Date: 19990804
Docket: T-2365-98
Ottawa, Ontario, this 4th day of August, 1999
PRESENT: THE HONOURABLE MR. JUSTICE DENAULT
BETWEEN :
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
REN MIN LIU
Respondent
REASONS FOR ORDER and ORDER
[1] This is an appeal according to subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 (the "Act"), brought on behalf of the Minister of Citizenship and Immigration with respect to a decision of a Citizenship judge dated October 27, 1998 which concluded that the respondent fulfilled the criteria to be granted Canadian citizenship.
[2] The respondent was born on July 7, 1930, in China. He came to Canada as a landed immigrant on August 25, 1994, and applied for the Canadian citizenship scarcely three years and four months later, on December 22, 1997. During that period of time, the respondent was absent from Canada for three long respective stays of 168, 277 and 170 days, for a total of 615 days. At the time of his application for citizenship, the respondent had physically spent 600 days in Canada.
[3] Before rendering her decision with respect to the residency requirement, the Citizenship judge filled in a form entitled "Reasons for decision regarding residence" where she addressed some of the questions set out by my colleague Reed in Re Koo , [1993] 1 F.C. 286. It appears from her reasons that the respondent's application was granted mainly on the grounds that his wife, children, and grandchildren were all Canadian citizens living in this country and that his absences were due to medical reasons. Insofar as the Citizenship judge did not comment on the respondent's pattern of physical presence in Canada nor on the quality of his connection with this country, it must be considered that these factors were not taken into consideration.
[4] The applicant submits that since the respondent has not accumulated at least three years of residence in Canada in the four year period immediately preceding the date of his application as required by paragraph 5(1)(c) of the Act, the respondent's application for citizenship ought to be dismissed.
[5] As I explained at the end of the hearing, under the circumstances of this case, the court's intervention is warranted.
[6] First, by filing his application for citizenship merely three years and four months after his arrival in Canada, the respondent could hardly meet the requirement of paragraph 5(1)(c) of the Citizenship Act. In that sense, his application was premature since he could hardly meet the test of having resided in Canada for 1,095 days in the 1,460 days preceding his application. Second, by going to China for treatment of his medical condition (heart disease and high blood pressure), the respondent exercised a personal choice and a preference to be treated by his Chinese doctor. There is no evidence in the file that it was necessary for the respondent to leave Canada for a specialized treatment (Re Fung T-2577-95, February 28, 1997 (F.C.)). Third, there is no evidence that the respondent, having left for his first trip to China only four and one-half months after his arrival in Canada, had in mind and in fact settled into or centralized his ordinary mode of living in Canada.
[7] I have no doubt that the respondent will eventually become a good Canadian citizen. But at this stage, I can only conclude that the respondent does not meet the requirements of the Citizenship Act with respect to the residency factor.
O R D E R
This appeal is granted and the decision of the Citizenship judge Gordana Caricevic Rakovich, dated October 27, 1998, is set aside.
"Pierre Denault"
Judge