Date: 20010620
Docket: T-1570-99
Neutral Citation: 2001 FCT 679
BETWEEN:
PEI - hsun KUO A.K.A.
EDDY PEI - HSUN KUO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
HANSEN J.
Introduction
[1] This is an appeal under subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 and section 21 of the Federal Court Act, R.S.C. 1985, c. F-7 brought by the applicant from a decision of a Citizenship Judge, dated July 8, 1999 wherein the Citizenship Judge did not approve the applicant's application for a grant of citizenship under subsection 5(1) of the Citizenship Act.
Background
[2] The applicant arrived in Canada on September 10, 1992, as a 14 year old and was granted permanent residence on March 18, 1995. He attended Lakefield College for his five years of high school. Upon his graduation from Lakefield College, he was accepted at Queen's University to study electrical engineering. During his first year at Queen's University he lived in residence, but now he rents an apartment in Kingston, Ontario.
[3] During his time as a student, he returned regularly to Taiwan during school vacations to visit his family, and on one occasion, he visited his sister in New Zealand. He also took a course outside Canada one summer. Although he has not been employed in Canada, he has worked while in Taiwan.
[4] The applicant applied for Canadian citizenship on October 14, 1997.
[5] The Citizenship Judge refused his application since he did not meet the requirements of paragraph 5(1)(c) of the Citizenship Act, stating "During the period relevant to your residency you have been present in Canada for 857 days and absent 344 days." The Citizenship Judge found that physical presence was required to meet the statutory minimum residency requirement, and the applicant had not been physically present in Canada for the required 1095 out of the 1460 days preceding the application for citizenship. The Citizenship Judge, in reaching her decision, also considered whether the applicant had centralized his mode of living in Canada.
[6] The applicant submits the Citizenship Judge erred in the calculation of the length of his residency in Canada. Despite his physical absences from Canada, the applicant argues he should have been credited one-half day for each day he was resident in Canada during the relevant period prior to obtaining permanent resident status and one day for each day he was resident in Canada from the time he became a permanent resident to the date of his application for citizenship.
[7] In Lam v. Canada (The Minister of Citizenship and Immigration), [1999] F.C.J. No. 410 (F.C.T.D.) at paragraph 33, Lutfy J. (as he then was) stated the standard of review on an appeal from a Citizenship Judge as follows:
Justice and fairness, both for the citizenship applicants and the Minister, require some continuity with respect to the standard of review while the current Act is still in force and despite the end of the de novo trials. The appropriate standard, in these circumstances, is one close to the correctness end of the spectrum. However, where citizenship judges, in clear reasons which demonstrate an understanding of the case law, properly decide that the facts satisfy their view of the statutory test in paragraph 5(1)(c), the reviewing judges ought not to substitute arbitrarily their different opinion of the residency requirement. __It is to this extent that some deference is owed to the special knowledge and experience of the citizenship judge during this period of transition.
[8] The relevant provisions of subsection 5(1)of the Citizenship Act state:
| 5. (1) The Minister shall grant citizenship to any person who (a) makes application for citizenship; (b) is eighteen years of age or over;(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: (i) for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and (ii) for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence; |
5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois_: a) en fait la demande; b) est âgée d'au moins dix-huit ans; 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_: (i) un demi-jour pour chaque jour de résidence au Canada avant son admission à titre de résident permanent, (ii) un jour pour chaque jour de résidence au Canada après son admission à titre de résident permanent; |
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[9] In arriving at her calculation of the number of days the applicant had been resident in Canada, the Citizenship Judge interpreted the provisions of subsection 5(1) as requiring physical presence in Canada. She credited the applicant with the number of days of physical presence in Canada prior to and after his having obtained permanent resident status in accordance with subsection 5(1). Based on this calculation, she determined the applicant was short 238 days of the statutory residence requirement. As the Citizenship Judge's interpretation of residence is consistent with decisions of the Court for the purposes of subsection 5(1) physical presence is necessary to meet the statutory requirement (see for example Re Pourghasemi, [1993] F.C.J. No. 232 the Citizenship Judge did not err in this regard.
[10] The Citizenship Judge, as noted earlier, also considered whether the applicant had centralized his mode of living in Canada. She specifically addressed the questions posed by Reed J. in Re Koo, [1993] 1 F.C. 286 (F.C.T.D.) noting the pattern of his physical presence, his family's residency, the extent of his physical absences, and the quality of his connection to Canada, amongst other things, and concluded: "In the period under consideration, on the balance, I find that you have connections with Canada for the purpose of your formal education, but your priority of residence has remained with your family in Taiwan." In this analysis, the Citizenship Judge took into account all of the relevant considerations and did not err.
[11] In my view, the fact that the Citizenship Judge considered two different approaches regarding the question of residency, in this instance, does not reflect any misinterpretation of the relevant jurisprudence. She referred to the two different approaches in an effort to indicate to the applicant that regardless of which approach was used, he did not qualify.
[12] For these reasons, the appeal is dismissed.
"Dolores M. Hansen"
J.F.C.C.
OTTAWA, ONTARIO
June 20 , 2001