Date: 19990805
Docket: T-2436-98
BETWEEN:
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Appellant,
- and -
SZE KIU CYNTHIA FUNG,
Respondent.
REASONS FOR ORDER
MULDOON J.
[1] The appellant Minister of Citizenship and Immigration (the "Minister") appeals, pursuant to subsection 14(5) of the Citizenship Act , R.S.C. 1985, c. C-29 (the "Act"), the decision of citizenship judge Jane Van Roggen, dated 4 November 1998, in which the citizenship judge granted Canadian citizenship to the respondent. The appellant contends that the respondent had failed to meet the residency requirements set out in paragraph 5(1)(c) of the Act as she had been physically present in Canada for only 486 days, thus falling short of the required 1095 days.
Background
[2] The respondent, Sze Kiu Cynthia Fung, became a permanent resident of Canada on 30 April 1994, along with her father, mother, and brother. She applied to three Canadian universities, Simon Fraser University, University of British Columbia, and University of Western Ontario, but failed to gain acceptance to any of the three. She was tentatively accepted by Simon Fraser (respondent"s record, p. 79). She was, however, admitted to Langara College, but withdrew after attending the orientation week because she was advised that it would not assist her in gaining entry into a university to study urban planning, which was her goal.
[3] Before coming to Canada, the respondent had completed Hong Kong"s Form 7 advanced education exams, and her scores assured her admission into the University of Hong Kong. Thus, after being refused by two Canadian universities, the respondent returned to Hong Kong in September 1994 and commenced studies in geography and geology. She earned a Bachelor of Arts degree in 1997, and in the fall of that year, started a Master"s program in urban planning, which was to run until May 1999, and was also located in Hong Kong.
[4] In her affidavit, the respondent indicates that while studying in Hong Kong, she lived in what was formerly the family home, owned by her grandmother (respondent"s record, tab A, p. 3). Her parents, however, had lived in rented accommodations in Vancouver for approximately the first five months, before purchasing a larger apartment. The respondent states in her affidavit that the family moved all of their belongings and furnishings to Canada, but when she returned to Hong Kong, she took with her a single suitcase and a few personal belongings. The majority of her personal belongings remained in the family home in Vancouver. While living in Hong Kong, she modestly furnished the former family home.
[5] The respondent returned to Canada on her Christmas and summer breaks, with the exception of the 1994 Christmas break and the 1996 summer break, the latter break was spent in France studying French pursuant to a University of Hong Kong requirement.
[6] The respondent submitted her application for Canadian citizenship on 23 September 1997, at which time she had 486 days of physical presence in Canada. She stated 300" days. (Affidavit, para. 21, p. 8). The respondent had obtained many of the so called passive indicia of commitment to Canada: social insurance number, British Columbia driver"s license, a library card, bank accounts, health insurance, membership at the retail store Mountain Equipment Co-op, and a room in her parents" home. Of course she seeks Canadian citizenship for herself, not for her documents.
Citizenship Judge"s Decision
[7] In her decision, dated 4 November 1998, Citizenship Judge Van Roggen noted that the respondent"s absences from Canada were due to studies abroad after failing to gain admission to a Canadian university. The judge also noted that her family lives in Canada and owns a home here. The judge further noted, as the respondent asserted to her, that the respondent was seeking a government job in planning and that a lack of Canadian citizenship could act as an impediment. The judge concluded that the respondent intends to settle in Canada and centralize her living here, and further, that she has a closer connection to Canada than to any other country and, indeed, has become Canadianized.
Appellant" s Position
[8] The Minister contends that the citizenship judge erred in finding that the respondent had satisfied the residency requirement of paragraph 5(1)(c) of the Act. The appellant Minister argues that the respondent did not, as required, first establish residency in Canada before leaving to engage in studies abroad. The appellant contends that the respondent"s initial four months spent in Canada do not amount to establishing a mode of living in this country.
[9] The appellant also disputes the respondent"s Canadianization through obtaining, inter alia , bank cards, medical coverage, and a social insurance number. The appellant contends that the respondent"s pattern of long absences and relatively short stays in Canada amount to visits to this country, rather than a return to a place where one regularly and customarily resides. The appellant argues that the quality of the respondent"s connection to Canada is not any more substantial than her connection to Hong Kong, and that her application is simply premature.
Respondent" s Position
[10] The respondent maintains that her absences from Canada were temporary in nature as they were for the purpose of pursuing studies abroad. The respondent relies on several cases in which citizenship was granted to applicant students who studied abroad: Re Chan (T-947-86, 10 September 1986); Re Cheung (T-691-89, 10 January 1990); Re Warde (T-1779-91, T-1806-91, 20 January 1992); Re Ismael (T-50-91, 30 June 1992); Re Hooft (1997), 38 Imm.L.R. (2d) 294 (F.C.T.D.); and Re Tai (T-1770-96, 9 October 1997).
Issue
[11] Whether the citizenship judge erred when she concluded that the respondent had satisfied the residence requirements of paragraph 5(1)(c) of the Act.
Analysis
[12] The residency requirements of paragraph 5(1)(c) of the Act are as follows:
| 5(1) The Minister shall grant citizenship to any person who: |
| (c) has been lawfully admitted to Canada for permanent residence, has not ceased since such admission to be a permanent resident pursuant to section 24 of the Immigration Act, and has, within the four years immediately preceding the date of his application, accumulated at least three years of residence in Canada calculated in the following manner: |
| (i) for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and |
| (ii) for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence. |
| [13] Most discussions in the relevant jurisprudence regarding residency seem to start by making reference to the judgment of Thurlow A.C.J. in Re Papadogiorkakis, [1978] 2 F.C. 208 (T.D.). That particular case considers residence as the equivalent of having centred one"s life in a place to which one habitually returns; it is mainly a matter of degree to which a person in mind and fact settles into, maintains, or centralizes his or her ordinary mode of living. Another eminent judge of this Court, Mr. Justice Walsh, rendered a judgment to the opposite effect in Re Khoury , reported at p. 75 of the same volume, in the same year. |
| [14] In Re Pourghasemi (1993), 19 Imm.L.R. (2d) 259 (F.C.T.D.), this Court commented, |
| It is clear that the purposes of paragraph 5(1)(c) is to ensure that everyone who is granted precious Canadian citizenship has become, or at least has been compulsorily presented with the everyday opportunity to become, "Canadianized". This happens by "rubbing elbows" with Canadians in shopping malls, corner stores, libraries, concert halls, auto repair shops, pubs, cabarets, elevators, churches, synagogues, mosques and temples"in a word wherever one can meet and converse with Canadians"during the prescribed three years. One can observe Canadian society for all its virtues, decadence, values, dangers and freedoms, just as it is. That is little enough time in which to become Canadianized. If a citizenship candidate misses that qualifying experience, then Canadian citizenship can be conferred, in effect, on a person who is still a foreigner in experience, social adaptation, and often in thought and outlook. |
| [15] In Re Shang (T-1186-97, 23 January 1998), Wetston J., in a factually similar case, held, |
| Can it be said that the appellant is a person who in mind and fact has centralized her ordinary mode of living with its accessories in social relations, interests and conveniences in Canada? The answer to this question is often most difficult in student cases. However, in this case, despite being a student, I am not satisfied that the appellant effectively established residence in Canada before making the decision to apply for Canadian citizenship. I am not satisfied that the quality of the appellant"s attachment throughout her period of study and up to the date of her application for citizenship was such as to qualify the time that she spent pursuing her studies as a period of residence in Canada. In my opinion, paying taxes, obtaining a social insurance number or a driver"s license are insufficient indicia of aggressively pursuing integration into the Canadian community and way of life. Rather, in this case, the evidence establishes that her attachment is more to her family, who live in Toronto, rather than her attachment to Canada in and of itself. |
| There must be some evidence of an attachment to Canada, not just that there is no connection to any other country. |
| [16] Gibson J. agreed with this reasoning in the recent case of Canada (MCI) v. Chuang (T-1100-98, 15 April 1999): |
| I am satisfied that the words of Mr. Justice Wetston in Re Shang effectively distil the essence of the case law previously cited, as it applies to persons who come to Canada in company with their parents and more or less promptly leave to pursue studies outside of Canada with regular returns to Canada but with little or no evidence put before the Citizenship Judge to demonstrate their attachment in returning to Canada is to Canada "in and of itself" rather than merely to family. I am satisfied that Mr. Justice Wetston"s words apply equally to the respondent in this matter. |
| [17] Previous case law in this Court appears to be erroneous. Centralizing one"s "ordinary mode of living" ... in Canada is not a statutory factor adopted by Parliament. These are extraneous words which Parliament has not enacted as criteria for residence. |
| [18] The jurisprudence evinced in Lam v. M.C.I., T-1310-98 (Lutfy J.) and Koo v. M.C.I., T-20-92 (Reed J.) both carefully thought out demonstrate what a vexed topic establishing residence can be. Finally, of course, "residence in Canada", always referring to presence, not absence, is for Parliament and not the judiciary to prescribe. |
| [19] Actual presence in Canada, while required under paragraph 5(1)(c), is the most relevant and critical factor in determining whether a citizenship candidate was resident in Canada within the meaning of the Act. Long absences " even those which are temporary in nature " are clearly not in accordance with the purpose and spirit of paragraph 5(1)(c ). Mr. Justice Wetston"s reasoning in Re Shang is equally applicable to the facts of the case at bar. This in no way, of course, precludes the respondent from ever seeking Canadian citizenship in the future. The law is as Parliament has enacted it, not what judges think it ought to be. |
| Conclusion |
| [20] The Minister"s appeal should be allowed, and the decision of the citizenship judge, dated 4 November 1998, should be set aside on the ground that the respondent did not meet the residence requirements of paragraph 5(1)(c ) of the Act at the time of her application for Canadian citizenship. |
| (Sgd.) "F. C. Muldoon" |
| Judge |
| Vancouver, British Columbia |
| 5 August 1999 |
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-2436-98
| STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
v.
SZE KIU CYNTHIA FUNG
PLACE OF HEARING: VANCOUVER, B.C.
DATE OF HEARING: August 4, 1999
REASONS FOR ORDER OF MULDOON, J.
DATED: August 5, 1999
APPEARANCES:
| Ms. Pauline Anthoine for Appellant |
| Mr. Gordon Maynard for Respondent |
SOLICITORS OF RECORD:
Mr. Morris Rosenberg
Deputy Attorney General
| of Canada for Appellant |
McCrea & Associates
| Vancouver, BC for Respondent |