Date: 20000316
Docket: T-1331-97
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
- and -
KIN YEE LIU
Respondent
REASONS
GIBSON J.:
[1] These reasons arise out of an appeal of a decision of Citizenship Judge W. A. Borosa, dated the 21st of April, 1997, wherein the learned Judge approved the application of the respondent for a grant of citizenship under subsection 5(1) of the Citizenship Act1. The appeal was instituted before the coming into force of the Federal Court Rules, 19982 and thus was by way of trial de novo.
[2] The sole issue on the appeal was whether or not the learned Citizenship Court Judge erred in determining that, within the meaning of paragraph 5(1)(c) of the Citizenship Act, the respondent met the minimum requirement of three years of residence in Canada, calculated in accordance with that paragraph, notwithstanding that he was 932 days short in terms of the number of days that he was physically present in Canada in the relevant period. It was not in dispute before me that the reason for the respondent"s shortfall in terms of physical presence in Canada was his absence from Canada in the conduct of a business that he and one of his sons had established in Canada.
[3] At the opening of the hearing of the appeal, counsel for the respondent urged that I should hear evidence regarding the presence of the respondent in Canada after the relevant period for the purposes of paragraph 5(1)(c) of the Citizenship Act since the business that the respondent and his son had established had failed. The result of the failure apparently was that the respondent"s presence in Canada dramatically increased following the relevant period because he was no longer required to be absent from Canada in the course of the conduct of the business. In support of his submission, counsel cited Wang v. The Minister of Citizenship and Immigration3.
[4] I declined to accept the urgings of counsel for the respondent and provided oral reasons which proved to be dispositive of the appeal. An edited version of the oral reasons is reproduced here to comply with section 51 of the Federal Court Act4:
| In paragraph 10 of her decision in Wang, Madame Justice Reed wrote: |
| If events subsequent to a person"s application for citizenship cast light on the quality of the person"s connection with Canada at the earlier time, then, those events are relevant to the citizenship judge"s evaluation, and the citizenship judge cannot be faulted for taking them into account ... |
| There are two elements within the foregoing statement by Madame Justice Reed that I wish to emphasize: the first is the reference to the quality of the person"s connection with Canada at the earlier time, which is, of course, a reference to the four-year period that is relevant for the purposes of paragraph 5(1)(c ) of the Citizenship Act; and the second is the reference to the "citizenship judge"s evaluation". Neither element is present here. |
| For the purposes of paragraph 5(1)(c) of the Citizenship Act, two aspects of the quality of an individual"s connection with Canada during the relevant period are of importance: first, whether the individual has established residency in Canada; and second, if residency has been established, whether that residency is maintained. |
| I am satisfied that, while events subsequent to the relevant period can go to the question of maintenance of residency, they cannot go to the question of establishment of residency during the relevant period. Quite apart from the fact that I am not the Citizenship Judge in this matter and therefore it is not the Citizenship Judge"s evaluation that is in issue on a trial de novo , equally, I am satisfied, based on the record before me, that the respondent simply never established residency in Canada before he commenced his regular pattern of long absences from Canada for purposes of business. He never established residency that he was capable of maintaining. |
| I have a second concern in relation to adoption of the course proposed by counsel for the respondent. Clearly, the scheme of the Citizenship Act is this: eligibility for citizenship is first determined by a Citizenship Court Judge and thereafter, this Court, on an application such as this, can provide a second evaluation de novo. I am satisfied that within that scheme, it is not appropriate for this Court to substitute itself for the Court of first instance, except as to a reevaluation of the facts that were before the Citizenship Court Judge. Counsel for the respondent has invited me to substitute myself for the judge of first instance, not simply in the evaluation of the facts that were before that judge but further by consideration of facts that were not before that judge and could not have been before him. |
[5] Following my decision to decline consideration of new facts from the post-relevant period, the Court was briefly recessed. Following the recess, counsel for the respondent indicated to the Court that his client had withdrawn his application for citizenship giving raise to the appeal before me with the result that the appeal was moot.
[6] Counsel for the appellant indicated that she was in agreement that the appeal was made moot by the withdrawal of the application for citizenship and, in the result, undertook to file a discontinuance of the appeal.
[7] Thus, the appeal before me was terminated without a decision as to the merits of the appeal. No order issued.
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J.F.C.C.
Ottawa, Ontario
March 16, 2000
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