Date: 19990415
Docket: T-1100-98
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
CHIA WEN CHUANG
Respondent
REASONS FOR JUDGMENT
GIBSON J.:
[1] These reasons arise out of an order of a Citizenship Judge, dated the 30th of March, 1998, wherein the learned Citizenship Judge concluded that the applicant met the residency requirements in paragraph 5(1)(c) of the Citizenship Act1. The applicant was physically present in Canada 330 of the 1,095 days of required residence, during the 4-year period immediately prior to the filing of her application for citizenship. This application is brought by the applicant (the "Minister") pursuant to subsection 14(5) of the Citizenship Act and Rule 300(c) of the Federal Court Rules, 19982.
[2] The respondent became a permanent resident of Canada on the 15th of October, 1993. She had applied to three Canadian universities to continue her studies but was rejected by all three. Within ten days of becoming a permanent resident of Canada, she left to continue her studies.
[3] During the time that the respondent continued her studies outside Canada, she lived in rented student accommodation. She returned to Canada on a regular basis, on twelve occasions, for periods varying from 1 day to a maximum of 143 days. Most of her returns to Canada were of relatively short duration. On each return to Canada she stayed in her parents' residence. At the time she completed her studies and applied for her Canadian citizenship, she remained dependent on her parents.
[4] The respondent obtained many of the passive indicia of commitment to Canada: a social insurance number; health insurance; bank accounts; a library card; and a room in her parents' home. She left most of her belongings in Canada. She only took to her student residence as much as was necessary to support her during her periods of study.
[5] In Re Papadogiorkakis3, Associate Chief Justice Thurlow, as he then was, wrote at page 214:
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A person with an established home of his own in which he lives does not cease to be resident there when he leaves it for a temporary purpose whether on business or vacation or even to pursue a course of study. The fact of his family remaining there while he is away may lend support for the conclusion that he has not ceased to reside there. The conclusion may be reached, as well, even though the absence may be more or less lengthy. It is also enhanced if he returns there frequently when the opportunity to do so arises. It is, as Rand J. appears to me to be saying in the passage I have read, "chiefly a matter of the degree to which a person in mind and fact settles into or maintains or centralizes his ordinary mode of living with its accessories in social relations, interests and conveniences at or in the place in question". [emphasis added] |
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In Re Koo4, Madame Justice Reed wrote at page 293:
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The conclusion I draw from the jurisprudence is that the test is whether it can be said that Canada is the place where the applicant "regularly, normally, or customarily lives". Another formulation of the same test is whether Canada is the country in which he or she has centralized his or her mode of existence. [emphasis added] |
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In Re Pourghasemi5 Mr. Justice Muldoon wrote at page 260:
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It is clear that the purposes of paragraph 5(1)(c) [of the Citizenship Act] is to ensure that everyone who is granted precious Canadian citizenship has become, or at least has been compulsorily presented with the everyday opportunity to become, "Canadianized". This happens by "rubbing elbows" with Canadians. [emphasis added] |
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[6] Finally, in Re Shang6, on facts not dissimilar to the facts of this case, Wetston J. wrote at paragraphs 5 and 6:
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Can it be said that the appellant is a person who in mind and fact has centralized her ordinary mode of living with its accessories in social relations, interests and conveniences in Canada? The answer to this question is often most difficult in student cases. However, in this case, despite being a student, I am not satisfied that the appellant effectively established residence in Canada before making the decision to apply for Canadian citizenship. I am not satisfied that the quality of the appellant's attachment throughout her period of study and up to the date of her application for citizenship was such as to qualify the time that she spent pursuing her studies as a period of residence in Canada. In my opinion, paying taxes, obtaining a social insurance number or a driver's license are insufficient indicia of aggressively pursuing integration into the Canadian community and way of life. Rather, in this case, the evidence establishes that her attachment is more to her family, who live in Toronto, rather than her attachment to Canada in and of itself. |
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There must be some evidence of an attachment to Canada, not just that there is no connection to any other country. [emphasis added] |
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[7] I am satisfied that the words of Mr. Justice Wetston in Re Shang effectively distil the essence of the case law previously cited, as it applies to persons who come to Canada in company with their parents and more or less promptly leave to pursue studies outside of Canada with regular returns to Canada but with little or no evidence put before the Citizenship Judge to demonstrate that their attachment in returning to Canada is to Canada "in and of itself" rather than merely to family. I am satisfied that Mr. Justice Wetston's words apply equally to the respondent in this matter.
[8] In his decision, the learned Citizenship Judge wrote:
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... in brief, the applicant did everything which a Canadian citizen/student studying outside Canada would do. Throughout this period the student's centrality of living, i.e. the focus of family, was Canada. |
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I am satisfied that the foregoing quotation from the Citizenship Judge's decision represents a substantial misinterpretation or misapplication of the case law to which I have referred. It is simply not sufficient for a person seeking to qualify for Canadian citizenship while studying abroad to do everything which a Canadian citizen/student studying outside of Canada would do. The person seeking Canadian citizenship must do more. She or he must demonstrate an attachment to Canada sufficient to earn the right to a grant of Canadian citizenship. Further, centrality of living is not equivalent to "focus of family". Centrality of living implies a demonstrated commitment to Canada or, in Mr. Justice Muldoon's term "Canadianization".
[9] I am satisfied that the Citizenship Judge, in phrasing the test as he did, committed a reviewable error.
[10] For the foregoing reasons, I will grant this appeal and quash the decision of the Citizenship Court Judge. At the request of counsel, I will order that the matter be referred back for rehearing, before a different Citizenship Judge, on the record that was before the Citizenship Judge unless, within 60 days of the date of my decision, the respondent advises the Minister that she does not wish to pursue a rehearing of this matter.
"Frederick E. Gibson"
Judge
TORONTO, ONTARIO
April 15, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-1100-98
| STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
DATE OF HEARING: MONDAY, APRIL 12, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: GIBSON J.
DATED: THURSDAY, APRIL 15, 1999
APPEARANCES: Ms. Marianne Zoric
For the Applicant
Ms. Robin Seligman
For the Respondent
SOLICITORS OF RECORD: Morris Rosenberg
Deputy Attorney General
of Canada
For the Applicant
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990415
Docket: T-1100-98
Between:
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
Applicant
Respondent
REASONS FOR JUDGMENT
__________________
1 R.S.C. 1985, c. C-29, as amended.
2 SOR/98-106.
3 [1978] 2 F.C. 208 (T.D.).
4 [1993] 1 F.C. 286 (T.D.).
5 (1993), 19 Imm. L.R. (2nd) 259 (F.C.T.D.).
6 [1998] F.C.J. No. 112 (F.C.T.D.).
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