Date: 19991216
Docket: T-139-99
Application under Rule 300(c) of The Federal Court Rules
and Section 14(5) of The Citizenship Act
BETWEEN:
HING LAI LI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL, J.
[1] My decision in this judicial review is rendered according to my interpretive findings in MCI v. Wing Tung Thomas Yeung (F.C.T.D. No. T-1256-98, rendered 3 February 1999).1
[2] In the present case, I find an error in due process.
[3] Prior to the hearing before the Citizenship Judge, it is clear from the documentary application for citizenship filed by Mr. Lai, that the issue of residence would be very much in contention. On the affidavits of Mr. Lai and his daughter filed in the present application, I am satisfied that no meaningful opportunity was provided to Mr. Lai to address this issue in the oral hearing.
[4] In my opinion, this opportunity must be provided. Accordingly, I set aside the decision of the Citizenship Judge, and refer the matter to another Citizenship Judge for redetermination on the direction that a full opportunity be provided to Mr. Lai to address the issue of residence.
[5] I award costs to Mr. Lai in the sum of $500.
"Douglas R. Campbell"
J.F.C.C.
Toronto, Ontario
December 16, 1999
__________________
1.. Error! Main Document Only.Error! Main Document Only.Error! Main Document Only.Error! Main Document Only.Error! Main Document Only.Error! Main Document Only.Error! Main Document Only.Error! Main Document Only.Error! Main Document Only.. I am in agreement with Rouleau, J.'s decision in MCI v. Hin Keung Hung (F.C.T.D. No. T-1345-98, rendered 21 December 1998), that under the new rules, citizenship appeals are no longer trials de novo, and, therefore, are governed by s.18.1(4) of the Federal Court Act. In this respect, for a decision of a citizenship judge to be set aside, it is necessary to find reviewable error. Apart from clear errors of law, which are rare, citizenship appeals under the new rules focus on s.18.1(1)(d), about which Rouleau, J. in Hung at 4 says as follows:
Section 18.1(1)(d) essentially codifies the way the courts have viewed findings of fact made by administrative tribunals. In Kibale v. Transport Canada (1988), 90 N.R. 1 (F.C.A.) at 4, leave to S.C.C. refused (1989), 101 N.R. 238 (S.C.C.), Pratte J.A. stated that "even if the court is convinced that a decision is based on an erroneous finding of fact, it cannot intervene unless it is also of the opinion that the lower court, in making its finding, acted in a perverse or capricious manner, or without regard for the evidence." Not only must the finding of fact be perverse or capricious or without regard to the evidence before the adjudicator, this court must make such a finding if it is to interfere pursuant to s.18.1(4)(d).
- . The present case turns on whether the citizenship judge correctly interpreted the terms of s.5(c) of the Citizenship Act (the "Act") which reads as follows:
- 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;
- (d) has an adequate knowledge of one of the official languages of Canada;
- (e) has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship; and
- (f) is not under a deportation order and is not the subject of a declaration by the Governor in Council made pursuant to section 20. [Emphasis added].
- Error! Main Document Only.. There is divided opinion on this Court as to the interpretation to be placed on the residency requirement set out in s.5(c). I find that Thurlow, J.'s reasons in Re Papadogiorgakis, [1978] 2 F.C. 208 at 214, are compelling, and, therefore, accept the test to be applied 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 even 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.".
- Error! Main Document Only.. On the basis of Re Papadogiorgakis, it is clear that to meet the residency requirement in s.5(c) of the Act a person must have an "established home" in Canada and not cease to be a resident there. However, also according to Thurlow, J.'s reasoning, the 1095 days of residence in Canada prior to the date of a citizenship application required by s.5(c) of the Act is not a rigid standard.
- Error! Main Document Only.. With respect to determining whether a person has established a home in Canada or, if so, ceases to be resident there, I completely agree with the approach of Dubé, J. in Re Banerjee (1994), 25 Imm. L.R. (2d) 235 (F.C.T.D.) stated at 238 as follows:
- However, each case must turn on its own facts. It is the quality of the attachment to Canada that is to be ascertained. No specific item or number of items will, in all cases, be determinative of the issues .... The length of the absences of itself is not determinative. However, taken together with the circumstances which surround the absences, the length of the absences may be a factor in determining a person's quality of attachment to Canada .... [citations omitted] [Emphasis added].