Federal Court Decisions

Date: 19971215

Docket: T-692-97

     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

     MAN YICK CHUNG

     Appellant.

     REASONS FOR JUDGMENT

JOYAL, J.

[1]      This is an appeal from a decision of the Citizenship Judge, dated March 11, 1997, which found that the appellant did not meet the residency requirements stipulated in section 5 of the Citizenship Act ("the Act"). This section provides that an applicant for Canadian citizenship must have resided in Canada for at least three of the four years preceding the date of citizenship application.

[2]      Way back in 1978, in Re. Papadogiorgakis¹, this Court ruled that the residency requirement in the Act does not necessarily impose physical presence for three years. The case held that absences for business purposes, to attend school, to work offshore for a Canadian enterprise, or to wind up a deceased's estate, all of these are of a nature to constitute the kind of constructive residency capable of satisfying the three-year rule, insofar as there is evidence throughout of an obvious intention by the immigrant of returning to Canada and of it having effectively become his or her new country of residence.

[3]      The application of the constructive residency doctrine must of course be on a case by case basis, and there is a risk of negating the will of Parliament if it be applied too far. My colleague Muldoon J. had strong words in this respect in the case of Re. Hui², where he castigated the Court for being far too generous in its application of Re. Papadogiorgakis. I agree with him that care must be taken, particularly in the scrutinizing of indicia of residence in Canada such as credit cards, driver's licence, bank accounts, health card and social insurance card. Although all of these indicia are indicative of residency, none of them are individually or collectively conclusive.

[4]      What bothers me in this case, and what must also have preoccupied the Citizenship Judge, is not only the appellant's numerous and lengthy absences from Canada, but the extremely short periods of actual physical presence here during the four years preceding the citizenship application. This is not to suggest that he is unsuitable for Canadian citizenship, or that the Canadian citizenship now enjoyed by his spouse and children is not pretty much an open door for his own entry. Rather, it is meant to show respect for the will of Parliament when it imposed the three-year rule in the statute, a respect which is surely lacking if the rule can be easily broken by simple judicial fiat.

[5]      As I mentioned earlier, the appellant has many things going for him. Yet on the evidence before the Citizenship Court, the Judge could not find that the appellant had managed to comply with the long-intended meaning of the residency rule. Before me, counsel for the appellant submitted very sober and impressive argument, with good jurisprudence in support, to clear the way for a more favourable ruling. However, on the face of the evidence, the same as that before the Citizenship Court, I can unfortunately see no reason to come to a different conclusion. It will be only required that the appellant apply again and hopefully obtain better results.

[6]      The appeal is hereby denied.

                                 L-Marcel Joyal

                                 J U D G E

O T T A W A, Ontario

December 15, 1997

     ¹      (1978) 2 F.C. 208.

     ²      (1994) Imm.L.R. (2d) 8.