Date: 19980610
Docket: T-2841-96
IN THE MATTER OF THECITIZENSHIP 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,
CHI HUNG PAUL CHEUNG
Respondent.
REASONS FOR JUDGMENT
NADON, J.:
[1] This is an appeal by the Minister of Citizenship and Immigration (the "Minister") pursuant to subsection 14(5) of the Citizenship Act (the "Act"). The Minister appeals from a decision of Judge W. A. Borosa, a Citizenship Judge, rendered on October 25, 1996 wherein Judge Borosa approved the respondent's application for a grant of citizenship.
[2] The only issue in this appeal is whether the respondent met the residence requirements of paragraph 5(1)(c) of the Act when he applied for Canadian citizenship on February 29, 1996.
[3] Paragraph 5(1)(c) of the Act provides that a person, in the four years preceding his or her application for citizenship in Canada, must accumulate at least three years of residence in Canada.
[4] The respondent, a British citizen of Hong Kong, acquired landed immigration status on September 28, 1992 when he arrived in Canada with his wife and three children. During the three years preceding his citizenship application, the respondent spent only 366 days in Canada. Thus, he is short by 729 days most of which were spent in Hong Kong. Between September 28, 1992 and February 29, 1996, the respondent was outside of the country for 883 days.
[5] Paragraph 5(1)(c) of the Act makes it clear that a person must be resident in Canada for at least three years prior to his application for citizenship. As the concept of "residence" is not defined under section 2(1) of the Act, it has given rise to considerable debate in this Court. In Re Papadogiorgakis [1978] 2 F.C. 208, Thurlow J. (as he then was) held that physical presence in Canada was not always required in order to establish residence within the meaning of the Act. At page 214 he put it as follows:
| A person with an established home of his own in which he lives does not cease to be resident there when he leaves it for a temporary purpose whether on business or vacation or event to pursue a course of study. The fact of his family remaining there while he is away may lend support for the conclusion that he has not ceased to reside there. The conclusion may be reached, as well, even though the absence may be more or less lengthy. It is also enhanced if he returns there frequently when the opportunity to do so arises. It is, as Rand J. appears to me to be saying in the passage I have read, "chiefly a matter of the degree to which a person in mind and fact settles into or maintains or centralizes his ordinary mode of living with its accessories in social relations, interests and conveniences at or in the place in question. |
[6] It is clear from Mr. Justice Thurlow's comments that before the days of absence of a person can be considered for the purposes of the residence requirements under the Act, that person must have established his or her home in this country before departing. In the present matter, there cannot be any doubt, in my view, that the respondent never established his home in Canada before he departed on his numerous trips to Hong Kong. What the evidence reveals is that the respondent simply moved his family from Hong Kong to Canada and then returned to Hong Kong to continue his business operations in that country. As the respondent never established his home in Canada he cannot, in my view, take advantage of the days physically spent outside of Canada to meet the requirements of paragraph 5(1)(c) of the Act.
[7] To construe paragraph 5(1)(c) of the Act otherwise would constitute a re-writing of the paragraph which Parliament has not authorized me to do. I agree entirely with the comments made by Pinard J. in Re Chow, January 6, 1997, T-26229-95, where he states:
| There is jurisprudence which does not require physical presence of the applicant for citizenship for the entire 1,095 days, when there are special or exceptional circumstances. However, in my view, too long an absence from Canada, albeit temporary, during that minimum period of time, as in the present case, is contrary to the purpose of the residency requirements of the Act. Indeed, the Act already allows a person who has been lawfully admitted to Canada for permanent residence no to reside in Canada during one of the four years preceding the date of that person's application for citizenship. |
[8] I need not go further in my analysis since it is clear that the respondent does not meet the residency requirements of the Act. For these reasons, this appeal shall be allowed.
[9] One final matter. On June 5, 1998 the Minister filed a notice of motion seeking a procedural order from this Court regarding the application of the new Federal Court Rules, 1998 (the "1998 Rules") to the present appeal. The Minister brought this motion by reason of the recent decision rendered by Rothstein J. on May 25, 1998 in MCI v. Fai Alex Chan T-2842-96. In Chan, Mr. Justice Rothstein made the following procedural order:
| This Citizenship appeal having been filed in this Court before the coming into force of the Federal Court Rules, 1998, the appeal should proceed by way of trial de novo. Part 5 of the Federal Court Rules, 1998 applies to Citizenship appeals filed in the Court after the coming into force of the new Rules. |
The Minister disagrees with the order made by Mr. Justice Rothstein and submits that by reason of Rule 501(1) of the 1998 Rules this appeal must be governed by the 1998 Rules. Thus, according to the Minister, the hearing of this appeal is no longer subject to former Rule 912 which provided that an appeal from a decision of a Citizenship Judge would take the form of a new hearing. Thus, the parties could introduce fresh evidence before this Court. Appeals under subsection 14(5) of the Act fall under Part 5 of the 1998 Rules. An appeal from the decision of a Citizenship Judge will now proceed by way of an application based on the record before the Citizenship Judge.
[10] At the end of the hearing, I indicated to counsel that the appeal would be allowed and that consequently I would not decide the procedural issue. I indicated to counsel that my decision to allow the appeal did not turn on the application of the old or new Rules of practice. I am satisfied that there was no evidence before the Citizenship Judge to allow him to conclude, as he did, that the respondent met the residence requirements of the Act.
"Marc Nadon"
Judge
Toronto, Ontario
June 10, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-2841-96
| STYLE OF CAUSE: 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,
| CHI HUNG PAUL CHEUNG, |
Respondent.
DATE OF HEARING: JUNE 9, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: NADON, J.
DATED: JUNE 10, 1998
APPEARANCES: Ms. Leena Jaakkimainen
For the Appellant
Mr. Max Chaudhary
For the Respondent
Mr. Peter K. Large
Amicus Curiae
SOLICITORS OF RECORD: George Thomson
Deputy Attorney General
of Canada
For the Appellant
Page 2
Chaudhary Law Offices
255 Duncan Mill Road
Suite 812
North York, Ontario
M3B 3H9
For the Respondent
Peter K. Large
610-372 Bay Street
Toronto, Ontario
M5H 2W9
Amicus Curiae
FEDERAL COURT OF CANADA
Date: 19980610
Docket: T-2841-96
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,
| CHI HUNG PAUL CHEUNG, |
Respondent
REASONS FOR JUDGMENT