Date: 19981130
Docket: T-145-98
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
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Appellant
- and -
KIT YU HO
Respondent
REASONS FOR ORDER
WETSTON J.
[1] This is an appeal under subsection 14(5) of the Citizenship Act and section 21 of the Federal Court Act, brought on behalf of the Minister of Citizenship and Immigration, of a decision wherein the Citizenship Judge approved the application of the respondent for a grant of Canadian citizenship under subsection 5(1) of the Citizenship Act.
[2] In a decision dated December 17, 1997, the Citizenship Judge determined that the respondent had met the residence requirement of paragraph 5(1)(c) of the Act, despite the fact that the respondent had been physically present in Canada for only 253 days and therefore was short 842 days.
[3] The respondent is from Hong Kong and acquired permanent residence in Canada on August 14, 1993. She came to Canada with her parents and five sisters. On August 23, 1993, nine days after being landed in Canada as a permanent resident, the respondent left Canada for Australia to continue her studies in architecture at the Royal Melbourne Institute of Technology. The respondent had been enrolled at that school since 1991. The relevant period with respect to paragraph 5(1)(c) of the Act is February 28, 1993 to February 28, 1997. The respondent returned to Canada on five occasions after she left in August 1993. On the first occasion it was for 25 days, the second time for 39 days, the third time for 66 days, and the fourth time for 54 days. On February 10, 1997, she was in Canada for five days prior to the date of the application. In essence, the respondent accumulated 842 days less than the 1,095 days required residency over the 3-year period.
[4] Mr. Martin submitted that the respondent filed Canadian tax returns, had a joint bank account in Canada, and a social insurance number since 1995. She is now working as an architect in Canada. There is little doubt that she was already a student in Australia when she applied for landing in Canada. Ms. Ho examined whether she might be able to transfer to the University of British Columbia but the system appeared to be different such that it may have required an extra year of studies which she was not prepared to undertake. While she had left Canada for an operation in Hong Kong, this was mostly due to her parents' greater familiarity with the medical system in Hong Kong than with that in Canada. At that time, she had no intention to remain in Hong Kong and she testified that her intention was at all times to return to Canada where her family is and where she intended to live. She was at all times a dependant student.
[5] The appellant contended that the evidence showed that the respondent had established her mode of living after arriving in Canada in 1996 and not prior to that. It was contended that her application was premature. It was also contended that she had never really integrated into Canadian society despite the five return visits and that she had never centralized her mode of living in Canada. According to the amicus curiae in examining in Re Koo [1993] 1 F.C. 294, (1992) 19 Imm. L.R. (2d) 1, 59 F.T.R. 27 (T.D.), while the respondent clearly did not satisfy the first consideration, her family was in Canada and the pattern of her physical presence, i.e., five return visits, is of a somewhat regular nature. He submitted that the physical absences due to her studies were only temporary. Finally, the quality of her attachment to Canada appears stronger than that to Australia where she was studying and to Hong Kong.
[6] It is significant in the appellant's submission that the substantial shortfall is an objective fact that indicates that the respondent has not met the residency requirements during the relevant period. The respondent provided little, if any, evidence regarding her own activities in Canada during the relevant time period. The respondent did not demonstrate exceptional circumstances that demonstrated a substantial and permanent attachment to the Canadian community. In other words, she was more attached to her family than she was to Canada. The appellant further notes that it is plain and evident that the respondent may not have established a mode of living in Canada, as she had left nine days after the date of her entry to Canada as a landed immigrant in order to continue her university studies in Australia.
[7] Citizenship applications made by students who have studied or are studying outside Canada pose certain difficulties depending on when they file their citizenship application. In Re Koo, supra, Reed, J. noted that the law should be applied equally to all and the qualities of the individual as a potential citizen should not affect the interpretation of the statute. The test then is whether Canada is the country in which he or she has centralised his or her mode of existence or where he or she normally lives. In Re Koo, supra, at page 293, Reed J. listed six questions which can be asked to assist in making these determinations:
| (1) was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship; |
| (2) where are the applicant's immediate family and dependants (and extended family) resident; |
| (3) does the pattern of physical presence in Canada indicate a returning home or merely visiting the country; |
| (4) what is the extent of the physical absences - if an applicant is only a few days short of the 1,095 day total it is easier to find deemed residence than if those absences are extensive; |
| (5) is the physical absence caused by a clearly temporary situation such as employment as a missionary abroad, following a course of study abroad as a student, accepting temporary employment abroad, accompanying a spouse who has accepted temporary employment abroad; |
| (6) what is the quality of the connection with Canada: is it more substantial than that which exists with any other country? |
[8] Physical presence is a key factor which must be considered by the Court in making a finding as to whether an applicant meets the Act's requirements for residence. A lack of physical presence does weigh against a grant of citizenship. For absences to be considered temporary and therefore included, there must be other indicia of residence and this is the primary purpose of the questions posed in Re Koo, supra, by Reed. J.
[9] In my opinion, where physical presence is minimal, the most important consideration is the quality of the applicant's attachment to Canada. There must be evidence to show a genuine attachment to Canada. This attachment must go beyond having only connections to family located in Canada, a Canadian driver's license or a social insurance number.
[10] There are a number of considerations which may serve to highlight this attachment. Did the respondent make substantial efforts to return to Canada during breaks? If not, why not? For example, did she return to Canada during summer breaks and obtain summer employment or do community work in Canada? In the course of those visits, did she engage in activities which would further her integration into Canadian society? For example, did she join a social club, athletic club, church group or take a course or program? Did she make a reasonable effort to determine if alternate programs existed in Canada which could satisfy her educational goals and to enrol in those programs?
[11] In summary, the respondent must establish residence in Canada in mind and in fact. She must have centralized her mode of living in Canada.
[12] The respondent landed in Canada with her family in August of 1993. Although she then had to leave Canada to resume her studies in Melbourne, she did make an effort to return to Canada during her school breaks. She made a total of five visits to Canada after leaving in August 1993. Four of the five visits were relatively long in duration, ranging between 25 and 66 days in length. However, the respondent has provided little evidence to suggest that she engaged in activities which would further her integration into Canadian society during the relevant period other than visit with her family. In addition, while the respondent did make an effort to explore the possibility of studying at U.B.C., she decided to continue her studies in Melbourne. A distinction must be made between her intention to return to Canada after her studies and become established here and her having in fact established her mode of living in Canada during the relevant period. I find that the respondent had not, on the evidence before me, centralized her mode of living in Canada. She will no doubt be a terrific citizen but she must first meet the Act's requirements.
[13] Accordingly, the appeal is allowed.
"Howard I. Wetston"
Judge
Toronto, Ontario
November 30, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-145-98
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 |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
- and -
| KIT YU HO |
DATE OF HEARING: WEDNESDAY, NOVEMBER 4, 1998
PLACE OF HEARING: VANCOUVER, BRITISH COLUMBIA
REASONS FOR ORDER BY: WETSTON, J.
DATED: MONDAY, NOVEMBER 30, 1998
APPEARANCES: Ms. Lori Jane Turner
For the Appellant
Mr. G.K. Martin
For the Respondent
Mr. W. MacEwen
Amicus Curiae
SOLICITORS OF RECORD: Morris Rosenberg
Deputy Attorney General
of Canada
For the Appellant
Lim & Co.
Barristers & Solicitors
650 W. 41st Avenue,
Suite 308
Vancouver, BC
V5Z 2M9
For the Respondent
Watson, Goepel, Maledy
Barristers & Solicitors
#1700 - 1075 W. Georgia St.,
Vancouver, BC
V6E 3C9
Amicus Curiae
FEDERAL COURT OF CANADA
Date: 19981130
Docket: T-145-98
| 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 |
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
- and -
| KIT YU HO |
REASONS FOR ORDER