Date: 19981014
Docket: T-2401-97
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
Cheung Chuen Lau,
Appellant.
REASONS FOR JUDGMENT
PINARD, J. :
[1] This is an appeal, by way of a trial de novo, from the decision of a Citizenship Judge dated October 10, 1997 dismissing the appellant's application for citizenship on the ground that he did not comply with the residency requirements of paragraph 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29 (the Act), which states:
| 5. (1) The Minister shall grant citizenship to any person who . . . (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:
(Emphasis added.) |
5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois : . . . 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:
(Mon emphase.) |
[2] The appellant was granted permanent residence status in Canada on September 8, 1993. He filed for Canadian citizenship on September 9, 1996. Accordingly, the relevant four-year period commenced on September 9, 1992. Until the date of his application for citizenship, he was absent for a total of 329 days, leaving him short by 327 days of the 1,095 days needed to satisfy the residence requirements in paragraph 5(1)(c) of the Act. The appellant maintains that all of his absences were winter vacations in a warmer climate, vacations which are necessary to his medical condition. Also, his son lives in California and one of the vacations was to help him move.
[3] There is jurisprudence which does not require the physical presence of an appellant in Canada for the entire 1,095 days, when there are special or exceptional circumstances. However, in my view, too long of an absence from Canada, albeit a temporary one, 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 not to reside in Canada during one of the four years immediately preceding the date of that person's application for Canadian citizenship.
[4] Furthermore, the appellant was granted permanent resident status in Canada only three years prior to his application for citizenship. Had he applied for Canadian citizenship one year later, his medical condition would not have been a factor preventing him from meeting the residency requirements of paragraph 5(1)(c) of the Act, as it appears on the evidence before me.
[5] Given the circumstances, the application for citizenship was premature and I find, therefore, that the appellant does not meet the residency requirements of the Act. Consequently, in spite of the appellant's counsel's able presentation, the appeal is dismissed.
JUDGE
OTTAWA, Ontario
October 14, 1998