Federal Court Decisions

Date: 19980105

Docket: T-2594-96

     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

     WING HANG WONG,

     Appellant

     REASONS FOR JUDGMENT

ROULEAU, J.

[1]      This is an appeal from the decision of a Citizenship Judge who denied this appellant Canadian citizenship on October 17, 1996. It was determined that Mr. Wong did not meet the residency requirement under paragraph 5(1)(c) of the Act which requires that an applicant for Canadian citizenship must have accumulated at least three years of residency in Canada within the four years immediately proceeding his or her application. The Citizenship Judge found that the appellant had only been physically present in Canada 124 days leaving him 971 days short of the required 1,095 days to meet the residency requirement.

[2]      More particularly, the Citizenship Judge determined that the appellant never lived in Canada since his landing but lived in the United States where he attended university; that the appellant only came to Canada for vacations. Finally, pursuant to section 15(1) of the Act, the Citizenship Judge did not find any grounds under sections 5(3) and 5(4) to recommend an exercise of Ministerial discretion.

[3]      The appellant appeared before me at Toronto on November 18, 1997 and the following facts were related to the Court. He was born in Hong Kong on October 29, 1973. He entered Canada on August 9, 1992, at the age of 19 years and at the time he accompanied his parents. In January that same year, he had enrolled and was attending the University of Wisconsin-Madisson in business and electrical engineering. After landing, he continued his studies in the Unites States. His enquiries revealed that had he attended a Canadian university he would have been required to do two additional years to complete his degree. He pursued summer sessions in order to accelerate his program and graduated in engineering. Because of a scarcity of jobs in the engineering field, he pursued further studies and obtained a Masters degree in Finance in December of 1995.

[4]      Having obtained his Masters degree in 1995, he then spent the next four months in Canada attempting to find employment; he produced a considerable number of rejections from financial institutions as well as other major Canadian corporations. Having had no success in securing employment in Canada he accepted employment as a trainee with Intel Corporation of California where he presently keeps an apartment. When he appeared before the Court, he was still working for Intel and had obtained a temporary work permit from United States authorities allowing him to pursue his employment in the United States.

[5]      When the family left Hong Kong, it had sold its residence and in October of 1992 purchased a home in Markham where they still reside. While attending university, he lived in dormitories on campus. He came home at every available opportunity and it was not until after graduation that he accepted employment in the United States, some four months after having made an exhaustive effort to find employment in Canada.

[6]      While at school, the appellant relied on his parents for financial support and remained a dependent. He held a valid Ontario provincial driver's licence, a health card, filed personal income tax returns in Canada and he has continued to do so even though he is employed in the United States. On each available occasion, he did return and did live with his parents; all his personal belongings came with him from Hong Kong and are located in his room at his parents' home in Markham, Ontario.

[7]      This appellant came to Canada with his parents and admittedly he spent most of his time in the United States attending school. From 1992 until he graduated in late 1995, can we consider these absences as temporary and had he centralized his mode of living in Canada? It should be remembered that this appellant had already enrolled in university in the United States prior to coming to Canada; that when his family left Hong Kong he took with him all of his personal belongings and furnished his own room in the parental home in Markham, Ontario; he returned every vacation and every opportunity that was available to him; upon graduation he spent four months seeking employment in this country to no avail; he has accepted a position in the United States as a trainee; he had to obtain a special work permit from the United States Government in order to pursue his training career; during all his years of attending university he remained a dependent of his parents.

[8]      I have thoroughly reviewed the authority of In re Papadogiorgakis (1978) 2 F.C. 208 and it is apparent from the reasoning elaborated by Thurlow, A.C.J., as he then was, that students who leave the country to pursue their studies in a foreign country should have that period of time qualify as residency. This factual situation is almost identical to the case decided by Mr. Justice Denault in Khoury, T-2502-94, where he found that someone studying in the United States after having accompanied their parents to Canada and remaining totally dependent on their parents while away in school should qualify.

[9]      The appellant in the present case satisfied me of his intention to return to Canada. He has physically and emotionally left Hong Kong, has no permanent pied-à-terre except in Canada and despite his lengthy absences his connecting link remains Canada; for these reasons the appeal is allowed. I hereby recommend to the Minister that citizenship be granted.

                                     JUDGE

OTTAWA, Ontario

January 5, 1998