Date: 19990112
Docket: T-997-98
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 - |
| KA PO GABRIEL LIU, |
Respondent.
REASONS FOR JUDGMENT
DUBE, J.
[1] This appeal by the Minister of Citizenship and Immigration under subsection 14(5) of the Citizenship Act (the "Act") and section 21 of the Federal Court Act stems from the decision of the Citizenship Court Judge, dated March 19, 1998 approving the application of the Respondent for a grant of Canadian citizenship under subsection 5(1) of the Act. The Citizenship Court Judge held 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 57 days and had a shortage of 1038 days with respect to meeting the minimum requirement of at least three years residence in Canada within the four years immediately preceding the date of his application for Canadian citizenship.
[2] The Respondent was born in Hong Kong on December 2, 1968. He acquired landed immigrant status in Canada on August 3, 1993 and applied for Canadian citizenship on September 28, 1996. Upon his arrival in Canada, the Respondent spent about 10 days in Toronto, then moved to Vancouver for about 12 days and spent a total of about 22 days in Canada before returning abroad to complete his medical studies. I am, of course, aware of the principles established by the Associate Chief Justice Thurlow, as he then was, in the well known case of Re: Papadogorgakis, [1978] 2 F.C. 108 at page 214:
| A person with an established home of his own in which he lives does not cease to be resident there when he leaves it for a temporary purpose whether on business or vacation or even to pursue a course of study. The fact of his family remaining there while he is away may lend support for the conclusion that he has not ceased to reside there. The conclusion may be reached, as well, even though the absence may be more or less lengthy. It is also enhanced if he returns there frequently when the opportunity to do so arises. It is, as Rand J. appears to me to be saying in the passage I have read, "chiefly a matter of the degree to which a person in mind and fact 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".". |
[3] I have generally followed that decision with reference to students who study abroad and other applicants for citizenship who must leave the country for a temporary purpose. However, in this instance, the Respondent has not established a centralized mode of living in Canada prior to his departure to pursue his university studies in Ireland. He lived with his aunt in Toronto from August 3 to August 17, 1993 and thereafter from August 17 to August 29, 1993 with his parents in Vancouver. There is no evidence that he could have maintained a centralized mode of living in Canada during that very short period.
[4] Consequently it is plain that the Citizenship Court Judge, on the face of the record, fundamentally erred in her assessment of this case. The Respondent's application for Canadian citizenship was premature. I am sure that once he is established in Canada as a medical doctor, he will become a valuable citizen.
[5] The appeal is allowed.
(Sgd.) "J.E. Dubé"
J.F.C.C.
Vancouver, British Columbia
12 January 1999
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-997-98
STYLE OF CAUSE: MCI
| v. |
| Ka Po Gabriel Liu |
PLACE OF HEARING: Vancouver, BC
REASONS FOR JUDGMENT OF THE COURT BY:
DUBE, J.
DATED: January 12, 1999
APPEARANCES BY:
| Ms. Paige Purcell for the Appellant |
| Mr. J.D. Buchan for the Respondent |
SOLICITORS OF RECORD:
| Mr. Morris Rosenberg for the Appellant |
Deputy Attorney General
of Canada
| Mr. J.D. Buchan for the Respondent |
| Cohen Buchan & Edwards |
| Richmond, BC |