Date: 20000606
Docket: T-1338-99
Between :
OI HUNG VERA HUI
Appellant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent
REASONS FOR JUDGMENT
PINARD, J. :
[1] This is an appeal under subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29, (the Act) of a decision rendered by Citizenship Judge H. Peter Oberlander on May 25, 1999, rejecting the appellant's application for Canadian citizenship.
[2] The appellant was born in Hong Kong on October 13, 1974. In the spring of 1994, she was accepted at the University of California, where she had applied in order to be near her ailing father and assist with his care. Her father died on May 15, 1994. In September 1995, the appellant resumed her studies in California where she had already completed one year at the University.
[3] The relevant paragraphs of the Citizenship Judge's decision read as follows:
| According to all filed documents and further information presented to me at your hearing, your absences from Canada total 965 days in the four years preceding your application. In these circumstances, you had to satisfy me, that your absences from Canada could be counted as a period of residence in Canada. |
| Until the date of your citizenship application on August 20, 1998 you were absent for approximately 965 days and present for only 194 leaving you 901 short of the required 1095 days. A full review of your case has led me to conclude that your substantive absences from Canada cannot be counted as periods of residence under the act. |
| 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. |
[4] The residency requirements of paragraph 5(1)(c) of the Act are the following:
| 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:
|
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:
|
[5] My colleague, Mr. Justice Muldoon, in Re Pourghasemi (1993), 19 Imm.L.R. (2d) 259 at 260 sets out the underlying objectives of this provision of the Act:
| . . . 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. One can observe Canadian society for all its virtues, decadence, values, dangers and freedoms, just as it is. That is little enough time in which to become Canadianized. 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. If the criterion be applied to some citizenship candidates, it ought to apply to all. So, indeed, it was applied by Madam Justice Reed in Re Koo, T-20-92, on December 3, 1992 [reported (1992), 59 F.T.R. 27, 19 Imm.L.R. (2d) 1], in different factual circumstances, of course. |
(See also Re Afandi (November 6, 1998), T-2476-97 (F.C.T.D.); M.C.I. v. Kam Biu Ho (November 24, 1998), T-19-98 (F.C.T.D.); M.C.I. v. Chen Dai (January 6, 1999), T-996-98 (F.C.T.D.), M.C.I. v. Chung Shun Paul Ho (March 1, 1999), T-1683-96 (F.C.T.D.); M.C.I. v. Fai Sophia Lam (April 28, 1999), T-1524-98 (F.C.T.D.) and M.C.I. v. Su-Chen Chiu (June 9, 1999), T-1892-98 (F.C.T.D.).)
[6] This Court has held 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 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] Therefore, given the substantial absences of the appellant from Canada in the present case (she was present in Canada for only 194 days leaving her short of the required 1,095 by 901 days), I find that the Citizenship Judge correctly applied paragraph 5(1)(c) of the Act when he concluded that the appellant did not meet the residency requirements.
[8] Consequently, the appeal is dismissed.
JUDGE
OTTAWA, ONTARIO
June 6, 2000