Date: 20050726
Docket: T-107-05
Citation: 2005 FC 1032
Ottawa, Ontario, this 26th day of July, 2005
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
and
YEONG SHUENN CHERN
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Yeong-Shuenn Chern arrived in Canada with his wife and child on April 2, 1999. He applied for Canadian citizenship on June 25, 2003 and a citizenship judge granted it to him.
[2] The Minister has appealed the citizenship judge's decision, alleging that she erred in her conclusion that Mr. Chern had met the residency requirement for citizenship according to s. 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29. I agree that the citizenship judge erred and, therefore, will allow this appeal.
I. Issue
1. Was the citizenship judge's conclusion that Mr. Chern had satisfied his residency requirement reasonable?
II. Analysis
[3] Mr. Chern is a pilot for EVA Air, which is based in Taiwan. His job often keeps him out of the country. According to the Citizenship Act, a person must be resident in Canada for at least three years during the four years prior to his or her application. In Mr. Chern's case, he was actually absent from Canada for at least 917 days between June 25, 1999 and the date of his application (June 25, 2003), which is the relevant time frame. Can Mr. Chern claim to have been resident in Canada for three years (1095 days) when he was physically present for only 543 days?
[4] The law allows some flexibility in applying the residency requirement, recognizing that a person who has firmly established his or her connection with Canada may still be considered a resident during periods of absence. Citizenship judges must consider a variety of factors and criteria in deciding whether a candidate has maintained his or her residence in Canada notwithstanding frequent absences: See, for example, Koo (Re), [1993] 1 F.C. 286 (T.D.); Woo v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1808 (T.D.) (QL).
[5] Here, the citizenship judge considered many of the relevant factors in concluding that Mr. Chern had been a resident in Canada for a sufficiently long period of time. However, she did not determine when Mr. Chern had actually established his residence in Canada. As mentioned, it is only where the person's connection with Canada is firmly established that periods of absence can be counted toward the three-year residence requirement. The citizenship judge did not specifically determine when Mr. Chern established his residence in Canada. According to the record before her, Mr. Chern left Canada soon after he arrived. Typically, he was absent from Canada 18 days out of every month. Mr. Chern cannot be said to have maintained his residency, despite his absences, until he had actually established it.
[6] The citizenship judge noted certain "passive indicia of citizenship": car insurance, a rental agreement, credit card statements and other invoices, bank records, and letters from a pastor and the children's schools. This is good evidence that the family established itself in Canada over time. But it does not specifically show that Mr. Chern did so and, more particularly, it does not show that he had done so as of June 25, 1999. Without knowing the starting point of his residence in Canada, it is impossible to calculate the number of days to his credit. Accordingly, I find that the citizenship judge's decision should be set aside.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The appeal is allowed.
"James W. O'Reilly"
Judge
Annex
| Citizenship Act, R.S.C. 1985, c. C-29
Grant of citizenship 5. (1) The Minister shall grant citizenship to any person who ... (c) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, and has, within the four years immediately preceding the date of his or her 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; |
|
Loi sur la citoyenneté, L.R.C. ch. C-29
Attribution de la citoyenneté 5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois_: [...] c) est un résident permanent au sens du paragraphe 2(1) de la Loi sur l'immigration et la protection des réfugiés 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;
|
|
|
|
|
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-107-05
STYLE OF CAUSE: MCI v. YEONG SHUENN CHERN
DATE OF HEARING: TORONTO, Ontario
DATE OF HEARING: July 19, 2005
REASONS FOR JUDGMENT
AND JUDGMENT BY: THE HONOURABLE MR. JUSTICE O'REILLY
DATED: July 26, 2005
APPEARANCES BY:
Mr. Jonathan Shapiro FOR THE APPELLANT
Mr. Yeong Shuenn Chern FOR THE RESPONDENT / ON HIS OWN BEHALF
SOLICITORS OF RECORD:
JOHN H. SIMS, Q.C. FOR THE APPELLANT
Deputy Attorney General of Canada
Toronto, ON
MR. YEONG SHUENN CHERN FOR THE RESPONDENT / ON HIS OWN BEHALF
Toronto, ON