CITIZENSHIP AND IMMIGRATION |
Status in Canada |
Citizens |
Canada (Minister of Citizenship and Immigration) v. Yan
T-673-03
2004 FC 864, Kelen J.
15/6/04
8 pp.
Appeal from grant of citizenship under Citizenship Act (Act), s. 5(1)(c)--Respondent entered Canada as permanent resident on April 22, 1999 and then began employment with Nova Chemicals Corp., Canadian petrochemical company-- Employment required him to make frequent international travels--He applied for Canadian citizenship in September 2002, at which time he had been physically present in Canada for 653 days out of required 1095, resulting in shortfall of 442 days--Respondent presented evidence to demonstrate centralized mode of existence in Canada, including that his spouse and child live in Canada--Citizenship Judge found all of respondent's absences temporary in nature, for purposes of Canadian employment, and respondent always considered Canada as home--Statutory residence requirements under Act, s. 5(1)(c)--Citizenship Judge applied flexible six-part test in Koo (Re), [1993] 1 F.C. 286 (T.D.)--Test not solely depending on number of days applicant physically present in Canada--Citizenship Judge clearly misapplied factors to consider under Koo (Re) test--Act, s. 5(1)(c) requires applicant acquire at least 3 years of residence within 4 years immediately preceding date of application--While Koo (Re) test allows residency to be interpreted such that physical presence may not be required for entire three-year period, cannot be used to deem applicant to have been physically present for requisite period if absent for 1 1/2 years-- Respondent not maintaining residential base in Canada or paying Canadian income tax while living in Switzerland-- Even though obtained returning resident permit, maintained Canadian bank account, Canadian medical insurance, provincial driver's licence, and put furniture into storage during extended absence in Switzerland, insufficient to meet Koo (Re) test for deemed physical presence--In Koo (Re), short absences counted after individual physically present so as to have centralized existence in Canada--Appeal allowed--Citizenship Act, R.S.C., 1985, c. C-29, s. 5(1)(c).