Federal Court Decisions

     Date: 19990428

     Docket: T-2786-97

     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 -

     SHYI CHING STEVE LEE

     Respondent.

     REASONS FOR JUDGMENT

PINARD, J. :

[1]      This is an appeal by the Minister of Citizenship and Immigration pursuant to subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29, (the Act) of the decision of Gordana Caricevic Rakovich, Citizenship Judge, rendered and communicated to the respondent by way of a letter dated November 17, 1997. The appellant maintains that the respondent had failed to accumulate the number of days of residency required by paragraph 5(1)(c) of the Act.

[2]      Considering that the respondent, who was not present, was duly served with a notice of the hearing, I allowed the appeal to proceed in his absence.

[3]      The respondent was born on February 6, 1933 and is a citizen of Taiwan. He arrived in Canada on January 17, 1990 with his son (his wife had arrived on September 4, 1989). The respondent applied for citizenship on October 16, 1996. The record shows that he indicated that as a businessman he had to travel between Canada and Taiwan and that explains his absences. He also indicates that he is 63 years old and missed his friends and relatives. He feared that they did not have much more time together and that motivated him to spend more time visiting them.

[4]      The evidence further shows that during the period of four years preceding his application for Canadian citizenship, the respondent was absent from Canada during 1,282 days. The respondent was therefore short by 917 days of the minimum requirement of 1,095 days (three out of four years' residence).

[5]      The residency requirements of paragraph 5(1)(c) of the Act are the following:

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.

[6]      My colleague Mr. Justice Muldoon, in Re Pourghasemi (1993), 19 Imm.L.R. (2d) 259 at 260 sets out the underlying objectives of this provision of the Act:

. . . 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". This happens by "rubbing elbows" with Canadians in shopping malls, corner stores, libraries, concert halls, auto repair shops, pubs, cabarets, elevators, churches, synagogues, mosques and temples - in a word wherever one can meet and converse with Canadians - during the prescribed three years. One can observe Canadian society for all its virtues, decadence, values, dangers and freedoms, just as it is. That is little enough time in which to become Canadianized. If a citizenship candidate misses that qualifying experience, then Canadian citizenship can be conferred, in effect, on a person who is still a foreigner in experience, social adaptation, and often in thought and outlook. If the criterion be applied to some citizenship candidates, it ought to apply to all. So, indeed, it was applied by Madam Justice Reed in Re Koo, T-20-92, on December 3, 1992 [reported (1992), 59 F.T.R. 27, 19 Imm.L.R. (2d) 1], in different factual circumstances, of course.

(See also Re Afandi (November 6, 1998), T-2476-97 (F.C.T.D.) and M.C.I. v. Kam Biu Ho (November 24, 1998), T-19-98 (F.C.T.D.).)

[7]      As I have stated on many occasions, too long of an absence from Canada, albeit a temporary one, during the minimum period of time of three years or 1,095 days, as in the present case, is contrary to the spirit of the Act which 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.

[8]      Therefore, given the prolonged absences of the respondent from Canada, I find that the Citizenship Judge's conclusion that the former met the residency requirements of the Act is totally unreasonable and that such conclusion is the result of an erroneous application of paragraph 5(1)(c) of the Act.

[9]      Consequently, the appeal is allowed and the decision of the Citizenship Judge, dated November 17, 1997, is quashed on the ground that at the time the respondent applied for Canadian citizenship, he did not meet the residency requirements of paragraph 5(1)(c) of the Act.

                            

                                     JUDGE

OTTAWA, ONTARIO

April 28, 1999