Date: 20000526
Docket: T-629-99
Ottawa, Ontario, this 26th day of May, 2000
| PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O"KEEFE |
BETWEEN:
CHEN JUNG KUO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O"KEEFE J.
[1] This is an appeal by Chen Jung Kuo ("applicant") from the decision of Citizenship Judge Wicks, dated February 15, 1999, wherein the applicant"s application for Canadian citizenship was denied on the ground that the applicant had not met the residency requirements under paragraph 5(1)(c) of the Citizenship Act, 1974-75-76, c. 108 ("Act").
[2] The applicant, originally from Taiwan, became a permanent resident of Canada on January 28, 1994. The basis for her landing was as a dependant of her father, who had been landed under the Business Immigration Program. The applicant"s two siblings had also been landed on that basis.
[3] On February 24, 1994, the applicant returned to Taiwan to complete her studies for a Bachelor"s degree, having obtained a Returning Resident Permit which was valid for one year. Upon completing her Bachelor"s degree, the applicant was accepted into New York University and began studies in the fall of 1996 in New York.
[4] The applicant was absent from Canada for the following time periods:
| From
Day/Mo/Yr
|
To
Day/Mo/Yr
|
Destination
|
Reason
|
Number of Days Absent
|
| 24/02/94
|
30/06/94
|
Taiwan
|
Studying in National
Taiwan University
|
126
|
| 24/07/94
|
25/05/95
|
Taiwan/U.S.A.
|
Studying in National
Taiwan University
|
305
|
| 17/06/95
|
20/09/95
|
Taiwan/Japan/
U.S.A.
|
Vacation
|
95
|
| 09/12/95
|
06/01/96
|
Taiwan/U.S.A.
|
Grandmother"s Funeral
|
28
|
| 10/04/96
|
20/04/96
|
U.S.A.
|
School in New York University
|
10
|
| 05/09/96
|
18/12/96
|
U.S.A.
|
Study in New York University
|
104
|
| From
Day/Mo/Yr
|
To
Day/Mo/Yr
|
Destination
|
Reason
|
Number of Days Absent
|
| 27/12/96
|
13/02/97
|
Taiwan/U.S.A.
|
Vacation
|
48
|
| 18/02/97
|
21/02/97
|
U.S.A.
|
Study in New York University
|
3
|
| 24/02/97
|
14/03/97
|
U.S.A.
|
Study in New York
University
|
18
|
| 18/03/97
|
27/03/97
|
U.S.A.
|
Study in New York
University
|
9
|
| 09/05/97
|
13/05/97
|
U.S.A.
|
Study in New York
University
|
4
|
| 06/09/97
|
09/10/97
|
U.S.A.
|
Study in New York
University
|
33
|
| 14/10/97
|
30/10/97
|
U.S.A.
|
Study in New York
University
|
16
|
| 03/11/97
|
07/11/97
|
U.S.A.
|
Study in New York
University
|
4
|
| 12/11/97
|
27/11/97
|
U.S.A.
|
Study in New York
University
|
15
|
| 30/11/97
|
19/12/97
|
U.S.A.
|
Study in New York
University
|
20
|
| 06/01/98
|
26/01/98
|
U.S.A.
|
Study in New York
University
|
20
|
| |
|
|
Total
|
848
|
| [5] The applicant also returned to Canada for the following time periods: |
| Day/Month/Year
|
Day/Month/Year
|
| 28/01/94
|
23/02/94
|
| 01/07/94
|
23/07/94
|
| 26/05/95
|
16/06/95
|
| 21/09/95
|
08/12/95
|
| 07/01/96
|
09/04/96
|
| 11/04/96
|
28/08/96
|
| 11/09/96
|
15/09/96
|
| 25/10/96
|
27/10/96
|
| 28/11/96
|
01/12/96
|
| 19/12/96
|
26/12/96
|
| 14/02/97
|
17/02/97
|
| 14/03/97
|
23/03/97
|
| 11/05/97
|
05/09/97
|
| 10/10/97
|
13/10/97
|
| 01/11/97
|
02/11/97
|
| 28/11/97
|
29/11/97
|
| 20/12/97
|
05/01/98
|
| 27/01/98
|
Now
|
| [6] The absences from Canada listed in paragraph 4 were incurred when the applicant |
was attending university in New York.
| [7] The applicant lived in a rented apartment in New York while attending university. |
| [8] The applicant"s parents acquired a house, automobile, drivers" licences and |
brought their settlers" effects to Canada. The applicant"s mother incorporated a company in Canada. In fact, the applicant"s father and sister became Canadian citizens in December, 1997 and her mother in October, 1998.
| [9] The applicant"s parents have investments in Canada. |
| [10] There was a room designated in the family home for the applicant"s use, in which |
she kept her personal belongings when she was attending university in New York.
Issue
| [11] Did the Citizenship Judge err in law and fact in determining that the applicant did |
not meet the residency requirements of subsection 5(1) of the Act?
Law
| [12] 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.
|
|
| [13] 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 the applicant"s application for citizenship. |
| [14] 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. |
| [15] In this case, the applicant was absent from Canada for 848 days in the relevant |
| time period and physically present in Canada for 612 days, thus leaving her 483 days short of the required 1,095 days of residence required by the law. |
| [16] The absences from Canada have only been counted towards the required residence |
| time of 1,095 days if the applicant has centralized his or her mode of living in Canada prior to the absences. |
| [17] 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. |
| [18] It is my opinion that the applicant in the present case did not establish a |
centralized mode of living in Canada in the 28 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 correct when she ruled that the applicant did not meet the residency requirements of paragraph 5(1)(c) of the Act.
| [19] Simply put, the applicant"s application is premature and I have no doubt that in |
the future, she will become a citizen of Canada.
| [20] The application (appeal) is therefore dismissed. |
ORDER
| [21] IT IS ORDERED that the application (appeal) is dismissed. |
"John A. O"Keefe"
J.F.C.C.
Ottawa, Ontario
May 26, 2000
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