Federal Court Decisions

     T-2455-96

     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

                 Benson Tang,

     Appellant.

     REASONS FOR ORDER

TEITELBAUM, J:

     This is an appeal, by means of a trial de novo, by Benson Tang, from a decision of a Citizenship Judge Alice Napier dated September 6, 1996. The said Alice Napier refused to grant the application for citizenship filed by Mr. Tang because, according to her, Mr. Tang was unable to satisfy the residence requirement of subsection 5(1)(c) of the Citizenship Act whereby an applicant is required to have accumulated at least three years (1,095 days) of residence in Canada within the four years immediately preceding his or her application.

     In her decision, the Citizenship Judge states:

I found that you met all the requirements for citizenship set out in the Citizenship Act, except for the requirement of residence. Under Subsection 5(1)(c) of the Citizenship Act, an applicant is required to have accumulated at least three years (1,095 days) of residence in Canada within the four years immediately preceding his or her application.

According to the evidence on your file and presented to me at the hearing, your absences from Canada total 657 days in the four years preceding your application for Citizenship (August 2, 1995). During this period you were physically present in Canada for only 449 days. In these circumstances, you had to satisfy me, in order to meet the residence requirements, that your absences from Canada (or at least a part of these) could be counted as a period of residence in Canada.

Federal Court precedents require that, to establish residence, an individual must show, in mind and in fact, a centralization of his or her mode of living in Canada. If such evidence is established, absences from Canada do not affect this residence as long as it is demonstrated that the individual left for a temporary purpose only and maintained in Canada some real and tangible form of residence. I have, therefore carefully examined your case to determine whether you had established residence in Canada prior to your absences such that those absences could nevertheless be counted as periods of residence.

In this regard you legally landed on July 21, 1992 accompanied by your parents and brother. Less than 2 months after your landing, on September 11, 1992 you returned to Hong Kong to terminate your undergraduate studies. In the summer of 1995 you obtained your B.A. in Tourism Management from the Hong Kong Polytechnic University. You are currently working towards a Master Degree in Tourism Policy and Management at the University of Birmingham in the United Kingdom. You stated that you are financially supporting yourself as you were awarded two scholarships. When questioned about your future plans you stated that you want to register for a Ph. D. program at the same University. You explained that you want to study in the best University and that there is none in Canada which is up to your standards. Although you stated that your wish is to come back and live in Canada with your family, the evidence points out to the contrary.

After having considered the evidence that I received both by way of testimony and documentation, I could not find that you have established a residence in Canada by virtue of a centralized mode of living in Canada.

When I considered your overall situation, I concluded that Canada is not the place where you "have a settled routine of life" or where you "regularly, normally or customarily" lived (Re: Hay & King, (T-1400-89).

     It is interesting to note that at the hearing before me, on September 24, 1997, the appellant, under oath, informed me that at the time that he was studying, he was entirely dependent on his parents both for day-to-day living expenses and tuition fees while, it appears from the Citizenship Judge's decision, Mr. Tang stated that he was financially supporting himself as he had been awarded two scholarships. It is also interesting to note that now that the appellant has finished his schooling, he is working for an airline having its head office in England but at the airline's Hong Kong office where he resides in a condominium (apartment) owned by his parents.

     In coming to her conclusion not to allow the appellant's application for citizenship, the Citizenship Judge quoted from a number of citizenship decisions of the Federal Court. I could do not better than to quote from the Citizenship Judge's decision at pages 2 and 3:

I am supported in my conclusion by the following Federal Court decisions:

In Re: Mitha (T-4832-78), Justice Cattanach stated that:

"in determining whether physical absences from Canada are for such temporary purposes as will not break the continuity of residence, there must first be a residence established and that is a matter of degree with respect to how the person settles into or maintains or centralizes his ordinary mode of living with its accessories in social relations, interests and conveniences at or in the place in question but residence should be distinguished as in ordinary speech from the field of stay or visit."

In Re: Pourghasemi (T-80-92), Justice Muldoon stated that:

"must first throw in their lot with Canadians by residing among Canadians, in Canada, during three of the preceding four years, in order to Canadianize themselves. It is not something one can do while abroad, for Canadian life and society exists only in Canada and nowhere else."

and he further stated that:

"If the candidate (for citizenship) cannot find an adequate school or university in Canada, let him or her study abroad and then come back to Canada in order to comply with the residence requirement."

In Re: Ronaasen (T-708-82), Justice J. Mahoney states that:

"While the authorities are clear that a person does not have to remain physically in Canada to maintain a Canadian residence, they are also clear that the intention to return to Canada, however firm, is not enough to establish ongoing residence. The person must also have maintained sufficient indicia of Canadian residence that it may be inferred in the circumstances that residence has been maintained and not merely intended to be resumed."

I am also supported by the following decisions: Suet Ki Amy Lee (T-520-95) and Po Ju Chen (T-2435-94).

     Counsel for the appellant submits that the Citizenship Judge erred, in that she quotes from selected cases and not from others, those submitted by counsel for my consideration.

     I would state that it is not an error for the Citizenship Judge to quote from selected cases that she is satisfied most closely contain facts as in the case before her. It is not for her to distinguish, in her decision, cases that have little or no bearing to the facts of the case before her.

     In any event, counsel for Mr. Tang submitted six cases for my consideration and which, he states, one can clearly see that the Citizenship Judge erred in her interpretation of residence.

     In the case of Kenneth Kwok Ho Chung, T-1912-96, unreported, May 28, 1997 (F.C.T.D.), the facts are that Mr. Chung's absences from Canada totalled approximately 842 days in the four years preceding his application for citizenship (657 days in case before me). Mr. Chung was present in Canada for about 338 days (444 days for Tang). Mr. Chung had enrolled at Oregon State University for about four and a half years, which period was interrupted by an approximate one year exchange program in Japan as part of his studies. Mr. Chung's family was landed in Canada on July 31, 1992.

     As in the case before me, less than two months after his landing, Mr. Chung returned to Oregon where he had been a student since 1990. Mr. Chung graduated from that University in March of 1995 and "immediately" returned to Canada and has "with some small exception" been living in Canada.

     As is apparent, this case is very different from that of Mr. Tang. I believe that Mr. Justice Wetston concluded that Mr. Chung had centralized "his ordinary mode of living in Canada with his family" because, it is apparent, Mr. Chung's family was in Canada and Mr. Chung returned to live and work in Canada after completion of his studies.

     The evidence before me is that although Mr. Tang immigrated to Canada with his father, mother and brother, on July 21, 1992, only his brother is living in the parents' home in Canada, the father still maintaining a home in Hong Kong. It is to be noted that neither parent is a Canadian citizen. I assume that this may well be because they themselves could not establish residence.

     In that the present appellant is presently living in Hong Kong where he is working, not having returned to Canada after completion of his schooling, I find it difficult to conclude that the appellant established any connection with Canada.

     I do not believe it necessary to comment on the other jurisprudence submitted as each case has its own particular facts.

     I asked the appellant why he wants his Canadian citizenship when, as a landed immigrant, his experience was he could leave Canada when he wanted to and come back when he wanted to as long as he had a returning resident's permit. His reply was "for peace of mind".

     Although "peace of mind" is a good reason to want to be a Canadian, surely being a Canadian must mean more than that. Surely wanting to be a Canadian must mean to want to take part in Canadian life, such as, to vote, to pay income taxes, etc. Perhaps, if the appellant spent more of his time in Canada he might realize that being a Canadian carries with it rights and obligations not simply one's "peace of mind".

     I don't doubt that the appellant, a well educated individual, who, on his own initiative, went to school to learn French, would make an excellent Canadian but before being able to do so, he must, at least, familiarize himself with being Canadian.

     I cannot, under the present circumstances, recommend that the Minister grant the appellant his Canadian citizenship.

     I am in total agreement with the jurisprudence as stated by the Citizenship Judge and which I have quoted.

     The appeal is denied.

                             "Max M. Teitelbaum"

                        

                                 J U D G E

OTTAWA

September 26, 1997