Date: 19990618
Docket: T-1248-98
BETWEEN:
| 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 - |
| MAN SHAN HUI, |
Respondent.
REASONS FOR JUDGMENT
TEITELBAUM J.
[1] On June 18, 1998, the Appellant filed into the Federal Court of Canada Registry a Notice of Application (appeal under subsection 14(5) of the Citizenship Act (the "Act")) requesting that the decision of Citizenship Court Judge Ford, dated May 4, 1998 be set aside and that the Court give the decision that the Citizenship Judge should have given, that is, not approving the application for citizenship of Man Shan Hui.
[2] The ground for the present application, as stated in the Notice of Application, is
| [t]hat Citizenship Judge Ford failed to have regard to the residence requirements of paragraph 5(1)(c) of the Citizenship Act, which requires that an applicant for citizenship accumulate at least three (3) years of residence in Canada within the four (4) years immediately preceding the date of application for citizenship. |
[3] The decision of the Citizenship Judge states
| [s]he (the respondent) has been absent to pursue her university education which she began before her family immigrated. She has no other permanent residence. Her family is established in Burnaby, B.C.". |
[4] It is apparent that the Citizenship Judge decided that the Respondent had met the residency requirements of paragraph 5(1)(c) of the Act despite the fact that the Respondent had been physically present in Canada for 231 days in the four years immediately preceding the date of her application for citizenship.
[5] As is stated by the Appellant, in paragraph 4 of her Memorandum of Fact and Law, the following is the evidence that was before Citizenship Judge Ford when she gave her decision of May 4, 1998.
| (a) The Respondent, a citizen of Hong Kong, was born in Hong Kong on September 10, 1974; |
| (b) The Respondent acquired permanent residence status in Canada on September 22, 1993; |
| (c) On January 27, 1997, the Respondent completed an adult application for Canadian citizenship which was received by the Citizenship Case Processing Centre ("C.P.C.") in Sydney, Nova Scotia, on March 3, 1997; |
| (d) According to the information provided by the Respondent, she was only physically present in Canada during the relevant period for a total of 231 days preceding her application for Canadian citizenship. The Respondent's absences from Canada during the relevant period were as follows: |
| - September 30, 1993 - December 12, 1993 Australia/School |
| - January 8, 1994 - July 24, 1994 Australia/School |
| - January 28, 1995 - January 9, 1997 Australia/School |
| (e) In support of her application for Canadian citizenship, the Respondent completed a Residence Questionnaire on April 4, 1998. In addition, she submitted various other documents, including her: |
| " Record of Landing; |
| " passport; |
| " photocopies of her Social Insurance card, Vancouver Public Library card, Royal Bank card, Royal Bank book, Driver's Licence; |
| " photocopies of her academic transcript, photocopies of various utility bills, photocopies of refusal letters from BCIT and Simon Fraser University. |
Issue
[6] Has the Respondent satisfied the requirement of paragraph 5(1)(c) of the Act that she accumulated at least three years of residence in Canada within four years immediately preceding the date of her application for Canadian citizenship?
Appellant's Submission
[7] Paragraph 5(1)(c) of the Act states
| 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: ...". |
[8] We are only concerned with subparagraph 5(1)(c). The appellant states that while the word "residence" is not defined in subsection 2(1) of the Act, it is submitted that because Parliament has allowed a one year absence during the relevant four year period, a substantial presence in Canada during the other three years is mandatory.
[9] The Appellant also submits that since the Respondent has only been physically in Canada for 231 days during the relevant four year period, she was unable to have established an extended physical and substantial presence in Canada as was required by Mr. Justice Thurlow in the case of Re Papadogorgakis, [1978] 2 F.C. 208.
[10] The Respondent submits that she immigrated to Canada with her family on September 22, 1993 and lived at 7964 Sussex Avenue in Burnaby. Her only absences from Canada have been to attend university studies in Australia where she was enrolled and attending university when she and her family immigrated to Canada. The Respondent submits that she resided in Vancouver in her parents' home during her holidays from school.
Discussion
[11] In the case of Re Pourghasemi (1993), 19 Imm.L.R. (2d) 259 at 260-61, Mr. Justice Muldoon in speaking of the purpose of the residency requirement states
| [i]t 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"... So those who 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. |
[12] I am in full agreement with the sentiments as stated by Mr. Justice Muldoon.
[13] In the case at bar, the Respondent became a permanent resident on September 22, 1993 when she immigrated to Canada with her family (mother and father). Just eight days later she left for Australia to continue with her studies. She returned to Canada on December 20, 1993, I assume for the Christmas holiday and remained in Canada to January 8, 1994. She then left to go back to school on January 8, 1994 and returned to Canada on July 24, 1994. She remained in Canada to January 28, 1995 when she again left to return to Australia to continue with her studies. She got her degree in December 1996. She returned to Canada on January 9, 1997, some two years after her last departure from Canada in January 1997.
[14] As I have said, I agree with what Mr. Justice Muldoon had to say in Re Pourghasemi (supra). The amount of time spent by the Respondent in Canada during the relevant period, 231 days, satisfies me that she was unable to become "Canadianized".
[15] It is clear from the decision in Papadogorgakis (supra) that one need not always be physically in Canada to establish residence pursuant to the Act. Nevertheless, to establish residence, according to Mr. Justice Thurlow, the person applying for citizenship must have established an extended physical and substantial presence in Canada.
[16] Surely it cannot be concluded that the Respondent had established, in any manner, an extended physical and substantial presence in Canada.
[17] The Respondent failed to return for her holidays from January 1995 to 1997.
[18] I am satisfied that the Citizenship Judge erred in law when she found the Respondent to have satisfied the residency requirements of the Act.
[19] The present appeal is allowed. The decision of the Citizenship Judge dated May 4, 1998 is set aside. The application of the Respondent for citizenship is denied.
(Sgd.) "Max M. Teitelbaum"
Judge
Vancouver, British Columbia
18 June 1999
[20] FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-1248-98
DATE HEARING: June 17, 1999
STYLE OF CAUSE: Re Man Shan Hui
PLACE OF HEARING: Vancouver, British Columbia
REASONS FOR ORDER OF TEITELBAUM J.
dated June 18, 1999
APPEARANCES:
| Ms. Brenda Carbonell for the Appellant |
Mr. James Henshall for the Respondent
| Ms. J. Fisher amicus curiae |
SOLICITORS OF RECORD:
| Mr. Morris Rosenberg for the Appellant |
Deputy Attorney General
of Canada
| Mr. James Henshall for the Respondent |
Vancouver, BC
Ms. Julie Fisher amicus curiae
Watson, Goepel, Maledy
Vancouver, BC