Canada (Minister of Citizenship and Immigration) v. Ho, docket T-1846-98

Date: 19990430

Docket: T-1846-98

BETWEEN:

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION,

     Appellant,

     - and -

     LI-TE HO,

     Respondent.

     REASONS FOR ORDER

MCKEOWN J.

[1]      The appellant appeals under section 14(5) of the Citizenship Act¹ (the "Act") and section 21 of the Federal Court Act, a decision of Citizenship Judge Glass, dated August 6, 1998, wherein the Judge approved the application of the respondent for a grant of Canadian citizenship under section 5(1) of the Act.

[2]      The issue is whether the respondent had established residence in Canada prior to attending a university in the United States. The respondent was born in Taiwan on August 5, 1966 and is a citizen of Taiwan. He was admitted to Canada as a landed immigrant on August 6, 1991, as a dependent of his father. The respondent, at the time he was landed in Canada, was a graduate student attending the University of Oregon in the United States. He remained there until December 18, 1992. Since January 6, 1993, the respondent has been attending the University of Maryland. The respondent applied for citizenship on July 25, 1997 and was still attending the University of Maryland at that time. The period of time with which we are concerned is the four year period from July 25, 1993 to July 25, 1997. During that period of time the respondent spent 568 days in Canada and was short 527 days with respect to meeting the minimum requirement of at least three years residence in Canada within the four years immediately preceding the date of his application for Canadian citizenship.

[3]      In attempting to determine this appeal, I have been handicapped by a lack of record of the interview before Citizenship Judge Glass and the failure of the respondent to appear or file any record on the material that was on the record before the Citizenship Judge. There do not appear to be any facts on the record which would indicate that the respondent had established a centralized mode of living in Canada just prior to July 25, 1993 when he applied for citizenship. The respondent was in Canada for one and a half months in that period. In my view the facts in this case are similar to those before Dubé J. in Minister of Citizenship and Immigration v. Liu², wherein he stated as follows:

I have generally followed that decision [Re: Papadogorgakis3] with reference to students who study abroad and other applicants for citizenship who must leave the country for a temporary purpose. However, in this instance, the Respondent has not established a centralized mode of living in Canada prior to his departure to pursue his university studies in Ireland. He lived with his aunt in Toronto from August 3 to August 17, 1993 and thereafter from August 17 to August 29, 1993 with his parents in Vancouver. There is no evidence that he could have maintained a centralized mode of living in Canada during that very short period.

[4]      In support of his application for Canadian citizenship, the respondent submitted the following documents:

i.      a copy of a B.C. health care card;

ii.      student identification from the University of Maryland;

iii.      U.S. student visa;

iv.      transcripts issued by the University of Maryland;

v.      a letter from the University of Maryland, dated July 22, 1997, confirming the respondent's employment as a research graduate assistant;

vi.      a copy of his Taiwanese passport;

vii.      copies of returning resident permits; and

viii.      a copy of his record of landing.

It may be that in the interview before the Citizenship Judge, the respondent provided further information on his connections to Canada, but in light of the absence of any evidence with respect to the contents of that interview, I cannot speculate on such evidence.

[5]      Consequently, on the facts before me, the Citizenship Judge, on the face of the record, fundamentally erred in her assessment of this case. The respondent's application for Canadian Citizenship was premature. If the respondent is able to obtain employment in research in polymer physics at the National Laboratory in Canada, I am sure he will become a valuable citizen. The appeal is allowed. The decision of Citizenship Judge Glass dated August 6, 1998 is set aside.

                             (Sgd.) "William P. McKeown"

                                     Judge

Vancouver, British Columbia

30 April 1999

     FEDERAL COURT TRIAL DIVISION

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT NO.:              T-1846-98

STYLE OF CAUSE:          MINISTER OF CITIZENSHIP AND

                     IMMIGRATION

                     v.

                     LI-TE HO

PLACE OF HEARING:          Vancouver, British Columbia

DATE OF HEARING:          April 28, 1999

REASONS FOR JUDGMENT OF MCKEOWN J.

dated April 30, 1999

APPEARANCES:

     Lorie Jane Turner          for the Appellant

Li-Te Ho              on his own behalf

SOLICITORS OF RECORD:

     Morris Rosenberg          for the Appellant

     Deputy Attorney General

     of Canada

__________________

     ¹      R.S.C. 1985, c. C-29.

     ²      Federal Court Docket no. T-997-98, January 12, 1999.

     ³      [1978] 2 F.C. 208 at 214.