Date: 19981130
Docket: T-193-98
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
WAI HONG CHAN
Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
WETSTON J:
[1] The only issue in this appeal is residence under s. 5(c) of the Citizenship Act. In the four-year period prior to her application for citizenship, Ms. Chan was in Canada only 162 days and was short 933 days in the relevant period. Ms. Chan landed in Canada on December 16, 1993, with her parents. She was a student at the University of Indiana and is stateless. Ms. Chan was a student in Pasedena, California, in 1991 and then went to the University of Indiana in 1992. She also studied at New York University in 1994-95, where she studied arts administration. Her evidence was to the effect that that type of degree was not readily available in Canada. Her parents are in Canada and she has a sister in Hong Kong.
[2] She attended school in California because her sister was already there and while a student she did not come back to Canada to visit. In other words, she was out of the country approximately 980 days. Her reason for doing so is that she wished to finish her education as soon as possible. At one point, she left the United States but went to Hong Kong where she took a human anthropology course for approximately three months as part of her university program.
[3] There is little doubt that she was a dependant student during the relevant period. Upon her return to Canada, she gave up arts administration as a result of little opportunity and poor pay in this field and joined her father"s trading company which was involved in the export of printing equipment. Upon returning to Canada she also travelled overseas to meet customers and familiarize herself with the business. It was pointed out by counsel that she had obtained two returning resident permits to Canada which he argued was an indication of her intention to return.
[4] Counsel for the appellant contended that her family settled in Canada and severed all links to Hong Kong. In the immediate 162 days prior to her application for citizenship she became very active in the church, politics and business. Upon returning to Canada, and up to the date of her application for citizenship, it is unquestionable that she became highly integrated into Canadian society. She became involved in her church, Canadian politics and charitable activities.
[5] The Minister contended that the citizenship application was premature. She applied nine months short of the four-year period under the legislation. It was also contended that she never established her residency upon landing, that she left Canada about three weeks after arriving. It was submitted that getting or obtaining returning residence permits was not enough to establish, in mind and fact, that she had centralized her mode of living in Canada. It was argued that she did not come back for 980 days and that instead of coming to Canada she completed a practicum and lived with her sister in Hong Kong.
[6] The Minister referred the Court to the decision of Rothstein J. in Canada (Secretary of State) v. Yu, [1995] F.C.J. 919 (T.D.), where he had held that the failure to establish residence at the outset was fatal to an application for citizenship. Moreover, the Minister argued that she was absent 1,017 days in the required period, and that, as far as her connection to Canada was concerned, although her parents were here, her sister was still in Hong Kong and was also educated in the United States. It was argued that she had no real connection to Canada and that she was frequently away from Canada during the relevant period. Moreover, her real connection occurred only from September 1996 onward and prior to her interview before the Citizenship Judge. It was contended that the period that she was out of the country was not in any way temporary. She made the decision to go to Indiana when she knew her parents had made the decision to come to Canada. It was also pointed out that she made no real effort to relocate or find a school in Canada. Counsel for the Minister indicated to Ms. Chan during the hearing that Concordia University in Montreal had an Arts Administration Degree program. Moreover, upon her return she did not pursue arts administration as a career. In essence, it was argued that the application for citizenship in this case was premature.
[7] Citizenship applications made by students who have studied or are studying outside Canada pose certain difficulties depending on when they file their citizenship application. In Re Koo, supra, Reed, J. noted that the law should be applied equally to all and the qualities of the individual as a potential citizen should not affect the interpretation of the statute. The test then is whether Canada is the country in which he or she has centralised his or her mode of existence or where he or she normally lives. In Re Koo, supra, at page 293, Reed J. listed six questions which can be asked to assist in making these determinations:
| (1) was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship; |
| (2) where are the applicant's immediate family and dependants (and extended family) resident; |
| (3) does the pattern of physical presence in Canada indicate a returning home or merely visiting the country; |
| (4) what is the extent of the physical absences - if an applicant is only a few days short of the 1,095 day total it is easier to find deemed residence than if those absences are extensive; |
| (5) 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; |
| (6) what is the quality of the connection with Canada: is it more substantial than that which exists with any other country? |
[8] Physical presence is a key factor which must be considered by the Court in making a finding as to whether an applicant meets the Act's requirements for residence. A lack of physical presence does weigh against a grant of citizenship. For absences to be considered temporary and therefore included, there must be other indicia of residence and this is the primary purpose of the questions posed in Re Koo, supra, by Reed. J.
[9] In my opinion, where physical presence is minimal, the most important consideration is the quality of the applicant's attachment to Canada. There must be evidence to show a genuine attachment to Canada. This attachment must go beyond having only connections to family located in Canada, a Canadian driver's license or a social insurance number.
[10] There are a number of considerations which may serve to highlight this attachment. Did she make substantial efforts to return to Canada during breaks? If not, why not? For example, did she return to Canada during summer breaks and obtain summer employment or do community work in Canada? In the course of those visits, did she engage in activities which would further her integration into Canadian society? For example, did she join a social club, athletic club, church group or take a course or program? Did she make a reasonable effort to determine if alternate programs existed in Canada which could satisfy her educational goals and to enrol in those programs?
[11] In summary, the appellant must establish residence in Canada in mind and in fact. She must have centralized her mode of living in Canada.
[12] I agree with the respondent that the application is premature. Obviously, Ms. Chan will make an excellent citizen but prior to becoming a citizen she must meet the requirements of the Act. She made little or no effort to return to Canada during her education. She became extremely involved in Canadian society prior to her application which was at least 9 months short of the period which she could have relied upon. She made no effort to determine if she could pursue her education in Canada. She has relied on her U.S. education for political and charitable work but has pursued another unrelated career in the family business.
[13] In brief, her application was premature and I am satisfied that she has not centralized her mode of living in Canada during the relevant period. Without doubt Ms. Chan will be a splendid Canadian citizen but she must first fulfill the requirements of the Act. The appeal shall be dismissed.
"Howard I. Wetston"
Judge
Toronto, Ontario
November 30, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-193-98
| 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 MATTER OF |
WAI HONG CHAN
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: WEDNESDAY, NOVEMBER 4, 1998
PLACE OF HEARING: VANCOUVER, BRITISH COLUMBIA
REASONS FOR ORDER BY: WETSTON, J.
DATED: MONDAY, NOVEMBER 30, 1998
APPEARANCES: Mr. A. Wlodyka
For the Appellant
Ms. E. Pech
For the Respondent
SOLICITORS OF RECORD:
Lawrence Wong and Associates
| Barristers & Soliticors |
| Suite 600, 2695 Granville Street |
| Vancouver, BC |
| V6H 3H4 |
For the Appellant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19981130
Docket: T-193-98
| 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 |
WAI HONG CHAN
- and -
THE MINISTER OF CITIZENSHIP
| AND IMMIGRATION |
REASONS FOR ORDER