Date: 19980120
Docket: T-487-97
IN THE MATTER OF THE CITIZENSHIP ACT,
R.S.C., 1985, c. C-29
AND IN THE MATTER OF an appeal from the
decision of a Citizenship Court Judge
AND IN THE MATTER OF
KWOK NING ARTHUR CHAN,
Appellant.
REASONS FOR JUDGMENT
GIBSON, J.:
[1] This appeal was heard before me at Toronto, Ontario on the 19th of January, 1998. The appellant appeals a decision of a Citizenship Court Judge, dated the 6th of March, 1997 refusing his application for citizenship on the basis that he did not meet the residency requirement for Canadian citizenship that is provided in paragraph 5(1)(c) of the Citizenship Act. In his decision, the learned Citizenship Court Judge wrote in part:
| I have considered that: |
| . Mr. Chan was a student at Northview Heights Secondary School, North York, from 1983 until graduation in 1986; |
| . Mr. Chan returned to Canada as a permanent resident on August 12, 1992. He was accompanied by his parents and his brother, Eric. Eric is a Canadian citizen (1996); |
| . On August 23, 1992, Mr. Chan returned to Arizona State University. In 1989, he enrolled in a full-time Bachelor of Science program, majoring in Computer Systems Engineering. He graduated in August, 1993; |
| . During his studies, Mr. Chan visited his family for holidays between classes, for total of 52 days. His parents own the home at 61 Southgate Crescent, Richmond Hill, since 1992; |
| . Mr. Chan has usual documents -- SIN and OHIP cards, bank credit cards, active bank accounts, Ontario driver's licence (issued on Nov. 29, 1995), etc; |
| . In 1993, he purchased a 1993 Toyota Camry from Scarborough Lexus Toyota; |
| . Mr. Chan filed his income tax returns in 1994 and 1995 -- reporting his foreign employment income; |
| . Following his graduation with a BSc degree, four letters on file show that he unsuccessfully attempted to find employment in Canada; |
| . In April 1994 he left Canada for U.S.A. He obtained a training position with Current Logic Systems, Inc., Fremont, CA. A letter on file, dated August 22, 1996, indicates that he was still employed there; |
| . From April 14, 1994 until September 2, 1995 (last reported absence), Mr. Chan visited his family on three occasions for a total of 31 days. |
| In view of the above, I have concluded that Canada is not where Mr. Chan "regularly, normally and customarily lives". |
[2] While the decision letter sent to counsel for the appellant and dated some 5 days after the document marked "Decision" from which the foregoing quotation is drawn lacked the details of the evidence that I have quoted, it advised the appellant that his application for Canadian citizenship was not approved and noted that his absences from Canada in the four years preceding the date of his application for Canadian citizenship total 849 days, thus leaving him substantially short of the 1,095 days residence that is required.
[3] The evidence adduced before me varied in detail from that quoted above. In response to questions from his counsel, the appellant emphasized the fact that, before enrolling in university in the United States, he had applied for registration in architecture programs of three Canadian universities and had been rejected by each of them. He was originally accepted into the architecture program at the University of Arizona but later switched to the computer science program or, as indicated above, a Bachelor of Science program majoring in Computer Systems Engineering. Following his undergraduate education in the United States, the appellant returned to Canada and for six months sought employment in Canada in his area of specialization. He was unsuccessful in his efforts. Thus, he explained, he accepted employment in the United States that was offered to him. In September 1996, he quits his employment in the United States and again returned to Canada. Since that time, he has unsuccessfully sought employment in Canada. He has had only three employment interviews.
[4] In October of 1997, the appellant married an American citizen who continues to reside in the United States and is employed there.
[5] On the basis of the evidence, counsel for the appellant argued that, despite his periods of absence from Canada, the appellant has clearly centralized his mode of living here in Canada and should be granted Canadian citizenship. The amicus curiae advised the Court that, in his submission, the evidence did not establish that the appellant had centralized his mode of living in Canada.
In Re. Lee,1 Madame Justice Reed wrote:
| I have no doubt that the appellant would made an excellent citizen of Canada. She has been studying in England since she was sixteen and is presently completing medical studies at the University of Cambridge. |
| She came to Canada on May 24th, 1991, along with her parents and siblings. The whole family became landed immigrants on that date. The appellant left two days later to return to the United Kingdom, to continue her studies there. She applied for citizenship on July 4, 1994. Within the preceding four year period she had resided in Canada for 165 days. She was short 930 of the 1,095 of residence required by the Citizenship Act. By no stretch of the imagination can it be said that she has satisfied the residency requirement of the Act. |
| It is argued that her centralized mode of existence is in Canada because her family is here and because the quality of her residence in the United Kingdom has been as a student. I cannot so conclude. She is not a minor. Her chosen profession is one with respect to which it is well-known there are substantial barriers to entry in Canada for persons not trained in Canada. She has been a student in the United Kingdom , now for many years. Perhaps one day she will come to Canada and fulfil the residency requirements. In that case she will be entitled to citizenship. I sincerely hope she does so because, as I have indicated, I am of the view that she would be an excellent addition to our citizenry. |
[6] While the facts of this matter differ substantially from those that were before Madame Justice Reed in Re. Lee, I am satisfied that the same principles apply. Here the applicant was in Canada on a temporary basis for a significant period of time before landing and before leaving for the United States to study and later to work. He sought a position in three Canadian universities before accepting enrolment in a university in the United States. Following completion of his studies, he sought employment in Canada, without success, although employment in his field of expertise was not one of which it can be said that there are "substantial barriers to entry to Canada for persons not trained in Canada". Following his period of employment in the United States, he has, for well over a year, again been seeking employment in Canada. He has married an American citizen, resident and employed in the United States. Given his marital status and his lack of success in finding employment in Canada, it is difficult to say what the future will hold for him, what ever is his commitment to Canada.
[7] His commitment to his parents and his brother in Canada cannot be doubted. At the same time, his commitment to the broader Canadian community is not supported by evidence of significant involvement in that community.
[8] On the basis of demeanour and presentation of the appellant before me, like Madame Justice Reed in Re. Lee, I am satisfied that the appellant would make an excellent addition of our citizenry. But at this point in time, I simply cannot conclude that his principal attachment is to Canada. Given that conclusion and the fact that, effective on the date of his application for Canadian citizenship, he failed, on a mathematical calculation, to fulfil the residency requirement, I conclude that this appeal must be dismissed.
"Frederick E. Gibson"
Judge
Toronto, Ontario
January 20, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: T-487-97
| STYLE OF CAUSE: IN THE MATTER OF the Citizenship Act, |
| R.S.C., 1985, c. C-29 |
| AND IN THE MATTER OF an appeal from the decision of a Citizenship Judge |
| AND IN THE MATTER OF |
| KWOK NING ARTHUR CHAN, |
DATE OF HEARING: JANUARY 19, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: GIBSON, J.
DATED: JANUARY 20, 1998
APPEARANCES: Mr. Stephen W. Green
For the Appellant
Mr. Peter K. Large
Amicus Curiae
SOLICITORS OF RECORD: Green and Spiegel
121 King Street West
Suite 2200, P.O. Box 114
Toronto, Ontario
M5H 3T9
For the Appellant
Peter K. Large
Barrister and Solicitor
610-372 Bay Street
Toronto, Ontario
M5H 2W9
Amicus Curiae
FEDERAL COURT OF CANADA
Date: 19980120
Docket: T-487-97
BETWEEN:
IN THE MATTER OF the Citizenship Act,
| R.S.C., 1985, c. C-29 |
| AND IN THE MATTER OF an appeal from the decision of a Citizenship Judge |
| AND IN THE MATTER OF |
| KWOK NING ARTHUR CHAN, |
Appellant
REASONS FOR JUDGMENT
__________________