Date: 20000316
Docket: T-955-99
BETWEEN:
MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
| - and - |
GARY MAN LAI SHIU
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL, J.:
[1] The question in this appeal is whether, in the decision of April 5, 1999, the Citizenship Judge erred in approving the Respondent's application for Canadian citizenship pursuant to s.5(1) of the Citizenship Act (the "Act"). 1 In my opinion, 2 the answer to this question lies in whether the test cited by Thurlow, J. in Re Papadogiorgakis [1978] 2 F.C. 208 at 214 was applied as follows:
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.
[2] In the present case the undisputed facts are as follows:
| 1. Gary Man Lai Shiu was born in Hong Kong on February 2, 1971. He is a citizen of Hong Kong. |
| 2. The Respondent entered Canada with his family on August 15, 1994 and was lawfully admitted for permanent residence on that date. Apart from a brief visit to Hong Kong for a vacation from December 21, 1994 to January 11, 1995 the Respondent has not resided in or returned to the country of his birth since first entering Canada. |
| 3. The Respondent submitted an application for Canadian citizenship on January 12, 1998. |
| 4. The Respondent's disclosed occupation in his Record of Landing in 1994 was identified as "Student". In fact, prior to entering Canada in 1994, the Respondent had been enrolled in a 5 year program pursuing a PhD in Physics at Cornell University in New York State, U.S.A. In the U.S. he held a student visa. |
| 5. Apart from the brief vacation to Hong Kong referenced above, the Respondent took a 6 day trip to Netherlands for a physics conference in 1997. The Respondent's remaining absences from Canada all related to his continued studies at Cornell University. |
| 6. The Respondent was absent from Canada 1120 days between the time of his original departure on August 25, 1994 and December 16, 1997. He was however physically present in Canada for 126 days during the relevant period, returning back home to Canada whenever time permitted. |
| 7. The Respondent returned to Canada on the following dates: |
| August 15 - August 25, 1994 |
| August 7 - August 24, 1995 |
| December 19, 1995 - January 16, 1996 |
| August 19 - August 28, 1996 |
| December 20, 1996 - January 14, 1997 |
| July 22 - July 30, 1997 |
| December 16, 1997 - January 15, 1998 |
| coming home because he enjoyed the environment in Canada and to see his family and friends. |
| 8. Despite living in the U.S. while attending school, the Respondent obtained and maintained a bank account with an Edmonton, Alberta branch of the Hong Kong Bank of Canada; an Alberta driver's license; an Alberta Health Care account; and a Social Insurance Number. He also used his Edmonton home address (his parent's residence) as his mailing address for all important letters and documents. He also stored furniture in Canada while away. 3 |
[3] In addition, an important fact in the present case is that, after the Respondent's initial entry into Canada on August 15, 1994, he only remained in Canada for ten days before leaving for the United States to continue his studies.
[4] On the basis of the above stated facts, the decision of the Citizenship Judge under review is only as follows: "Approved on basis of information provided".
[5] On the basis of Re Papadogiorgakis, it is clear that to meet the residency requirement in s.5(c) of the Act a person must have an "established home" in Canada and not cease to be a resident there. However, also according to Thurlow, J.'s reasoning, the 1095 days of residence in Canada prior to the date of a citizenship application required by s.5(c) of the Act is not a rigid standard.
[6] A range of judicial opinion exists as to the evidence necessary to prove the establishment of a home in Canada for an independent adult such as the Respondent. 4
[7] In Re Lamb [1999] F.C.J. 651 [F.C.T.D.] (decided April 28, 1999), Simpson, J. decided, with respect to an applicant who, after landing, spent only ten days in Canada before returning to school in the United States, that residence had not been established, and in so doing, stated as follows:
The Papadogiorgakis decision indicates that the Court may treat a student as a resident, despite substantial physical absence, if that student established and maintained residence in Canada by centralizing his or her mode of living in Canada, and was abroad only for temporary studies and returned frequently.
However, Papadogiorgakis is not authority for the proposition that a student can come to Canada for a short time, not establish initial residence, then spend long periods of study and vacation abroad and, on that basis, expect to meet the residence requirement for Canadian citizenship. I should observe that establishing residence is not only a matter of assembling the usual paperwork associated with residence (health card, social insurance card, bank card, tax returns, library card, driver's license, etc.) In my view, some effort to integrate into and participate in Canadian society is also necessary. This could occur in a workplace, in a volunteer group, or in a social or religious activity, to name just a few possibilities.
[8] The decision in Re Lamb is consistent with Gibson, J.'s decision in Re Chuang [1999] F.C.J. 509 (decided April 15, 1999), which, with respect to an applicant student who remained in Canada only 10 days after becoming a permanent resident, cited, with approval, the following quotation from the decision of Wetston, J. in Re Shang [1998] F.C.J. No. 112 [F.C.T.D.]:
Can it be said that the appellant is a person who in mind and fact has centralized her ordinary mode of living with its accessories in social relations, interests and conveniences in Canada? The answer to this question is often most difficult in student cases. However, in this case despite being a student, I am not satisfied that the appellant effectively established residence in Canada before making the decision to apply for Canadian citizenship. I am not satisfied that the quality of the appellant's attachment throughout her period of study and up to the date of her application for citizenship was such to qualify the time that she spent pursuing her studies as a period of residence in Canada. In my opinion, paying taxes, obtaining a social insurance number or a driver's license are insufficient indicia of aggressively pursuing integration into the Canadian community and way of life. Rather, in this case, the evidence establishes that her attachment is more to her family, who live in Toronto, rather than her attachment to Canada in and of itself.
[9] Re Shang was decided before the Citizenship Judge's decision in the present case was rendered, while Re Lamb and Re Chuang were decided after. However, the principal point made in each case is uniform: residency must be first clearly established in Canada to succeed in an application for citizenship.
[10] Thus, given the particularity of Thurlow, J.'s test in Re Papadogiorkakis, and given the interpretation of the test as cited, and given that no reasons were provided for the decision rendered by the Citizenship Judge in the present case, I am not satisified that the Citizenship Judge in the present case applied the required test. Therefore, I find the decision was made in reviewable error.
ORDER
[11] Accordingly, this appeal is allowed.
"Douglas R. Campbell"
Judge
Edmonton, Alberta,
March 16, 2000.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: T-955-99
| STYLE OF CAUSE: Minister of Citizenship and Immigration v. Gary Man Lai Shiu |
REASONS FOR ORDER AND ORDER: Campbell, J.
DATE: March 16, 2000
APPEARANCES:
W. Brad Hardstaff
Department of Justice for the Applicant
Brent W. Mielke for the Respondent
SOLICITORS OF RECORD:
Morris A. Rosenberg,
Deputy Attorney General of Canada
Ottawa, Ontario for the Applicant
Shtabsky & Tussman
Edmonton, Alberta for the Respondent
__________________
1 S.5(1) of the Citizenship Act , R.S.C. ch. C-29 reads as follows: 5. (1) The Minister shall grant citizenship to any person who (a) makes application for citizenship; (b) is eighteen years of age or over; (c) has been lawfully admitted to Canada for permanent residence, has not ceased since such admission to be a permanent resident pursuant to section 24 of the Immigration Act, and has, within the four years immediately preceding the date of his application, accumulated at least three years of residence in Canada calculated in the following manner: (i) for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and (ii) for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence; ( d) has an adequate knowledge of one of the official languages of Canada; (e) has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship; and (f) is not under a deportation order and is not the subject of a declaration by the Governor in Council made pursuant to section 20. [Emphasis added].
2 According to my interpretive findings in MCI v. Wing Tung Thomas Yeung (F.C.T.D. No. T-1256-98, rendered 3 February 1999), the issue in appeals such as the one in the present case is whether the Citizenship Judge made a reviewable error.
3 This precise is adapted from the Respondent's Memorandum of Fact and Law, Respondent's Application Record, Tab 3.
4 In re Cheung , 32 F.T.D.R. 245, MacKay, J. found that an applicant for citizenship who was wholly dependent on her parents had established residence, even though, after landing, she spent only four days in Canada and then returned to Hong Kong where she pursued her studies in medicine. As the Respondent in the present case is not in a similar situation, therefore, I find that MacKay, J.'s decision is distinguishable.