CITIZENSHIP AND IMMIGRATION |
Status in Canada |
Citizens |
Lin v. Canada (Minister of Citizenship and Immigration)
T-996-01
2002 FCT 346, Dawson J.
27/3/02
8 pp.
Appeal from Citizenship Court's decision appellant failed to comply with residency requirements of Citizenship Act, s. 5(1)(c) to qualify for citizenship--410 days short of 1,095 days required by Act--In determining whether appellant had demonstrated had centralized mode of existence in Canada, Citizenship Judge applied Koo (Re), [1993] 1 F.C. 286 (T.D.)--Appeal dismissed--Decision of Citizenship Court on proper interpretation of Act, s. 5(1)(c) to be reviewed on standard of correctness--No indication in present case Judge did not properly apply test set out in Koo--Obiter: Preponderance of current case law with respect to citizenship appeals applying decision of Lutfy J. in Lam v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 177 (F.C.T.D.), more particularly comment to effect citizenship judges may adopt either one of conflicting schools of case law in Federal Court concerning residence and, if facts of case properly applied to principles of chosen approach, decision would not be wrong--Views premised on fact proposed enactment of new Citizenship of Canada Act intended to clarify residency requirement--Lutfy J.'s reasons referred, therefore, to "period of uncertainty", "unique period of likely transition"--However, newly enacted but not yet proclaimed Immigration and Refugee Protection Act, s. 228(1) simply amending present Act, s. 5(1)(c)--Therefore, state of transition relied upon and referred to by Lutfy J. no longer exists--Can be no more than one correct interpretation of Act, s. 5(1)(c)--Justice and fairness will no longer be achieved by Lam approach: Chen v. Canada (Minister of Citizenship and Immigration) (2001), 17 Imm. L.R. (3d) 222 (F.C.T.D.)-- Fundamentally unfair that two persons may apply for citizenship on identical facts, yet obtain opposite results depending upon whether principles in Pourghasemi (Re) (1993), 19 Imm. L.R. (2d) 259 (F.C.T.D.) or in Papadogiorgakis (In re) and in re Citizenship Act, [1978] 2 F.C. 208 (T.D.) applied--Situation can only be remedied by Parliament clearly expressing its will with respect to residence requirements--Citizenship Act, R.S.C., 1985, c. C-29, s. 5(1)--Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 228(1) (not yet in force).