T-1770-96
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
SHUN YIU TAI,
Appellant
REASONS FOR ORDER
ROULEAU, J.
This is an appeal from the decision of a Citizenship Judge who denied this appellant Canadian citizenship on June 13, 1996. It was determined that Mr. Tai did not meet the residency requirement under paragraph 5(1)(c) of the Act which stipulates that an applicant for Canadian citizenship must have accumulated at least three years of residency in Canada within the four years immediately proceeding his or her application. The Citizenship Judge found that the appellant had only been physically present in Canada 669 days leaving him 326 days short of the required 1,095 days to meet the residency requirement.
At the hearing, the Citizenship Judge considered the appellant's absences which were to attend school abroad. In her opinion, becoming "Canadianized" can not be accomplished abroad by relying on Muldoon J. in John Ting Min Hui.
In his notice of Appeal the appellant submits as follows:
| 1. The Learned Judge erred in failing to find that I have resided in Canada for 1,095 days under paragraph 5(1)(c) as that section is properly interpreted under Canadian law and jurisprudence. |
| 2. Upon such other grounds as counsel may advise. |
The appellant was born in Hong Kong on January 5, 1978. He was granted permanent resident status in Canada July 19, 1992, the same day that he arrived with his family. From the date of his arrival, this claimant attended Killarney Secondary School in Vancouver and was part of the "English as a second language" program. From September 21, 1994 to August 1, 1995, then from August 20, 1995 to November 1, 1995, the appellant attended Morrison Hill Technical Institute, in Hong Kong, electrical technician studies. The appellant has provided transcripts and confirmation of his enrollment at both schools.
At the hearing with the Citizenship Judge, the applicant indicated that he never applied to attend a post-secondary school in Canada, but intended to only after he would have finished his schooling in Hong Kong. The applicant also mentioned, that during his summer vacation from his school year in Hong Kong, he had not worked in Canada.
However, while away at school, the appellant maintained a bank account in Canada which was opened on July 20, 1992. The appellant also maintained a valid B.C. driver's licence and had a life insurance policy with Canada Life since July 4, 1992. Furthermore, he continued to be covered under the B.C. Health Plan under his parents' registration number between October 1, 1994 to September 30, 1996. Finally, the appellant gives his parents' address in Canada as his permanent address.
Full-time physical presence in Canada is not an essential residential requirement pursuant 5(1)(c) of the Act as established by Thurlow A.C.J. (as he then was) in Papadogiorgakis.1 Furthermore, in Re Koo2, Justice Reed decided that in order to establish whether an applicant has met the residency requirement, it must be determined whether the applicant has centralized his or her mode of existence. Justice Reed formulated six factors which can assist to such a determination. In particular to the case at bar is the following factor:
| "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" |
[our emphasis]
As stated in both Ismael3 and Buzacott4, in order to be allowed to have this overseas studies exemption, the appellant must establish that he or she intended to establish residence in Canada or as was stated in Chen5 "establish a tie in Canada prior departing to study".
In Ismael, MacKay J. allowed the appellant appeal on the question of residence because her absence from the country did not interrupt an established pattern of residence in Canada and there was a continued clear intention to reside and centralize her ordinary mode of living in Canada. From the evidence, MacKay J. established that the appellant maintained ties expected of a person of her age and even if she left Canada as a minor, this did not bar her as having established residence in Canada.
In the case at bar, the circumstances of the appellant are quite similar to those of the appellant in Ismael. This appellant arrived in Canada accompanied by his parents and his sister when he was approximately 14 years of age. Upon arrival, the parents purchased a home in Vancouver which they still own and occupy today. Shortly after his arrival, he enrolled in Killarney Secondary School which he attended for two years and completed the equivalent of Grade 10. While a student there, he was also taking English as a second language. Advancing in years, his father felt that he was not going to be able to maintain sufficient academic standards and was getting further and further behind the schoolmates of his own age. Since it was his intention to eventually study engineering, it was felt it would be more advantageous for him to return to school in Hong Kong to complete technical training in engineering which would allow him eventually to enroll in engineering in Canada. He then attended Morrisson Hill Technical Institute in the Department of Electronic Engineering from which he graduated in June of 1997 and completed the equivalence of Grade 12. Throughout this time he maintained his Canadian address and resided with his grandfather who still was a citizen of Hong Kong. On two occasions, once in August of 1995 and again in August of 1996, he received from Canadian authorities in Hong Kong valid residential return permits.
When asked why he did not return to Canada in the Spring of 1997 when terminating his schooling, he advised that his father was suffering from terminal cancer of the kidney and that he remained there to help look after him since his father had also moved to his grandfather's home. This is confirmed by letters from the treating hospitals in which it is indicated that the father is still undergoing cancer treatment and that he should not entertain any extended travel.
In the present case, Mr. Tai remained in Canada from July 19, 1992 to July 9, 1993. He then vacationed in Hong Kong until August 24, 1993. He remained in Canada until September of 1994 and returned at the end of his school year on August 1, 1995. He remained in Canada for approximately 20 days and again departed on August 20, 1995.
A careful reading of the Citizenship Judge's decision satisfied me that there was some confusion in her interpretation of the existing jurisprudence. It should be noted that on the second page of her decision she wrote the following:
| After interviewing you and reviewing the documentation on file, I have no doubt that it is your intention to make Canada your family home. |
In light of this determination as well as my findings; here we have an appellant that arrived at approximately the age of 14, spent his first two years in high school in Vancouver and was also taking English as a second language; he returned to Hong Kong for what his father felt would be more advantageous for him in order to obtain some kind of certificate or degree since he was falling behind his fellow students; he remained in Hong Kong during the summer of 1996 and 1997 because of the illness of his father who is undergoing cancer treatment; he resided with his grandfather while attending school. He continuously gave his residence address as Vancouver.
I am satisfied that the physical absence was caused by a temporary situation; that the absences were justified and his conduct would not be such as to interrupt his residency; that there was a continued clear intention to reside and centralize his ordinary mode of living in Canada.
For these reasons, I hereby allow this appeal.
(Sgd.) "P. Rouleau"
Judge
Vancouver, British Columbia
October 9, 1997
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| 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 MATER OF
SHUN YIU TAI
COURT NO.: T-1770-96
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: October 3, 1997
REASONS FOR ORDER OF ROULEAU, J.
dated October 9, 1997
APPEARANCES:
Mr. Wlodyka for Appellant
Ms. Julie Fisher for Amicus Curiae
SOLICITORS OF RECORD:
Wong & Associates
Vancouver, BC for Appellant
Watson, Goepel, Maledy
Vancouver, BC for Amicus Curiae
__________________
Re Papadogiorgakis 1 (1978) 2 F.C. 208.
3Re Ismael (1992), 3 F.C. 381 (F.C.T.D.).