Federal Court Decisions

T-1912-96

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

KENNETH KWOK HO CHUNG

Appellant.

REASONS FOR JUDGMENT

(Reasons delivered orally from the Bench

on May 28, 1997, in Vancouver, B.C.)

WETSTON J.:

     This is an appeal from a decision of the Citizenship Judge with respect to the application for Canadian citizenship of Kenneth Chung. At that time, it was found that Mr. Chung met all the requirements of the Citizenship Act except the requirement of residence.

     Under paragraph 5(1)(c) of the Act, an applicant is required to have accumulated at least three years, that is 1,095 days, of residence in Canada within the four years immediately preceding his or her application. Mr. Chung was represented in this matter before me, and an amicus curiae also appeared to assist the Court in relation to this appeal regarding citizenship.

     There was no dispute that the applicant's absences from Canada totalled approximately 842 days in the four years preceding the application, dated October 24, 1995. It would appear that Mr. Chung was only present in Canada for about 338 days.

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     Mr. Chung had enrolled at Oregon State University in a business degree program, and had attended that university for about four and a half years. That period was interrupted by an approximate one-year exchange program in Japan as part of his studies. His family were landed in Canada on July 31, 1992, and he accompanied his parents and two brothers and a sister at that time. Mr. Chung is the eldest son and is approximately 25 years of age today.

     On September 19, 1992, less than two months after his landing, Mr. Chung returned to Oregon where he had been a student at Oregon State University since 1990. He graduated from that university in March of 1995 and immediately returned to Canada in April. With some small exceptions he has been living in Canada continuously since that time and is pursuing a career as a chartered accountant. He will begin employment in that regard, as well as studies for chartered accountancy, in September of 1997.

     Counsel for the applicant referred the Court to the well-known citizenship decision of former Chief Justice Thurlow in Re Papadogiorgakis (1978), 2 F.C. 208. This decision, generally speaking, interpreted the residency and resident requirements contained in paragraph 5(1)(c) of the Citizenship Act.

     The manner by which residency is interpreted within the meaning of paragraph 5(1)(c) has clearly moved away from a literal approach, and generally has been interpreted by this Court to mean that residency may be considered by an individual who settles into or maintains or centralizes his ordinary mode of living, with all the attendant accessories in social relations, interest and conveniences, at or in the place in question. Stated somewhat differently, in fact and in mind, has the appellant established residency in Canada?

     Generally speaking, the issue of residency and the quantitative assessment of the amount of time spent in Canada must be considered in the context of whether or not the absences were temporary and/or necessary within the meaning of the law.

     The family emigrated from Hong Kong, and prior to landing in Canada Mr. Chung testified that he considered his home to be Hong Kong. After 1992 he considered his home to be Canada despite his ongoing studies at an American university.

     It was contended, in this case, that Mr. Chung came to Canada as a dependent person. Despite the fact that he was over the age of 18, it was argued that he was, nevertheless, dependent upon his family as he wished to continue with his education at an American university. During the proceeding I asked whether the reason he was in Canada was because of his family as opposed to whether he intended Canada to be his home in the sense of centralizing his ordinary mode of living here. In my opinion, in this case, those concepts are inseparable. He obviously moved with his family, landed with his family, and continued his education, I assume, supported by his family.

     I asked Mr. Chung whether he had seriously considered a Canadian university in order to enhance his connection to Canada and he suggested that there might be a problem with credits upon transfer. While he did not make considerable effort to determine whether that would be the case or not, in my opinion, failure to interrupt his university education does not necessarily mean that Mr. Chung did not, in mind or in fact, centralize his ordinary mode of living in Canada with his family.

     I note the decision of MacKay J. in Re Cheung (1990), 532 F.T.R. 245, at page 252, where he states, and I quote:

In the circumstances of this case I conclude that the appellant was admitted to Canada as a permanent resident together with her parents, that she did nothing to abandon that status and indeed did all that would ordinarily be expected of one who was still dependent upon her parents and continuing studies abroad to establish residence here with her family, that she intended to return to Canada upon completion of those studies, and this she did. In my view she was a resident in Canada within s. 5(1) of the Act from the date of her landing in October 1984, and that residence was not interrupted by her absences abroad to complete her studies.

     I also refer to the decision of Denault J. which was filed in this Court in this proceeding by the amicus curiae, Christian Antoine Khoury, [1995] F.C.J. 1518, (Q.L.) which supports and refers to the decision of Re Cheung by Mackay J.

     While other authorities were referred to the Court, I do not believe that for the purposes of this decision it is necessary for me to refer to them.

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     In conclusion, after reviewing the law, hearing the evidence and considering the facts, I conclude that the appeal of this matter with respect to the appeal of the decision of the Citizenship Judge shall be allowed.

                             Wetston J.

                    

                             J.F.C.C.

Ottawa, Ontario

June 3, 1997