residence" is not specifically defined in subsection 2(1) of the Act.
[5] The existing jurisprudence clearly indicates that in an application for citizenship, an applicant must demonstrate, by objective facts: first, that he or she had initially established a residence of his or her own in Canada at least three years (1095 days) preceding his or her application for Canadian citizenship and, second, that he or she has maintained his or her established residence for the requisite period of time. A mere intention to establish residence is insufficient.
[6] The record indicates that the respondent was only present in Canada for 386 days during the 1095 days preceding his application for citizenship and had a shortage of 709 days with respect to meeting the three years residency requirement.
[7] His absences from Canada were for protracted periods of time, usually ranging from two to three months duration.
[8] In particular, the evidence discloses:
| i) There was no extended physical presence in Canada prior to the Respondent's extensive absences and the Respondent was only present in Canada for 14 days before his first extended absence; |
| ii) The absences are extensive: this is not a borderline case; and |
| iii) The absences cannot be characterized as temporary in nature. |
[9] The respondent's evidence was that he had obtained a British Columbia driver's licence in 1996, had opened bank accounts in Canada, and that he had obtained a social insurance card and medical coverage. As noted by Reed J. in Lok1, this type of indicia of residence is easy to acquire and in may cases says little about whether or not an established residence really exists.
[10] He also provided Canadian income tax records for 1995-1996, as well as property tax and utility payment receipts relating to the years 1995, 1996 and 1997.
[11] These indicia alone are not sufficient to establish the required connection to Canada to satisfy the legislated test of residency.
[12] The respondent has not demonstrated that he centralized or maintained his ordinary mode of living in Canada. The respondent has spent the bulk of the three years prior to his application for citizenship in Taiwan and Hong Kong.
[13] The respondent never established a residency in Canada before he departed on his many extended trips abroad.
[14] The reasons given by the Citizenship Judge for granting the application for citizenship are as follows:
| He has been absent on business for a Canadian company. He has provided evidence of permanent residence. |
[15] I have concluded that whether I adopt a strict or a liberal test for the determination of residency, that this respondent does not satisfy the requirements for residency and that his application for citizenship was premature.
[16] The Citizenship Judge erred in law in finding that the requirements of law had been met and in approving the respondent's application for citizenship.
[17] The appeal is allowed and the decision of the Citizenship Judge is set aside.
(Sgd.) "John D. Richard"
A.C.J.
Vancouver, British Columbia
27 May 1999
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-1069-98
STYLE OF CAUSE: MINISTER OF CITIZENSHIP AND
IMMIGRATION
v.
LUKE LIANG KUNG CHEN
PLACE OF HEARING: Vancouver, British Columbia
| DATE OF HEARING: May 25, 1999 |
REASONS FOR JUDGMENT OF RICHARD A.C.J.
dated May 27, 1999
APPEARANCES:
| Sandra Weafer for the Applicant |
| Luke Liang Kung Chen on his own behalf |
SOLICITORS OF RECORD:
| Morris Rosenberg for the Applicant |
Deputy Attorney General
of Canada
__________________
1 Minister of Citizenship and Immigration v. Lok (June 19, 1998), T-2843-96 at para. 15.