Digests

Pau v. Canada (Minister of Citizenship and Immigration)

T-351-03

2003 FC 1439, Harrington J.

10/12/03

6 pp.

Appeal from refusal of Canadian citizenship on grounds had not accumulated at least three years (1095 days) of residence in Canada within four years immediately preceding application, as required by Citizenship Act, s. 5(1)(c)-- Applicant spent only 397 days, or 27% of his time in Canada during four-year period prior to application--Interpretation of Act, s. 5(1)(c) varying in case law--Divergence in case law commented upon by Lutfy J. in Lam v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 177 (F.C.T.D.)--Noted open to citizenship judge to adopt any one of three conflicting lines of case law, and if facts of case properly applied to principles of that approach, decision not wrong--However, common thread throughout case law that citizenship applicant must first have established residence in Canada--Only then must one follow one school of thought or another in determining whether to justify voluntary physical absences beyond 365 days allowed by Act--Here, citizenship judge followed Koo (Re), [1993] 1 F.C. 286 and in accordance with Lam, supra, decision should not be disturbed-- Applicant falls very short of 1095-day requirement of actual residence--Applicant's absences explained by business in securing funds for his Canadian company's future investments or to enable him to serve as business consultant for foreign investors interested in exploring Canadian real estate market--However, while many Canadian citizens must spend large part of their time abroad in connection with their business, applicant for citizenship does not have such freedom because of s. 5(1): Leung (Re) (1991), 42 F.T.R. 149 (F.C.T.D.)--Appeal dismissed--Citizenship Act, R.S.C., 1985, c. C-29, s. 5(1)(c) (as am. by S.C. 2001, c. 27, s. 228).