Date: 19990614
Docket: T-1663-98
BETWEEN:
HONG SANG TANG
Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
RICHARD A.C.J.:
[1] This is an appeal under subsection 14(5) of the Citizenship Act and section 21 of the Federal Court Act, brought on behalf of the appellant, from the decision of Citizenship Judge Glass, dated June 25, 1998, wherein the Judge did not approve the application of the appellant for a grant of Canadian citizenship under subsection 5(1) of the Citizenship Act.
[2] By her decision of June 25, 1998, the Citizenship Judge decided that the appellant had not met the residence requirement of paragraph 5(1)(c) of the Citizenship Act, as the appellant had been physically present in Canada for only 324 days. In accordance with subparagraph 5(1)(c)(i) and (ii) of the Citizenship Act, the appellant had a shortage of 771 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 her application for Canadian citizenship.
[3] The following information was before the Citizenship Judge:
| a) The appellant entered Canada on July 10, 1994 as a landed immigrant, along with his wife and two sons; |
| b) On September 1, 1994, the applicant left Canada for 101 days and remained outside of Canada until the present time with the exception of short visits; |
| c) On September 30, 1997, the appellant completed an adult application for Canadian citizenship which was received by Citizenship Registration in Sydney, Nova Scotia on November 4, 1997; |
| d) According to the information he provided, the appellant was not physically present in Canada for a minimum of three years of the four years preceding the date he signed his application for Canadian citizenship (September 30, 1993 - September 30, 1997). According to the chart provided by the appellant on page 8 of the Tribunal Record, the appellant was absent from Canada for 854 days between the date of landing (July 10, 1994) and the date of the application for Canadian citizenship; and |
| e) The Citizenship Application Review document that was before the Citizenship Judge indicated that the appellant had been credited with a total presence in Canada of 324 days, leaving his with a shortfall of the required 1095 days by 771 days. |
[4] The following evidence was given by the appellant to the Citizenship Judge:
| a) The appellant was born in Hong Kong on October 10, 1952; |
| b) The appellant was landed in Canada on July 10, 1994 with his wife and two sons. They first resided at 1468 Thames Crescent in the City of Port Coquitlam, British Columbia. At the time of landing, they applied for and obtained medical coverage, opened bank accounts, obtained driver"s licenses and obtained their social insurance numbers; |
| c) On July 28, 1994, the appellant and his family moved all of their assets from Hong Kong into their own home at 1445 Rhine Crescent in Port Coquitlam, B.C.; |
| d) The appellant has over 20 years experience as a legal executive clerk in Hong Kong before immigrating to Canada. Unfortunately, his educational background and experience would not allow him to qualify immediately as a lawyer in British Columbia under the Rules of the Law Society of British Columbia. He could not afford to undertake a 4 year full time course of study to obtain a law degree in Canada and to complete his articles so that he could be called to the Bar in British Columbia. However, the appellant could be admitted as a solicitor in England and Wales immediately after successful completion of a legal education program at the University of West of England, Bristol in the United Kingdom. It was his plan to become qualified as a solicitor in the United Kingdom and Hong Kong and obtain sufficient experience as a solicitor so that he would be qualified in British Columbia despite not having a law degree from a recognized law school; |
| e) Even before the appellant was landed in Canada, he had already enrolled at the Faculty of Law at the University of West of England, Bristol in England. On September 1, 1994, the appellant left Canada to begin his post-graduate studies in the one year full time Legal Practice Course of the Faculty of Law at the University of West of England, Bristol in the United Kingdom. This type of program is not available in Canada; |
| f) The appellant returned to Canada on December 11, 1994 to be with his family in Canada over the Christmas period. While in Canada, the appellant applied for and obtained a returning resident permit that was issued on December 28, 1994. The returning resident permit was obtained to facilitate his studies in the United Kingdom and was valid until December 1995; |
| g) The appellant periodically returned to the United Kingdom between September 1994 and September 1995 to complete his studies at the University of West of England, Bristol. The appellant was awarded a Postgraduate Diploma in Legal Practice from the University of West of England, Bristol in the United Kingdom on September 22, 1995; |
| h) The appellant was in Canada between September and December 1995 and attended a three month evening course of English for New Canadians at the Winslow Centre in Coquitlam, B.C.; |
| i) After obtaining his diploma, the appellant attended a Professional Skills course in the United Kingdom between January 18, 1996 and February 18, 1996. He was admitted as a solicitor of the Supreme Court of England and Wales on May 15, 1996. The appellant enrolled as a solicitor in Hong Kong in August 1996 to obtain sufficient post admission experience as a lawyer in order to have the opportunity to qualify in British Columbia. His enrollment in Hong Kong was conditional on his attendance at a continuing legal education course there; |
| j) The appellant joined the Hong Kong Firm of Bernard Wong & Company in order to support himself and his family and to obtain the necessary experience to allow him to pursue a legal career in Canada; and |
| k) The appellant"s wife and two children have resided almost continuously in Canada since their landing in July 1994. The appellant has filed Canadian tax returns from 1994 to 1997. His income since 1996 has averaged about $45,000 per year. The appellant has maintained active bank accounts in British Columbia since he was landed. All his other assets are in British Columbia including his principal residence, furniture and automobile. The appellant"s provincial medical coverage has been maintained since his landing. |
[5] Paragraph 5(1)(c) of the Citizenship Act sets out three criteria that the applicant for citizenship must satisfy:
| (a) lawful admission to Canada for permanent residence; |
| (b) retention of permanent residence status; and |
| (c) the accumulation of a least three years of residence in Canada within the four years immediately preceding the date of the application, as calculated under the prescribed formula set out under the paragraph. |
[6] It is only the third criterion set out in paragraph 5(1)(c) of the Citizenship Act that is in issue in this proceeding.
[7] I have reached the conclusion that the decision made by the Citizenship Judge, that the appellant did not satisfy the residency requirement of paragraph 5(1)(c) of the Act, is supported by the evidence and that the judge did not err in law in reaching that conclusion.
[8] The jurisprudence indicates that an applicant for citizenship must demonstrate by objective facts; first, that he or she had initially established a residence of his or her own in Canada at least three years preceding his or her application for Canadian citizenship and, second, that he or she has maintained his or her established residence for the requisite period of time. A mere intention to establish residence is insufficient.
[9] The appellant entered Canada on July 10, 1994 and 52 days later, on September 1, 1994, he left Canada for 101 days. During the following period, he was absent from Canada for 327 days attending a legal course in the United Kingdom and for 527 days seeking employment and working in Hong Kong.
[10] The evidence before the Citizenship Judge demonstrates that the appellant had not maintained his residence in Canada for at least three years preceding his application for Canadian citizenship, and that there was no centralization of his mode of living in Canada. The Tribunal Record indicates that the appellant was only present in Canada for 324 days during the 1095 days preceding his application for citizenship and had a shortage of 771 days with respect to meeting the three years residence requirement.
[11] Although the appellant was in Canada between September and December 1995 and attended an evening course of English, the remaining periods spent by him in Canada were of less than one month duration. Accordingly, the appellant"s absences from Canada were not temporary in nature.
[12] The appellant has not demonstrated that he maintained or centralized his ordinary mode of living in Canada. He has spent the bulk of the three years prior to his application for citizenship attending school in the United Kingdom and working in Hong Kong. His absences from Canada were for protracted periods of time, ranging from four to six months duration.
[13] The appellant intended to become a qualified solicitor in the United Kingdom and Hong Kong and obtain sufficient experience as a solicitor so that he would be qualified in British Columbia. To that end, he enrolled at a university in the United Kingdom prior to being landed in Canada.
[14] Less than two months after being landed, he left Canada to begin his post-graduate studies in a one year full time program in the United Kingdom and thereafter sought and obtained employment in Hong Kong.
[15] The fact that he obtained a driver"s license, opened bank accounts, obtained medical coverage and paid income taxes in Canada cannot satisfy the residency requirement.
[16] The appellant remains free to apply for Canadian citizenship at any time when he meets the requirements of the Act.
[17] Accordingly, the appeal is dismissed.
____________________________
Associate Chief Justice
Ottawa, Ontario
June 14, 1999