Date: 20000215
Docket: T-630-99
BETWEEN:
RONALD WING HONG YOUNG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY A.C.J.
[1] In his letter of decision dated February 11, 1999, the Citizenship Judge concluded that the applicant did not meet the residency requirement in paragraph 5 (1)(c) of the Citizenship Act. The applicant was physically present in Canada for approximately 303 of the 1,095 days required during the four-year period immediately prior to the filing of his application for citizenship. The applicant appeals this decision, pursuant to subsection 14(5) of the Act and Rule 300(c) of the Federal Court Rules, 1998.
[2] On August 16, 1994, the applicant, then 18, was landed as a permanent resident, as were his parents and sister. The family purchased a residence in Burnaby, British Columbia where the applicant resided during his stays in Canada.
[3] On August 31, 1994, the applicant left Canada to pursue his studies at the University of Pennsylvania in Philadelphia, where he obtained two Bachelor of Science degrees, one in engineering and the other in economics. His diplomas are dated August 1998.
[4] While a student at the University of Pennsylvania, the applicant returned to Canada during the 1994 and 1996 Christmas holidays. He visited relatives in Hong Kong during the 1995 and 1997 Christmas seasons. He returned to the family residence in Burnaby during the summer academic recess in 1995 and 1996. He worked in Hong Kong during the summer of 1997. He was in Canada on some six other occasions, for short stays of approximately two weeks or less each, prior to his application for citizenship on January 10, 1998.
[5] In dismissing the application for citizenship on the basis of the applicant"s failure to meet the residency criteria, the Citizenship Judge made the following comments in his letter of decision:
| You came to Canada again with your father, mother and sister and you became a Landed Immigrant on August 16, 1994. Your parents bought a home in Burnaby. You inquired about enrolling at UBC, however you were unable to attend UBC until the spring of 1995. Therefore your parents suggested that you go to the States and as a result you were admitted to the undergraduate program at the University of Pennsylvania. You continued your studies in the USA where you lived in rented accommodation. You came home from time to time to see your parents, and they kept a room for you where you stored some of your personal belongings. During your time at the University of Pennsylvania you also made several trips back to Hong Kong to see friends and relatives and to work as a summer trainee at several banks. While there you stayed at your grandmother"s home. You graduated with a Bachelor of Science Degree from the University of Pennsylvania in January 1998. |
| Until the date of your citizenship application on January 10, 1998 your were present for only 290 days leaving you 805 days short of the required 1095 days. You have actually been absent 953 days from Canada. You spent 770 days at University in the USA, 133 days working in Hong Kong, 7 days in England visiting Oxford University, and 43 days on holidays and visiting your grandfather who was in the hospital and passed away in January 1998. |
| While at the University you returned to Burnaby 8 times and spent 116 days doing volunteer work and attending undergraduate courses at UBC and 48 days with your family. You have been able to obtain a job in Canada with Keith Y. Wong & Co. and will begin work on March 1, 1999. |
...
| Unfortunately you have spent very little time in Canada and while I have no doubt that you will in time become a good Canadian citizen, the fact is you have to spend more time living in Canada and getting to know and learn what the country is all about. Once you have spent more time living and experiencing life in Canada you should reapply for Canadian citizenship. [Emphasis added.] |
[6] The applicant argues that the decision contains three factual errors which warrant this Court"s intervention. The errors suggested by the applicant have been highlighted in the extracts set out in the previous paragraph.
[7] First, the applicant notes that he was admitted to the University of Pennsylvania prior to his immigration to Canada. Accordingly, in his view, the Citizenship Judge erred in implying that the applicant enrolled at the University of Pennsylvania only after determining, while he was in Canada, that he could not attend the University of British Columbia until the spring of 1995. Even if this were an accurate inference from the decision, and I do not think it is, the issue is of little significance.
[8] Second, the Citizenship Judge noted that the applicant graduated in January 1998. This, of course, is inconsistent with the dates on the diplomas. However, because the relevant period for the consideration of the applicant"s residency in Canada ended on January 10, 1998, I am satisfied that the Judge"s notation of the month of graduation as January instead of August is not material. Similarly, his failure to note that the applicant obtained two, and not only one, Bachelor of Science degrees is of no consequence.
[9] Third, the Citizenship Judge stated that the applicant returned to Canada on eight occasions. The applicant states that he returned nine times. Again, even if the applicant were correct on the number of visits, it is clear that the Citizenship Judge understood that the applicant had been in Canada for some 300 days during the relevant period.
[10] In Papadogiorgakis, [1978] 2 F.C. 208 (T.D.), Thurlow A.C.J., as he then was, stated at pp. 213-14:
| It seems to me that the words "residence" and "resident" in paragraph 5(1)(b) of the new Citizenship Act are not as strictly limited to actual presence in Canada throughout the period as they were in the former statute but can include, as well, situations in which the person concerned has a place in Canada which is used by him during the period as a place of abode to a sufficient extent to demonstrate the reality of his residing there during the material period even though he is away from it part of the time. |
This principle was succinctly reiterated by Dubé J. in Banjeree, Re (1994), 25 Imm. L.R. (2d) 235 (F.C.T.D.) at 238: "It is the quality of attachment to Canada that is to be ascertained."
[11] In Lam, Re (1999), 164 F.T.R. 177, I considered the appropriate standard of review in citizenship appeals, in a context of two recent developments. First, with the introduction of the Federal Court Rules, 1998, citizenship appeals no longer proceed by way of trial de novo. A citizenship appeal is now dealt with as an application, pursuant to Rule 300(c). Second, Parliament is currently considering new citizenship legislation which would bring significant changes to the examination and determination of citizenship applications and this Court"s review of the resulting decisions. After noting certain objective factors that might dictate greater curial deference, I concluded that, in view of this transitional period, it would not be appropriate to depart radically from the current standard of review (at paragraph 33):
| Justice and fairness, both for the citizenship applicants and the Minister, require some continuity with respect to the standard of review while the current Act is still in force and despite the end of the de novo trials. The appropriate standard, in these circumstances, is one close to the correctness end of the spectrum. However, where citizenship judges, in clear reasons which demonstrate an understanding of the case law, properly decide that the facts satisfy their view of the statutory test in paragraph 5(1)(c), the reviewing judges ought not to substitute arbitrarily their different opinion of the residency requirement. It is to this extent that some deference is owed to the special knowledge and experience of the citizenship judge during this period of transition. [Emphasis added.] |
[12] In my view, the Citizenship Judge in this case was prepared to apply the principles in Papadogiorgakis, where the applicant had lived in Canada for some four years prior to pursuing further studies in the United States. It was open to the Citizenship Judge to question the extent of the applicant"s residence in Canada, particularly where he left for the University of Pennsylvania some two weeks after his arrival as a permanent resident and in view of his additional absences from Canada while in Hong Kong. I can find no error in the analysis of this Citizenship Judge that would warrant setting aside the decision. He expressed himself "in clear reasons which demonstrate an understanding of the case law". His statement that the applicant will likely attain citizenship after spending more time here reflects, in my view, that his first application for citizenship was filed prematurely.
[13] For these reasons, this appeal will be dismissed.
"Allan Lutfy"
A.C.J.
Ottawa, Ontario
February 15, 2000
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