Date: 20001121
Docket: T-324-00
BETWEEN:
WEN HSU TSENG
Appellant
-and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
NADON, J.
[1] This is an appeal by Wen Hsu Tseng, the appellant, from a decision of Judge Marguerite Ford dated January 13, 2000 which refused to approve his application for citizenship.
[2] The appellant, born on July 14, 1953, is a citizen of Taiwan. He was landed in Canada on February 10, 1996 and applied for citizenship on March 2, 1999.
[3] Between February 27, 1996 and October 24, 1998 the appellant was absent from Canada for a period of 839 days, leaving him well short of the number of days required under the residency requirements of section 5(1)(c) of the Citizenship Act, which reads as follows:
| 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; |
[4] Specifically, the appellant is short approximately 800 days. The Citizenship Judge, after having reviewed the relevant facts and made reference to decisions of this Court, arrived at the following conclusion:
| I have considered and decided against making an affirmative recommendation under Subsection 5(3) or 5(4) of the Act, especially since there was no evidence of any health disability, or any special or unusual hardship, or services of an exceptional value to Canada. |
| Although you have provided evidence of a connection to Canada, you have been absent much more that you were present and I do not feel that you have spent sufficient time in Canada to conform to the requirements of the Act. When you are able to spend more time here, you will make an excellent citizen, but for the present, I consider your application premature. |
Pursuant to subsection 14(3) of the Citizenship Act, you are therefore, advised that, for the above reasons, your application for citizenship is not approved.
[5] In my view, the Citizenship Judge did not err in reaching the above conclusion. In so concluding, I find support in the decision of my colleague Mr. Justice Muldoon in Re Pourghasemi (1993), 19 Imm.L.R. (2d) 259 at 260-261 where he explained the purpose of the residency requirements under section 5(1)(c) of the Citizenship Act as follows:
In drawing a purposive interpretation of the statutory language it should be asked: Why did Parliament prescribe at lease 3 years of Canadian residence in the 4 years immediately before applying for citizenship?
It is very clear that the purpose of para. 5(1)(c) is to insure 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...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. ...
(emphasis added)
...The statute does not direct the court to evince sentimentality in order to evade, or to defy the statutory requirement for residence. Perhaps because of misunderstanding of this Court's previous jurisprudence, applicants seem to be advised to keep Canadian bank accounts, magazine subscriptions, medicare cards, lodgings, furniture, other property and good intentions to meet the statutory criterion, in a word, everything except really residing among Canadians in Canada for three out of the previous four years, as Parliament prescribes. One may ask so what if the would be citizen be away at school or university? What is the urgency? If the candidate cannot find an adequate school or university in Canada, let him or her study abroad and then come back to Canada in order to comply with the residence requirement....
...So those who would throw in their lot with Canadians by becoming citizens must first throw in their lot with Canadians by residing among Canadians, in Canada, during three of the preceding four years, in order to Canadianize themselves. It is not something one can do while abroad, for Canadian life and society exist only in Canada and nowhere else.(emphasis added)
[6] I also find support in Mr. Justice Pinard's decision in Re Ching Pin Lin (Docket T-2803-97 rendered January 16, 1999) where at page 3 of his reasons, Mr. Justice Pinard states:
| Assuming that a proper interpretation of paragraph 5(1)(c) of the Act does not require physical presence in Canada for the entire 1,095 days of residence prescribed therein when there are special and exceptional circumstances, I consider, however, that actual presence in Canada remains the most relevant and crucial factor to be taken into account for establishing whether or not a person was "resident" in Canada within the meaning of the provision. As I have stated on many occasions, too long of an absence from Canada, albeit a temporary one, during that minimum period of time, 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. |
[7] In the present matter, how can it be said that the appellant meets the residency requirements of the Citizenship Act considering that he spent practically no time in Canada during the 3 years preceding his citizenship application? In Re Kam Biu Ho (Docket T-19-98 rendered November 24, 1998) at page 2 of my reasons I said the following:
| Secondly, I agree entirely with the reasons given by Muldoon, J. in Re Chan, a decision rendered on February 3, 1998 in file T-804-97. In that matter the appellant was seeking to obtain a reversal of a citizenship judge's decision that he did not meet the residence requirements of the Act. The appellant had been absent from Canada, during the relevant period, for 954 days. Mr. Justice Muldoon concluded that s. 5(1)(c) of the Act clearly meant what is said, i.e. that an applicant had to physically reside in Canada for 3 of the 4 years preceding the citizenship application. |
[8] For these reasons, this appeal is dismissed.
(Sgd.) "Marc Nadon"
Judge
VANCOUVER, British Columbia
November 21, 2000
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| DOCKET: T-324-00 |
| STYLE OF CAUSE: Wen Hsu Tseng |
v.
MCI
| PLACE OF HEARING: Vancouver, British Columbia |
| DATE OF HEARING: November 17, 2000 |
| REASONS FOR ORDER AND ORDER OF NADON, J. |
| DATED: November 21, 2000 |
APPEARANCES:
| Mr. K. Jang For the Applicant |
| Ms. Mandana Namazi For the Respondent |
SOLICITORS OF RECORD:
Jang, Cheung, Lee
Barristers and Solicitors
| Vancouver, BC For the Applicant |
Morris Rosenberg
Deputy Attorney
| General of Canada For the Respondent |