Canada ( Minister of Citizenship and Immigration ) v. Lok
T-2843-96
Reed J.
19/6/98
13 pp.
Appeal from approval of citizenship application-Citizenship Act, s. 5(1)(c) requiring successful applicant to establish permanent residence in Canada and reside in Canada for three out of four years immediately preceding citizenship application-Applicant physically present in Canada for 107 days between date of landing and application for citizenship-Appeal allowed-(1) As to preliminary motion for order new Federal Court Rules, which came into force on April 25, 1998 apply to appeal so that appeal dealt with on basis of record alone, without hearing witnesses, circumstances herein make application of new Rules inappropriate-As of April 25, 1998, procedural steps prior to hearing, some of which imposed by Court order based on premise respondent would be allowed to call witnesses, essentially complete-New Rules providing for different procedure in determining citizenship appeals than that previously existing-Rules setting out interrelated series of procedural steps, time limits for later steps depending upon earlier steps in process-While transitional provision in R. 501(1) providing for application of new Rules to existing proceeding, new Rules intended to apply prospectively from date of coming into force, and not to abrogate or replace procedural steps already completed-R. 501 must be read in light of Interpretation Act, ss. 43, 44 providing new provisions apply only in so far as can be adapted to proceeding taken under former enactment-As of April 25, 1998 no procedural steps remaining to which new Rules could sensibly apply-Procedure followed and ordered based on appeal, often described as de novo hearing-Appeal should proceed on that basis-(2) As to merits, Citizenship Judge's decision seriously flawed-Assessment of factors relevant to consideration of whether individual having substantial connection to Canada so that residency can be said to exist despite physical absence identified in Koo (Re), [1993] 1 F.C. 286 (T.D.)-(1) No extended physical presence in Canada prior to respondent's extensive absences, and respondent only present in Canada for 14 days before immediately leaving; (2) although wife, children in Canada, parents, brother, friends in Hong Kong; (3) pattern of sojourns in Canada not exhibiting "returning home", and fact family now living in friend's house, having rented out their home, more consonant with intention to remain in Canada temporarily than with intention to permanently reside here; (4) respondent's physical absences extensive; (5) physical absences not temporary as occasioned by work for Hong Kong company, and Canadian company respondent incorporated shell; (6) no evidence quality of connection to Canada greater than that to Hong Kong-Citizenship Act, R.S.C., 1985, c. C-29, s. 5(1)(c)-Federal Court Rules, 1998, SOR/98-106, R. 501.