T-894-96
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
HUNG CUONG HOANG,
Appellant.
REASONS FOR JUDGMENT
RICHARD, J.:
| This is an appeal from the decision of the Citizenship Judge dated March 6, 1996 wherein the Judge did not approve the appellant's application for a grant of Citizenship under subsection 5(1) of the Citizenship Act following a finding that the appellant did not comply with the requirement of residence under paragraph 5(1)(c) of the Act. |
| The Judge determined that the appellant was convicted on May 1, 1991 of theft under $1000.00 under the Criminal Code and received one year of probation from May 21, 1991 to May 21, 1992. The appellant was admitted to Canada for permanent residence on April 23, 1990 and has not left Canada since then. He applied for Canadian citizenship on February 4, 1994. The Judge ruled that the year of probation does not count as time in Canada for residence requirements. At the time the application was made, the appellant had not spent 1095 days in Canada, being short of two months of the required residence. It is for this reason that the Judge decided that the appellant did not meet the residence requirements of the Act. |
| The Judge also considered whether or not to make a recommendation for an exercise of discretion under subsections 5(3) and 5(4) of the Act. The Judge found that the appellant did not qualify under the criteria set down in either subsection. |
| The appellant has not contested his conviction under the Criminal Code and the resulting period of probation. |
| Subsection 21(a) of the Act states: |
| 21. Notwithstanding anything in this Act, no period may be counted as a period of residence for the purpose of this Act during which a person has been, pursuant to any enactment in force in Canada, |
| (a) under a probation order; |
| ... |
| This provision is mandatory. Section 21 precludes the time during which a person is under a probation order from being considered as residence. The decision of the Judge was based upon a correct interpretation of the residence requirements under the Act. At the hearing counsel for the appellant did not allege that the Judge made any error of law or of fact in reach |
| ing this decision. |
| The Judge also correctly interpreted subsections 5(3) and 5(4) of the Act. The Judge properly exercised the discretion reserved to a Citizenship Judge under section 15(1) of the Act. There are no grounds which would allow me to interfere with the exercise of that discretion. |
| At the hearing, the appellant testified that he has remained continuously in Canada. His counsel argued that, since he now meets the residency requirements, I should allow the appeal. Although an appeal from a Citizenship Judge is an appeal de novo, the appeal is based on the application for Canadian Citizenship before the Citizenship Judge. As of the date of that application the appellant did not meet the residency requirements of the Act. |
| The appellant was, and remains, free to make a further application at any time he considers that he satisfies the requirements of the Act. |
| Accordingly, the appeal is dismissed. |
| Judge |
| Ottawa, Ontario |
| September 10, 1997 |
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.:
T-894-96
STYLE OF CAUSE:
The Citizeship Act and Hung Cuong Hoang
PLACE OF HEARING:
Toronto, Ontario
DATE OF HEARING:
September 9, 1997
REASONS FOR JUDGMENT OF:
The Honourable Mr. Justice Richard
DATED:
September 10, 1997
APPEARANCES:
Mr. Calvin Huong
For the Appellant
Mr. Peter K. Large
Amicus Curiae
SOLICITORS OF RECORD:
Mr. Calvin Huong
Barrister and Solicitor
Toronto Ontario
For the Appellant
Mr. Peter K. Large
Barrister and Solicitor
Toronto, Ontartio
Amicus Curiae