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In re Mrs. Sook Ying Lum (Appellant)
Citizenship Appeal Court, Pratte J.—Toronto, January 11; Ottawa, January 12, 1972.
Citizenship—Simultaneous applications by husband and wife—Husband but not wife satisfied residence require- ments—Husband's application granted—Whether wife enti tled to citizenship—Canadian Citizenship Act, s. 10(1)(c) (i) and (iii).
On January 11, 1971, Mr. Lum and his wife applied for Canadian citizenship. The husband had resided in Canada for more than five of the preceding eight years as of the date of his application, and was accordingly granted Canadi- an citizenship by the Citizenship Court. The application of the wife was, however, rejected by that Court on the ground that when she made her application she was not the wife of a Canadian citizen and had not resided in Canada for at least five of the preceding eight years, as required by subparagraph 10(1)(c)(i) of the Canadian Citizenship Act. The wife appealed on the ground that as her husband had become a Canadian citizen she was relieved by subpara- graph 10(1)(c)(iii) of the residency requirements imposed by subparagraph 10(1)(c)(i).
Held, dismissing her appeal, on the evidence before the Court of first instance and the additional evidence before this Court on appeal, the Court of first instance was right in holding that she did not meet the requirements of s. 10 when she made her application.
APPEAL from Citizenship Court. Ian F. H. Rogers (amicus curiae.)
PRATTE J.—This is an appeal pursuant to the Canadian Citizenship Act from a decision, dated June 4, 1971, that the appellant, Mrs. Sook Ying Lum, was not a fit and proper person to be granted a certificate of citizenship since, not being the wife of a Canadian citizen, she had not resided in Canada for at least five of the eight years immediately preceding the date of her application for such a certificate.
The appellant, who was born in China, got married with Mr. Kee Chun Lum in 1966. She was admitted to Canada for permanent resi dence on September 17, 1967, and, since then, has always resided with her husband in Hunts- ville, Ontario. On January 11, 1971, both the appellant and her husband applied for a certifi cate of Canadian citizenship.
Dealing with the application of the appellant's husband, the court of first instance reached the conclusion that he possessed the required
qualifications to be granted a certificate of Canadian citizenship. Indeed, Mr. Lum, apart from meeting the other requirements of section 10(1) of the Canadian Citizenship Act, had resided in Canada for more than five of the eight years preceding the date of his applica tion; he had been lawfully admitted to Canada on May 7, 1964, and, since then, had always resided in Huntsville, Ontario. A certificate of Canadian citizenship was therefore granted to the appellant's husband who became a Canadi- an citizen upon his taking the oath of allegiance on December 10, 1971.
Dealing with the appellant's application, the court of first instance, as I already said, reached the conclusion that she was not a fit and proper person to be granted a certificate of citizenship. This conclusion was based on the finding that, at that time, the appellant was not the wife of a Canadian citizen and had not, as required by subparagraph 10(1)(c)(î) of the Act, resided in Canada for at least five of the eight years immediately preceding the date of her applica tion. It is the correctness of this decision which is now at issue.
It is the contention of the appellant, whose views were put forward by the amicus curiae appointed by the Deputy Attorney General of Canada, that the decision appealed from should be reversed for the reason that the appellant's husband having become a Canadian citizen on December 10, 1971, the appellant is now a fit and proper person to be granted a certificate of citizenship since, under subparagraph 10(1)(c)(iii), the foreigner who is the wife of a Canadian citizen does not have to meet the requirements as to residence of subparagraph 10(1)(c)(i).
With much regret, I must say that this conten tion appears to me to be ill-founded. Sitting in appeal under section 31 of the Act, I am not called upon to determine whether or not the appellant, at the present time, meets the requirements of section 10 of the Act; I have only to say whether, in the light of the evidence brought before the court of first instance and of the additional evidence adduced before this Court, the court of first instance was right in finding that the applicant, at the time she made her application, on January 11, 1971, was not a
fit and proper person to be granted Canadian citizenship. As it is not disputed that the appel lant, when she made her application, did not meet the requirements of section 10(1) of the Act, it is clear that the finding of the court of first instance in this respect cannot be disturbed.
I have, therefore, no alternative but to dis miss this appeal.
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