Date: 19980218
Docket: T-1870-97
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
MEI YAN CHAN
Appellant.
REASONS FOR JUDGMENT
JOYAL, J.
[1] This is an appeal from a decision of the Citizenship Court dated July 21, 1997. The Citizenship Judge did not approve the citizenship application of Mei Yan Chan, on the grounds that she did not satisfy the residency requirement as set out in section 5 of the Citizenship Act ("the Act"). The Citizenship Judge agreed that the applicant had established residence in Canada by virtue of a centralized mode of living, but concluded that the applicant's stays in Canada were only temporary and that her frequent absences could not be counted as periods of residence.
The Facts:
[2] The appellant is a 23-year old British citizen from Hong Kong. She first came to Canada on August 18, 1990, as a visitor, and started studies here under a student visa in 1991. From September 1991 to June 1993, she attended school in Vancouver. In October 1993, she enrolled at the University of Bath in England. The appellant claims that she was not sure she would be accepted at a Canadian university, and attended a British institution because they accepted her so rapidly.
[3] On January 1, 1994, the appellant became a permanent resident of Canada. Her family lives in Vancouver, and her parents own a home in that city as well as in Hong Kong.
[4] The appellant's absences during the four years preceding her application for citizenship total some 702 days. Out of those 702 days, she spent 207 in Hong Kong for holidays and apprenticeship, while the rest was absorbed in the course of her studies in England.
Disposition:
[5] At the hearing before me, the case for the appellant was forcefully put forth by her counsel. No doubt, counsel was persuasive, and I found myself searching for some element of proof or some sophisticated approach not made before the Senior Citizenship Judge and which might possibly shift the balance in the appellant's favour.
[6] The reasons for the Senior Citizenship Judge's decision are thoroughly covered and her conclusion buttressed by appropriate case law. So much so, in fact, that upon reconsideration of the case following adjournment on appeal, I felt disposed to take the case under reserve.
[7] Since then, however, I have reviewed that decision, I have looked again at the facts. I must conclude that I can find little ground to intervene in the decision of the Citizenship Court. I fail to find new evidence or new argument which would allow me to disturb that decision.
[8] Admittedly, current jurisprudence dealing with physical absences from Canada reflects a sliding scale of permissiveness, from the harsh, textual approach requiring physical presence during three of the four years preceding the application for citizenship, to the more generous interpretation in the Papadogiorgakis1 case, where in certain circumstances, absences from Canada do not involve a break in the statutory requirement of residence in Canada.
[9] The appellant is now well established in Canada. There is no doubt that on the merits, she would make an excellent Canadian citizen. Nevertheless, the Court must maintain some respect for the Canadian Parliament's imposition of the three-year rule and judge these borderline cases accordingly.
Conclusion:
[10] Although I must on balance confirm the Citizenship Court decision and dismiss with regret the appellant's appeal, I am sure that she will do very well indeed when she next applies.
L-Marcel Joyal
J U D G E
O T T A W A, Ontario
February 18, 1998.
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1 In re the Citizenship Act and in re Antonios E. Papadogiorgakis [1978] 2 F.C. 208.
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