Date: 19981126
Docket: T-2748-97
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 Judge
-and-
IN THE MATTER OF
SIU HONG GABRIEL KWAN
Appellant
REASONS FOR JUDGMENT
DENAULT J:
[1] This is an appeal from the decision of a citizenship judge denying the appellant citizenship on two grounds : he lacked adequate knowledge of Canada and of the responsibilities and privileges of citizenship, as required by paragraph 5(1)(e) of the Citizenship Act (the Act) and he failed to meet the residency requirements of paragraph 5(1)(c) given that he was absent 662 days during the relevant period, being short 433 days of the required 1095 days (3 years) of residency in Canada within the four year period preceding his application for citizenship.
[2] At the hearing of the appeal, the appellant easily answered difficult questions about Canada and the responsibilities and privileges of citizenship. This Court is satisfied that the appellant meets the requirements of paragraph 5(1)(e) of the Act.
[3] Paragraph 5(1)(c) of the Act requires that an applicant for citizenship "... has, within the four years preceding the date of his application, accumulated at least three years of residence in Canada...". It is important to note that the appellant filed his application for citizenship on December 23, 1996, barely three and one third years after he first came to Canada and was granted permanent resident status on August 15, 1993. Less than a month after being granted landed status in Canada, the appellant returned to Taiwan to pursue his studies for a B.A. until the end of January 1994. After a 5-week visit at his parents' place in Canada, he undertook undergraduate studies in psychology, in Ohio, U.S.A., from March 1994 until the end of November 1995, returning to Canada for summer and Christmas holidays. At the end of 1995, he was refused admission at McGill University where he sought admission to the Bachelor of Engineering (Mechanical Engineering) program. He was also refused by Concordia University because he lacked prerequisite courses for entry to his chosen program of study, to wit the B.Sc. or B.Eng. program. The applicant then registered at the University of Houston, Texas, U.S.A., for an M.A. There he studied from August to December 1996, the date of his application for citizenship.
[4] At the hearing of his appeal, the appellant testified that in 1996 he filed an income tax return in Quebec, that he held two bank accounts, a driver's license and a library card at the Bibliothèque de Montréal and cards for Concordia and McGill libraries. He produced a lease for his parents' place of residence in Montreal. The appellant finally argued that he maintains close contact with his family and returned to Canada as often as his studies allowed.
[5] The citizenship judge, in her decision, reminded the applicant that in order to meet the residency requirements, he had to convince her that his absences from Canada could be considered as periods of residence in Canada and that, in mind and in fact, he had centralized his mode of living in Canada. She concluded that the applicant had neither established nor maintained residency in Canada and therefore did not meet the residency requirements.
[6] It is difficult to decide whether students pursuing their studies abroad shortly after their parents have established themselves in Canada, have themselves centralized their mode of living in this country. In Re Papadogiorgakis [1978] 2 F.C. 208, a case involving a student who had decided to pursue his studies in the U.S.A., citizenship was granted despite long absences from Canada. Yet Thurlow J, before stating that physical presence in Canada was not always required in order to establish residency within the meaning of the Act, wrote (P.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". |
It is clear from these comments, as Nadon J. stated in Cheung (T-2841-96, June 10, 1998), that a person must first have established his or her home in this country before their days of absence can be computed for the purposes of the residency requirements under the Act.
[7] In the case at bar, even after hearing de novo evidence, I am convinced that the citizenship judge did not err in deciding that the applicant had failed to show that he had centralized his mode of living in Canada. Firstly, he departed for Taiwan after only 28 days in Canada. Secondly, his application for citizenship was premature : had he waited 4 full years before filing his application, he might have met the residency requirement. Thirdly, while there is evidence that the appellant, because he was refused by Canadian universities, decided to pursue graduate studies in Houston, Texas from August to December 1996, there is no evidence to suggest that such refusal compelled him to attend an American university from March 1994 to November 1995 to complete undergraduate studies which he could have completed in Canada.
[8] For these reasons, even though I am satisfied that the appellant would make an excellent citizen, I can but conclude that this appeal must be dismissed.
J.F.C.C.