Date: 20000531
Docket: T-896-98
Ottawa, Ontario, this 31st day of May, 2000
| PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O"KEEFE |
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
- and -
CHEUK WAH LEE
Respondent
REASONS FOR ORDER AND ORDER
O"KEEFE J.
[1] This is an appeal by the Minister of Citizenship and Immigration ("Minister") of the decision of Citizenship Judge J. Hong dated April 1, 1998, wherein Cheuk Wah Lee"s ("respondent") application for Canadian citizenship was approved. The Minister claims that the respondent did not meet the residency requirements of paragraph 5(1)(c) of the Citizenship Act , 1974-75-76, c. 108 ("Act"). The appeal is made pursuant to subsection 14(5) of the Act and section 21 of the Federal Court Act , R.S.C. 1985, c. F-7.
[2] The respondent, a former resident of Hong Kong, landed in Canada on May 9, 1992. Her parents had preceded her to Canada, landing on April 12, 1992. The respondent left Canada on May 25, 1992 to complete her final year of high school. She remained abroad until August 7, 1992.
[3] The respondent returned to Canada in August, 1992 for about two weeks and then went to the U.S.A. to attend university at Cornell University to obtain a Bachelor"s degree in economics and mathematics, which she obtained in May, 1996. She then enrolled in a Ph.D. (Econ.) Program at Columbia University in New York.
[4] The respondent"s absences from Canada are as follows:
| From Day/Mo/Yr |
To Day/Mo/Yr |
Destination |
Reason |
Number of Days Absent |
| 25/05/92 |
07/08/92 |
Hong Kong |
To continue final year of high school; To pack personal belongings |
74 |
| 20/08/92 |
09/10/92 |
U.S.A. |
50 |
|
| 13/10/92 |
25/11/92 |
U.S.A. |
43 |
|
| 29/11/92 |
19/12/92 |
U.S.A. |
20 |
|
| 24/01/93 |
19/03/93 |
U.S.A. |
54 |
|
| 28/03/93 |
22/05/93 |
U.S.A. |
55 |
|
| 26/05/93 |
31/05/93 |
U.S.A. |
To attend friends" commencment |
5 |
| 23/08/93 |
08/10/93 |
U.S.A. |
46 |
|
| From Day/Mo/Yr |
To Day/Mo/Yr |
Destination |
Reason |
Number of Days Absent |
| 12/10/93 |
24/11/93 |
U.S.A. |
43 |
|
| 28/11/93 |
18/12/93 |
U.S.A. |
20 |
|
| 19/01/94 |
18/03/94 |
U.S.A. |
58 |
|
| 29/03/94 |
21/05/94 |
U.S.A. |
53 |
|
| 01/07/94 |
05/07/94 |
U.S.A. |
Vacation |
4 |
| 22/08/94 |
07/10/94 |
U.S.A. |
46 |
|
| 11/10/94 |
22/10/94 |
U.S.A. |
11 |
|
| 24/10/94 |
01/11/94 |
Hong Kong |
Attend Grandfather"s funeral |
8 |
| 02/11/94 |
23/11/94 |
U.S.A. |
21 |
|
| 27/11/94 |
17/12/94 |
U.S.A. |
20 |
|
| 18/01/95 |
02/02/95 |
U.S.A. |
15 |
|
| 04/02/95 |
18/03/95 |
U.S.A. |
42 |
|
| 26/03/95 |
29/05/95 |
U.S.A. |
64 |
|
| 29/06/95 |
08/07/95 |
U.S.A. |
9 |
|
| 27/08/95 |
05/10/95 |
U.S.A. |
39 |
|
| 08/10/95 |
17/12/95 |
U.S.A. |
70 |
|
| 20/01/96 |
17/03/96 |
U.S.A. |
56 |
|
| 24/03/96 |
27/05/96 |
U.S.A. |
64 |
|
| 26/07/96 |
29/07/96 |
U.S.A. |
Vacation |
3 |
| 21/08/96 |
18/09/96 |
U.S.A. |
28 |
|
| 26/09/96 |
21/12/96 |
U.S.A. |
86 |
|
| 19/01/97 |
14/02/97 |
U.S.A. |
26 |
|
| Total |
1,133 |
| [5] The respondent did return to Canada for stays of one to two weeks. The |
respondent also had summer jobs in Canada.
| [6] The respondent applied for Canadian citizenship on February 14, 1997. |
| [7] The Citizenship Judge stated that the respondent was absent for 1,133 days (based |
on the respondent"s figures) but according to the Minister"s Memorandum of Argument, the respondent was absent from Canada in the relevant four year period for 889 days.
| [8] The respondent has attended university in the United States and resided there |
since August, 1992 in order to attend university (with the exception of visits and holidays).
| [9] In support of her application, the respondent submitted various documents |
including income tax returns, her parents" real estate documents, bank and investment statements, driver"s license, library cards and credit cards.
| [10] The respondent has her own bedroom in the family home where she keeps all of |
her belongings.
| [11] When the respondent left Canada, she obtained Returning Resident Permits. |
Issue
| [12] Did the respondent satisfy the requirements prescribed under paragraph 5(1)(c) of |
the Act that within the four years immediately preceding the date of her application she had accumulated at least three years of residence in Canada?
Law
| [13] Subsection 5(1) of the Act states: |
| 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. |
| 5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois_: a) en fait la demande; b) est âgée d'au moins dix-huit ans; c) a été légalement admise au Canada à titre de résident permanent, n'a pas depuis perdu ce titre en application de l'article 24 de la Loi sur l'immigration, et a, dans les quatre ans qui ont précédé la date de sa demande, résidé au Canada pendant au moins trois ans en tout, la durée de sa résidence étant calculée de la manière suivante_: (i) un demi-jour pour chaque jour de résidence au Canada avant son admission à titre de résident permanent, (ii) un jour pour chaque jour de résidence au Canada après son admission à titre de résident permanent; d) a une connaissance suffisante de l'une des langues officielles du Canada; e) a une connaissance suffisante du Canada et des responsabilités et avantages conférés par la citoyenneté; f) n'est pas sous le coup d'une mesure d'expulsion et n'est pas visée par une déclaration du gouverneur en conseil faite en application de l'article 20. |
| Analysis and Decision |
| [14] It is a requirement of this section of the Act that an applicant for citizenship have |
| three years (1,095 days) of residence in Canada in the four years immediately preceding the date of an applicant"s application for citizenship. |
| [15] The jurisprudence of this Court has held that in certain circumstances, periods of |
| time spent away (absences) from Canada can be counted as time to accumulate the required 1,095 days of residence. |
| [16] The respondent, according to the revised figures of the Minister, was absent from |
| Canada for 889 days in the four year period immediately preceding her application. |
| [17] The absences from Canada have only been counted towards the required residence |
| time of 1,095 days if an applicant has centralized his or her mode of living in Canada prior to the absences. |
| [18] Dube J. of this Court stated in Canada (Minister of Citizenship v. Lo (January 22, |
| 1999), Docket T-1082-98 at page 2: |
| Physical presence in Canada throughout the period is less essential where a person has in mind and fact settled into or maintained or centralized his or her own ordinary mode of living in this country. That was the case of the student in the Papadogorgakis case (supra), who had established a mode of living in Nova Scotia before going to study in the United States. |
| [4] Unfortunately such is not the case of the respondent here who, obviously, cannot have established a mode of living in Canada in only 7 days. |
| [5] Consequently her application was premature. Now that she has completed her studies and has settled in Vancouver, she may in due course make a fresh application for Canadian citizenship and undoubtedly will be successful. |
| [6] Thus the appeal of the Minister is allowed. |
| [19] It is my opinion that the respondent in the present case, did not establish a |
| centralized mode of living in Canada in the 17 days that she was in Canada before her first absence, therefore, I am not prepared to count her periods of absence from Canada |
| toward her residence requirement. As a result, the Citizenship Judge was in error when the Citizenship Judge ruled that the respondent had met the residence requirement of paragraph 5(1)(c) of the Act and granted the respondent citizenship. |
| [20] Simply put, the respondent"s application for citizenship is premature and I have |
| no doubt that in the future, she will become a citizen of Canada. |
| [21] The application (appeal) of the Minister is allowed. |
| ORDER |
| [22] IT IS ORDERED that the application (appeal) of the Minister is allowed. |
| "John A. O"Keefe" |
| J.F.C.C. |
| Ottawa, Ontario |
| May 31, 2000 |