Date: 19990706
Docket: T-1435-98
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
WAN LAU
Respondent
REASONS FOR JUDGMENT
MacKAY J.
[1] The applicant Minister appeals from the decision of a Citizenship Judge dated May 21, 1998, wherein the judge approved the respondent's application for Canadian citizenship. It is urged that the judge erred in that the respondent did not meet the residence requirements set out under paragraph 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29, as amended (the "Act").
[2] Under the Act paragraph 5(1)(c) requires that an applicant for citizenship be resident in Canada for three of the four years immediately preceding the date of application. That means that the applicant shall have been resident in Canada for 1095 days in the four years before applying for citizenship.
[3] In this case the applicant, a native of Hong Kong now 74 years of age, arrived in Canada on November 28, 1992 when she was landed and became a permanent resident. Thereafter, she remained in Canada, except for a number of extended visits to Hong Kong where she cared for and assisted members of her family, both her children and an elderly sister. She was away from Canada for these purposes from November 25, 1993 to May 22, 1994, again from November 27, 1994 to April 24, 1995, again from November 22, 1995 to May 12, 1996 and from August 28, 1996 until the date of her application for citizenship on May 24, 1997. Thus, since her arrival in Canada she was absent for 766 days, and 694 of those were within the four years immediately preceding her application for citizenship.
[4] In his decision the Citizenship Judge commented:
| AT THE HEARING HELD BEFORE ME ON 98/04/22 I FOUND THAT THE APPLICANT MET ALL THE REQUIREMENTS FOR CITIZENSHIP SET OUT IN THE CITIZENSHIP ACT WITH THE POSSIBLE EXCEPTION OF RESIDENCE |
| THE APPLICANT HAS A SHORTAGE OF 401 DAYS WITH RESPECT TO MEETING THE MINIMUM REQUIREMENT OF THREE YEARS RESIDENCE IN CANADA REQUIRED IN THE ACT, RESULTING FROM TEMPORARY ABSENCES FROM CANADA DURING THE FOUR YEARS PRIOR TO MAKING APPLICATION |
| AFTER CONSIDERING THE RESIDENCE QUESTIONAIRE AND OTHER ITEMS AND DOCUMENTATION SUBMITTED AND THROUGH CREDIBLE DECLARTATION (sic) OF INTENT AND THE FACTS PRESENTED BY THE APPLICANT AT THE HEARING I HAVE CONCLUDED THAT THE APPLICANT HAS ESTABLISHED A RESIDENTIAL BASE AT ... |
| AND A CENTRALIZED MODE OF LIVING IN CANADA ON 92/11/28 |
| AND THE APPLICANT HAS CONTINUED TO MAINTAIN A RESIDENTIAL BASE AND A CENTRALIZED MODE OF LIVING IN CANADA AND THAT DURING SUCH TEMPORARY ABSENCES THE APPLICANT HAD NO INTENTION OF RESIDING IN ANY COUNTRY OTHER THAN CANADA |
| DECISION |
| I HAVE DECIDED THAT THE APPLICANT WAN LAU FULLY MEETS THE RESIDENCE REQUIREMENT OF SECTION 5(1) (C) OF THE ACT AND WITHIN THE FRAMEWORK OUTLINED BY ASSOCIATE CHIEF JUSTICE THURLOW (*AS HE THEN WAS) IN RE: PAPADOGIORGAKIS, NO, T-872-78, |
| I HAVE THEREFORE APPROVED THIS APPLICATION |
[5] After hearing from counsel for the Minister and hearing from the respondent, who represented herself and was assisted by members of her family, it is my opinion that the Citizenship Judge erred in law. While relying upon the decision of Mr. Justice Thurlow, then Associate Chief Justice of this Court, in Re Papadogiorgakis, [1978] 2 F.C. 208 (F.C.T.D.), it is my respectful submission that the Citizenship Judge did not properly apply the principle of that decision. It recognizes that one does not have to be physically present in Canada in order to maintain residence once that has been established. While the Citizenship Judge's decision refers to that requirement it errs in its application in finding that Ms. Lau had established a residential base in Canada and centralized her mode of living here on November 28, 1992. That was in fact the date of her arrival and landing as a permanent resident in Canada. Mere arrival and attainment of the status of a permanent resident does not constitute residence for purposes of the Citizenship Act. There must be additional evidence supporting the establishment of residence. In my opinion, there is not evidence on the record that residence was established in Canada before the respondent left on her first visit to Hong Kong about one year after arriving here. Nor in my opinion is there evidence that it was established thereafter. While the Citizenship Judge's decision refers to a residence questionnaire I find none in the record of the Court and only find the corrected record of absences from Canada listed within the application for citizenship. There is not documentary evidence in the record to find that she established residence in Canada. In the absence of evidence supporting the establishment of residence Ms. Lau cannot be considered to have been a resident of Canada for the periods that she was outside the country.
[6] Since, in my opinion, with respect, I find that the Citizenship Judge erred in application of the law, the Minister's appeal is allowed and the decision of the Citizenship Judge is set aside.
[7] I note that this decision has no effect upon Ms. Lau's status as a permanent resident of Canada. That status permits her to remain and to travel from and return to this country, assuming she has travel documents available. Nor does it affect her opportunity to apply again for citizenship when that course seems to be appropriate, as I hope she may do.
JUDGE
OTTAWA, Ontario
July 6, 1999.