Date: 19990428
Docket: T-1524-98
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
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
- and -
FAI SOPHIA LAM
Respondent
REASONS FOR JUDGMENT
SIMPSON J.
[1] This is an appeal by way of application from a decision of the Citizenship Judge dated June 4, 1998, in which he approved a grant of Canadian citizenship to Ms. Fai Sophia Lam (the "Respondent"). The Minister of Citizenship and Immigration (the "Minister") appeals this decision under Rule 300(c) of the Federal Court Rules, 1998, and section 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 (the "Act") on the basis that the Citizenship Judge erred in finding that the Respondent met the residency requirements in section 5(1)(c) of the Act. That section provides:
| Grant of Citizenship |
| 5. (1) The Minister shall grant citizenship to any person who |
| ... |
| (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; ... |
THE FACTS
[2] The Respondent is a young woman who, at the time she entered Canada with her family on March 26, 1994, was approximately 22 years of age. She was accompanied by her parents and her brother and sister. She remained in Canada for only ten days. Then, on April 5, 1994, she returned to school in the United States to a course of study which she had commenced before her family moved to Canada. The record indicates that the Respondent remained in the United States from April 5, 1994 to June 12, 1995. However, the Citizenship Judge's reasons refer to the fact that the Respondent came to Canada during holidays while she was at school in the United States. As there was no evidence in the record to support this finding, counsel for the Respondent asked leave to have the Respondent give evidence. With the consent of counsel for the Minister, the Respondent was permitted to give viva voce evidence on this issue.
[3] The Respondent testified that, when she finished the 1994 spring term, she came back to Canada in June 1994 and stayed in Canada for approximately two months. During that period she resided with her family at their home in Toronto. She did not take a summer job. She also testified that she returned to her U.S. studies on or about August 1, 1994, and stayed in the United States without further visits to Canada until her return on June 12, 1995.
[4] In considering the veracity of this evidence, I am mindful that, while in the U.S., the Respondent studied for a business administration degree with a major in production and operations management. Given her level of education, I find it hard to believe that, on both her residency questionnaire and her application for citizenship, she made no mention of her two-month summer vacation in Canada in 1994. These documents both contradict her oral evidence. I also found it surprising that she had no documentary proof of a border crossing in either direction at the time she came home for the 1994 summer visit. She explained this on the extraordinary basis that the United States/Canada border is not an "international" border. Finally, her evidence was not given in a forthright manner. She prefaced virtually all her important statements by saying that events "probably" happened. In all these circumstances, I do not accept the Respondent's evidence that she spent two months in Canada in the summer of 1994.
[5] There is no issue that, after her return from school on June 12, 1995, the Respondent spent five days in Canada and then went on a pleasure trip to Hong Kong for four months, from June 16, 1995 to October 10, 1995, a total of 116 days. During this time she lived with her aunt. The Respondent returned to Canada for a period of six months on October 10, 1995. During this, her first substantial period in Canada, the Respondent took a job in Scarborough as a salesperson in a cosmetics boutique. This job was at the minimum wage and bore no relation to her educational qualifications. In this period, she also established her own bank account at the CIBC and obtained a CIBC Visa card.
[6] In March 1996, the Respondent travelled to Hong Kong a second time and stayed with her aunt for 92 days. She then returned to Canada on June 30, 1996, and remained here for more than one year. While in Canada, the Respondent shopped, went to movie theatres and a fitness centre, and patronized video stores. She took her cat to the veterinarian and attended medical appointments with her family physician. As well, she joined the University of Toronto library, Costco Wholesale, and the Women's International Bowling Congress. She also worked at two sales positions at which she again earned the minimum wage. The second position ended in July 1997 and, on August 8th, the Respondent left once more for Hong Kong. However, on June 18, 1997, before her departure, she applied for Canadian citizenship.
[7] Against this background, my task is to assess whether the Citizenship Judge correctly1 concluded that the Respondent met the residency requirement in section 5(1)(c) of the Act. The relevant period for the assessment is the four years prior to June 18, 1997 (the "Period"). The Period therefore commences at June 18, 1993. In the Period, the Act requires an applicant to be resident for three years or 1095 days. In this case, the Respondent was out of Canada for 561 of the 1095 days she was obliged to reside here. The question therefore is whether the Respondent can be said to have been a resident when there was no physical presence to support 561 days of her residency claim. To decide this point, I must look at her actual pattern of behaviour to see whether I can conclude that she both centralized her life in Canada and maintained that status during 1095 days in the Period.
[8] The Citizenship Judge relied on the case of Papadogiorgakis, [1978] 2 F.C. 208 (T.D.). However, in my view, it is a case which presented an exceptional situation and therefore should be confined to its facts. In that case, a student who had almost no physical presence in Canada during the relevant four-year assessment period, had lived here for four prior years and had established a centralized mode of living in Canada prior to departing for study abroad. Further, during his absence he maintained a Canadian residence, returned regularly, and took most of his holidays in Canada.
[9] 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.
[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.
[11] Against this background, I note that the Respondent did not establish herself as a resident before she initially left Canada. She was only here for ten days. As well, she did not return during the 1994-5 school year whenever possible. I have concluded that she did not return in the summer of 1994, and there is no evidence of trips to Canada at the Thanksgiving, Christmas/New Year, or President's Day school breaks. As well, when school ended, she returned to Canada for only five days and then left for almost four months in Hong Kong. In my view, the Respondent did not even begin to establish a Canadian residence until her return from Hong Kong on October 10, 1995. However, this period of residence lasted only six months. Thereafter, she left again for three months in Hong Kong before her final year in Canada.
CONCLUSION
[12] In these circumstances, the Papadogiorgakis case does not apply and the Respondent's application for citizenship was premature. The Minister's appeal is therefore allowed.
(Sgd.) "Sandra J. Simpson"
Judge
Vancouver, British Columbia
April 28, 1999
NAMES OF COUNSEL AND SOLICITORS OF RECORD
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
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
- and -
FAI SOPHIA LAM
Respondent
COURT NO.: T-1524-98
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 23, 1999
REASONS FOR JUDGMENT: SIMPSON, J.
DATED: April 28, 1999
APPEARANCES:
Mr. Stephen H. Gold for Applicant
Mr. Edward F. Hung for Respondent
Mr. Peter K. Large for amicus curiae
SOLICITORS OF RECORD:
Mr. Morris Rosenberg for Applicant
Deputy Attorney General of Canada
E.F. Hung for Respondent
Toronto, Ontario
Peter K. Large for amicus curiae
Toronto, Ontario
__________________1 The following recent decisions of this Court have held that correctness is the appropriate standard of review: Kit May Phoebe Lam v. Minister of Citizenship and Immigration, [1999] F.C.J. No. 410 (T.D.), Lutfy J.; Doru-Octavian Dumitra v. Minister of Citizenship and Immigration (unreported, T-1638-98, March 31, 1999, F.C.T.D., Reed J.)