Digests

Chen v. Canada (Minister of Citizenship and Immigration)

T-213-01

2001 FCT 1229, Nadon J.

9/11/01

11 pp.

Appeal from denial of citizenship for failure to meet residency requirement set out in Citizenship Act, s. 5(1)(c)-- Within four years immediately preceding date of application applicant present in Canada for 643 days, absent for 677 days, of which 641 days spent in Taiwan--In refusal letter citizen-ship judge stating not maintaining sufficient ties with Canada to have absences count as periods of residence; referring toPourghasemi (Re) (1993), 19 Imm. L.R. (2d) 259 (F.C.T.D.) --Appeal dismissed--(1) Refusal letter meets notification of reasons requirement of s. 14(3)--(2) Citizenship judge not ignoring relevant evidence--(3) Properly interpreting s. 5(1)(c)--Applicant argued citizenship judge may choose, apply test set out either in In re Papadogiorgakis and in re Citizenship Act, [1978] 2 F.C. 208 (T.D.) as modified by Re Koo, [1993] 1 F.C. 286 (T.D.) or Re Pourghasemi, but failure to clearly choose one of two tests reviewable error-- Submission derived from Lam v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 177 wherein Lutfy A.C.J. stated citizenship judge could apply law felt most appropriate, as long as properly applied correct and relevant principles to facts--Lam disagreed with--Cannot be two correct interpretations of s. 5(1)(c)--That decisions of Trial Division cannot be appealed to Court of Appeal not giving rise to hybrid interpretation of statutes--Justice, fairness not achieved by approach suggested in Lam--That approach simply creating another form of injustice in that two persons applying for citizenship before different citizenship judges will not get same treatment--Only Parliament can remedy situation--If interpretation of s. 5(1)(c) in Pourghasemi correct, then that is law which citizenship judges must apply --But under Papadogiorgakis modified by Koo test applicant may succeed even if not spending required three years in Canada--Citizenship judges in impossible position--If appeal of their decision heard by judge of Trial Division who follows test citizenship judge did not follow, decision will likely be overturned--Regrettable state of affairs which can only be clarified by Parliament--Since correct test one enunciated in Pourghasemi, applicant cannot succeed--Even if test stated in Papadogiorgakis, as modified by Koo, accepted as correct test, conclusion same--Applicant's actual physical presence in Canada one of "merely visiting"--Connection more substantial with Taiwan than Canada--Citizenship Act, R.S.C., 1985, c. C-29, ss. 5(1)(c), 14(3).