CITIZENSHIP AND IMMIGRATION |
Status in Canada |
Citizens |
Canada (Minister of Citizenship and Immigration) v. Xu
T-107-02
2002 FCT 1111, Martineau J.
24/10/02
13 pp.
Appeal by Minister of Citizenship and Immigration from Citizenship Judge's decision approving respondent's application for citizenship--Applicant required to accumulate more than three years' residence within four years preceding date of application--Respondent not meeting residency requirements--Citizenship Judge approving application-- Minister seeking to set decision aside on grounds that Citizenship Judge erred in fact, considered irrelevant facts, ignored material evidence, or otherwise erred in law in determining respondent met residency requirements-- Residency requirement subject to conflicting interpretation by this Court--Physical presence mandatory in view of some judges, others consider justifiable absences may not count against accumulation of residence time--Citizenship Judge applying test in Koo (Re), [1993] 1 F.C. 286 (T.D.)--Physical presence required--Not considering whether respondent had become established in Canada prior to first absence and whether absences recent and occurred immediately before filing of application for citizenship--Error fatal-- Respondent's absences significant--Recent cases favouring conservative approach, greater emphasis on physical presence --Citizenship Judge not addressing whether respondent's absences caused by temporary situation--Multiple reasons for absences--Reasons casting doubt on extent, accuracy of Citizenship Judge's findings--Citizenship Judge not applying case law correctly--Court cases emphasizing need for substantial physical presence, and need to demonstrate meaningful connection to Canada prior to leaving for temporary purpose--Respondent arguing test should be relaxed because respondent is student--Respondent not full-time student and giving other reasons for absences--"Student cases" tending to show residency must first be established and then maintained: Chan v. Canada (Minister of Citizenship and Immigration), 2002 FCT 270; [2002] F.C.J. No. 376 (T.D.) (QL)--Respondent only present in Canada five days before departure to China--Reasons by Citizenship Judge not demonstrating understanding of Koo test, and not accurate-- Not enough evidence to establish constructive residency-- Appeal allowed--Citizenship Act, R.S.C., 1985, c. C-29, s. 5(1)(c).