Date: 20020816
Docket: T-1954-00
Neutral Citation: 2002 FCT 875
Ottawa, Ontario, this 16th day of August 2002
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
SHIRLEY VAI TING
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an appeal by the Minister of Citizenship and Immigration from the decision of Citizenship Judge R. Bonnisteel recommending the grant of citizenship to Shirley V. Ting. The Minister's appeal arises from the fact that in the four years preceding her application for citizenship, Ms. Ting spent a total of 318 days in Canada, considerably less than the 1095 days required by paragraph 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29. In the same period of time, she was absent from Canada for 1142 days.
[2] This is what the Citizenship Judge wrote in approving her application:
In regard to Shirley Ting....file no. 1818371
Smith
While Ms. Ting has been out of the country for a considerable length of time, more time than she has spent here, I believe there have been extenuating circumstances.
She was enrolled in college in the U.S. in1993 when her parents came to Canada and made the family home in Scarborough in 1994. This then became her home where she lived and had roots in the community when she was not at school. Health card, drivers license, income tax, doctor, dentist, etc., Wanting to pursue a career in architecture she applied, but was not accepted at the University of Toronto because her grade 12 U.S. was not recognized without her O.A.C. She was however accepted at Notre Dame University in Indiana where she began her studies. This is a world class architectural facility and included special courses in Rome Italy. Before graduation she attempted to get her internship here in Canada, but after many applications she was forced to accept one at Eric J. Smith architects in New York City.....which accounts for her added absences.
While in University she lived on campus, in dormitories. Her only home was with her parents in Canada. Her room in her parents home was maintained during all this time, books, clothes, and other assets remained here, and she came home as often as she could for holidays, school vacations etc. Her only other absences were to visit her old gandparents in the Philippines. She never considered any other place home except her residence here with her parents.
Despite the number of days out of Canada, this was the only home she had or related to. Her absences were in the main for educational reasons.
I approve the application.
[3] According to the material in the Citizenship file, Ms. Ting was born on November 16, 1975 in the Philippines. She entered Canada on May 4, 1994 and was made a permanent resident on August 7, 1994, at the age of 18 years. The residence questionnaire which she completed for the purposes of her citizenship application shows her periods of absence from Canada commencing May 1996, notwithstanding the instructions which ask that she account for her periods of absence since entry. Consequently, information as to her residence in Canada from May 1994 to May 1996 must be gleaned from the other material on the file.
[4] A Certificate of Eligibility for Non-immigrant Student issued by the U.S. Immigration and Naturalization Service shows that she was accepted into the Architecture program at Notre Dame University no later April 29, 1993. The same document appears to authorize her admission to the United States as a student from August 1993 for a five year program in Architecture at Notre Dame University, Indiana. A photocopy of Ms. Ting's passport shows an entry stamp by U.S. Immigration dated August 22, 1993. Her transcripts show her in attendance at Notre Dame commencing in the fall of 1993. Ms. Ting obtained a series of Returning Resident Permits to allow her to return to Canada from the United States. The first of these was issued on September 30, 1994. She was issued a temporary Driver's license by the Province of Ontario on July 5, 1994. A form from the Ontario Ministry of Health shows that her health insurance started on November 7, 1994.
[5] Appendix A to the Residence Questionnaire which she completed at the request of the Citizenship authorities shows that left Canada to resume her studies in January 1996 and was absent from Canada for the school terms until she graduated in May 1998. She spent her Christmas holidays in 1996-1997 and 1997-1998 in the Philippines, as well as the bulk of her summer holidays in 1997 and 1998.
[6] Upon returning from her summer vacation in the Philippines in August 1998, Ms. Ting commenced her internship with an architectural firm in New-York in September 1998. She was next in Canada for 4 days in April 1999, and 8 days in June 1999. Ms. Ting then left for the Philippines on November 26, 1999, and returned on December 30, 1999, the date of her application for citizenship.
[7] This case bears a remarkable similarity to Chan v. Canada, 2002 FCT 270, [2002] F.C.J. No. 376 (QL), an appeal by an unsuccessful citizenship applicant. Like Ms. Ting, Ms. Chan was already enrolled in architectural studies at an american institution at the time of her landing. Ms. Chan was 19 years old at the time of landing. The details of Ms. Chan's activities in the immediate post landing period were not clear and, like Ms. Ting, she left Canada to resume her studies shortly after landing in Canada. Ms. Chan took the position that she was required to study in the United States as there were no equivalent programs in Canada, whereas Ms. Ting says that she could not get into the program at the University of Toronto. Both had the various objective indicia of presence in Canada, driver's licenses, health cards, bank accounts etc. Both women applied for citizenship immediately upon their return to Canada from abroad.
[8] The issue in Chan, supra, as it is here, is not the maintenance of residence while in a program of studies outside Canada, but the establishment of residence in the first instance. I can do no better than to repeat what I said in that case as to the question of establishment of residence:
[para10] This issue was considered by the Cattanach J. in Re Pattni, [1980] F.C.J. No. 1017 where the learned judge held as follows:
[35] In order that physical absences from Canada may count as residence in Canada an applicant must first have established a residence in Canada.
[36] In Re Perviz Mitha, [1979] F.C.J. No. 501, decided by myself on June 1, 1979 I had occasion to say this:
It seems to me that in determining whether physical absences from Canada are for such temporary purpose as will not break the continuity of residence there must first be a "residence" established and that is a matter of degree with respect to how the person "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" but residence should be distinguished as in ordinary speech.
[para11] See also Canada (Secretary of State) v. Yu, [1995] F.C.J. 919 (T.D.), a decision of Rothstein J. (as he then was) which holds that a failure to establish residence is fatal to an application for citizenship.
[para12] Another case which raised the same issue in the context of a student like the applicant is Canada (Minister of Citizenship and Immigration) v. Lam, [1999] F.C.J. No. 651 where the applicant, who was 22 years old at the time, accompanied her parents to Canada for the purpose of being landed and then returned to her studies in the United States.She returned to Canada on occasion as well as holidaying in Hong Kong. She applied for citizenship and was found to be well short of the 1095 required days of residence. Simpson J. said this about the question of establishing residence:
[10] 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.
[para13] The same issue arose again in Chan v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No.1796 where Wetston J. also had before him an applicant who was a student at the time of landing. This is what he said about establishing residence:
[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.
[9] In the present case, the evidence as to degree of attachment is slight. There is essentially no information as to the post landing period, but it is a matter of inference that within one month of landing (and within 4 months of entry), the applicant would have returned to her course of studies at Notre Dame University. The evidence is that during the statutory period, Ms. Ting spent the Christmas holidays in the Philippines in 1996, 1997 and 1999. She spent approximately half of her summer holidays in the Philippines in 1997 and 1998. The only evidence of any involvement in any Canadian activity is a receipt for 16 hours of Japanese lessons in July 1996. I can only conclude that this is a case of an individual returning to Canada to visit family, in the same way as she travelled to the Philippines to visit family there.
[10] The Citizenship Judge erred in not addressing his mind to the question of establishment of residence, before going on to consider whether residence was maintained.
[11] There are two points which should be made in connection with student applications such as this one, and that of Ms. Chan. The first is that the facts of Re Papadogiorgakis, [1978] 2 F.C. 208 do not support applications such as these. Papadogiorgakis was physically resident in Canada from September 5, 1970 to January 28, 1976 before he left for studies in the United States. Had he applied for citizenship before he began his studies in the United States, he would have met the residence requirement on the strength on his physical presence in Canada. His was truly a case of a person with a strong attachment to Canada, and a lengthy period of presence in Canada before his departure for studies abroad. Consequently, Padadogiorgakis is not authority for the blanket proposition that time spent studying abroad is ipso facto constructive residence in Canada.
[12] The second and more important point is that the dismissal of this application does not mean that Canada has no interest in granting citizenship to candidates such as Ms. Ting whose ability to make a contribution to Canadian society is undoubted. Canada has a great interest in welcoming young people like her into the community of Canadians. But there is a difference between acquiring the right to live in Canada and earning the right to citizenship. Becoming a citizen is an active process which requires the engagement of the candidate in Canadian society. It is not a mere adornment which accrues to the absent. I have no doubt that Ms. Ting will make a fine Canadian and I encourage her to apply again when the time is ripe.
ORDER
The appeal is allowed.
"J.D. Denis Pelletier"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-1954-00
STYLE OF CAUSE: The Minister of Citizenship and Immigration v.
Shirley Vai Ting
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 27, 2001
REASONS FOR ORDER AND ORDER OF: The Honorable Mr. Pelletier
DATED: August 16, 2002
APPEARANCES :
Ms. Ann Margaret Oberst FOR APPLICANT
Ms. Shirley Vai Ting ON HER OWN BEHALF
SOLICITORS OF RECORD :
Mr. Morris Rosenberg FOR APPLICANT
Deputy Attorney General of Canada
Ottawa, Ontario
Ms. Shirley Vai Ting ON HER OWN BEHALF