Date: 19990127
Docket: T-1018-98
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Appellant,
- and -
CHEN XIA LAN,
Respondent.
REASONS FOR JUDGMENT
DUBÉ, J.
[1] This appeal from the Minister of Citizenship and Immigration (the "Minister") is from the decision of a Citizenship Judge dated March 18, 1998, approving the application of the Respondent for a grant of Canadian citizenship under subsection 5(1) of the Citizenship Act.
[2] The Respondent had been physically present in Canada for only 177 days and fell short of the minimum requirement of at least three years residence in Canada within the four years immediately preceding the date of her application for Canadian citizenship by 918 days.
[3] The Respondent, a citizen of Belize, born in China on January 20, 1964, came to Canada on June 29, 1991 to accompany her husband who was working towards a Canadian University degree. On September 1, 1992 she joined Liland International Enterprises Ltd. of Richmond, B.C. as a Project Assistant providing equipment to industries in China. In June 1994 she began consulting work for Newera Resources (Canada) Ltd. On October 17, 1994, she acquired permanent resident status in Canada.
[4] After graduating from the University of British Columbia with a masters degree, her husband worked for a company in Vancouver. The couple's daughter was born in Vancouver on July 15, 1992. Her husband is now the Vice-President of a Canadian business school in China which is a subsidiary of a Canadian publicly listed company. The couple has lived together since their marriage. They spent their first two and a half years living together in Canada while her husband was completing his masters degree. She followed him and their child when he returned to China to occupy his position as Vice-President. Her husband is now a Canadian citizen and during her own absences from Canada she has been issued returning resident permits.
[5] In her brief reasons for granting the Respondent her Canadian citizenship, the Citizenship Judge wrote as follows:
| Although she has been out of the country more days than she has been in, she does not have any other residence than Vancouver and her absences were to accompany her husband who is a Canadian citizen working abroad for a Canadian Company. They left China in 1989. Her husband has a masters degree from U.B.C. They lived in student housing and have a six year old daughter. His work will take him to China for the next year. He must travel in the meantime in order to earn a living. |
[6] Clearly, the Citizenship Judge gave the applicant the benefit of a liberal interpretation of the term "residence" under paragraph 5(1)(b) of the Citizenship Act, presumably following the seminal decision of the Associate Chief Justice Thurlow (as he then was) in Re: Papadogargakis. The learned Judge said in essence that the words "residence" and "resident" were not strictly limited to actual physical presence in Canada throughout the relevant period.
[7] Many decisions of this Court have followed that interpretation, especially with reference to students who went abroad to pursue their studies, or businessmen who have to travel overseas to earn their livelihood. The principle also applies to persons accompanying their spouse who have accepted temporary employment abroad. Of course there is always a proviso that the person in question has a clear intent to return to Canada and has maintained sufficient ties with this country to maintain their residence during their periods of absence.
[8] In this instance, it must be kept in mind that the Respondent is married to a Canadian citizen working temporarily abroad and has a daughter born in Canada who is a Canadian citizen. Another relevant factor is that the couple lived together in Canada for two and a half years before moving abroad. Finally, travelling with her Belize passport, she was admitted to China as a visitor and to Canada as a returning resident.
[9] Consequently, it cannot be said that the Citizenship Judge erred in law. She applied a liberal interpretation of the facts of this case.
[10] The appeal is denied.
(Sgd.) "J.E. Dubé"
J.F.C.C.
Vancouver, British Columbia
January 27, 1999
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-1018-98
STYLE OF CAUSE: MINISTER OF CITIZENSHIP AND
IMMIGRATION
v.
CHEN XIA LAN
PLACE OF HEARING: Vancouver, British Columbia
| DATE OF HEARING: January 26, 1999 |
REASONS FOR JUDGMENT OF DUBE, J.
dated January 27, 1999
APPEARANCES:
Ms. Brenda Carbonell for the Appellant
Mr. Lawrence Wong for the Respondent
SOLICITORS OF RECORD:
Morris Rosenberg for the Appellant
Deputy Attorney General
of Canada
| Lawrence Wong & Associates for the Respondent |
| Wong & Associates |
600 - 2695 Granville Street
Vancouver, B.C.
V6H 3H4