Date: 19981130
Docket: T-866-98
BETWEEN:
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
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
- and -
KA YING BENNETT WONG
Respondent
REASONS FOR ORDER
WETSTON J:
[1] The only issue in this ministerial appeal is residence under paragraph 5(1)(c) of the Citizenship Act. This is a student case in which Mr. Wong was absent 945 days during the relevant period. The appellant argues that the reason for leaving was voluntary and unnecessary. The respondent's family was in Canada. He filed Canadian tax returns and had a bank account in Canada. However, the appellant argues that these are insufficient for a person to become a citizen. The appellant further submits that the respondent had not aggressively pursued integration into Canadian society during the time of his visits to Canada from the U.S.
[2] The respondent was a student at the University of Wisconsin and later entered law school at the Western New England College. He did have a Canadian social insurance number and obtained returning resident permits. The respondent indicated that he returns to Canada regularly as his mother and father are here and he is an only son. He had been studying in Wisconsin for one year before landing in Canada. He stayed for one month and then left to return to school. He has a large family here and has never returned to Hong Kong. He decided to go to law school in the United States because he felt it would better enable to practice international business law or international trade law and thereby obtain a better position in Canada.
[3] The appellant argues that the respondent never established a mode of residence in Canada before leaving. He had already been studying and had no intention at this time to establish himself in Canada. There was no ambiguity since he took no steps whatsoever to return on a more permanent basis to Canada. In that sense, it is submitted that he voluntarily chose to stay in that program and not return to Canada or to a Canadian school. His absences are lengthy and voluntary. It is contended that he had no need to go to a U.S. Law school after completing Wisconsin. According to the Minister, his attachment is more to family than to Canada itself. It is also contended that during the 150 days in which the respondent was in Canada, he did not pursue integration into Canadian society. He was here only on holidays, and therefore the quality of his attachment was minimal. In that regard, it is submitted that his application for citizenship is premature.
[4] The respondent argues that with reference to the considerations in Re Koo (1992), 19 Imm. L.R. (2d) 1, 59 F.T.R 27 (T.D.) ["Re Koo"], point (1) is not relevant; point (2), all his family is here; point (3), he was returning home not merely visiting Canada; point (4), though these were long absences, he is a student and was away only on a temporary basis; and point (6), he has no connection to any other country.
[5] Citizenship applications made by students who have studied or are studying outside Canada pose certain difficulties depending on when they file their citizenship application. In Re Koo, supra, Reed, J. noted that the law should be applied equally to all and the qualities of the individual as a potential citizen should not affect the interpretation of the statute. The test then is whether Canada is the country in which he or she has centralised his or her mode of existence or where he or she normally lives. In Re Koo, supra, at page 293, Reed J. listed six questions which can be asked to assist in making these determinations:
| (1) was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship; |
| (2) where are the applicant's immediate family and dependants (and extended family) resident; |
| (3) does the pattern of physical presence in Canada indicate a returning home or merely visiting the country; |
| (4) what is the extent of the physical absences - if an applicant is only a few days short of the 1,095 day total it is easier to find deemed residence than if those absences are extensive; |
| (5) is the physical absence caused by a clearly temporary situation such as employment as a missionary abroad, following a course of study abroad as a student, accepting temporary employment abroad, accompanying a spouse who has accepted temporary employment abroad; |
| (6) what is the quality of the connection with Canada: is it more substantial than that which exists with any other country? |
[6] Physical presence is a key factor which must be considered by the Court in making a finding as to whether an applicant meets the Act's requirements for residence. A lack of physical presence does weigh against a grant of citizenship. For absences to be considered temporary and therefore included, there must be other indicia of residence and this is the primary purpose of the questions posed in Re Koo, supra, by Reed. J.
[7] In my opinion, where physical presence is minimal, the most important consideration is the quality of the applicant's attachment to Canada. There must be evidence to show a genuine attachment to Canada. This attachment must go beyond having only connections to family located in Canada, a Canadian driver's license or a social insurance number.
[8] There are a number of considerations which may serve to highlight this attachment. Did the respondent make substantial efforts to return to Canada during breaks? If not, why not? For example, did he return to Canada during summer breaks and obtain summer employment or do community work in Canada? In the course of those visits, did he engage in activities which would further his integration into Canadian society? For example, did he join a social club, athletic club, church group or take a course or program? Did he make a reasonable effort to determine if alternate programs existed in Canada which could satisfy his educational goals and to enrol in those programs?
[9] In summary, the respondent must establish residence in Canada in mind and in fact. He must have centralized his mode of living in Canada.
[10] I find that the respondent provided little evidence of his integration into Canada society during his visits. While he did visit his family regularly the visits were generally of short duration. While it is clear he intended to return to British Columbia to reside, he made little or no effort to pursue his studies, in particular his legal studies, in Canada. I do not accept that having a U.S. Law degree would necessarily provide him any greater advantage in pursuing a career in International Business or Trade Law. In any event, I am not satisfied that, despite being a student, Mr. Wong had established or centralized his mode of living in Canada. In my opinion the application suffers from prematurity. Obviously, Mr. Wong will be a terrific citizen but he must meet the requirements of the Act prior to this event. The appeal shall be allowed.
"Howard I. Wetston"
Judge
Toronto, Ontario
November 30, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-866-98
STYLE OF CAUSE: 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 |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
- and -
DATE OF HEARING: WEDNESDAY, NOVEMBER 4, 1998
PLACE OF HEARING: VANCOUVER, BRITISH COLUMBIA
REASONS FOR ORDER BY: WETSTON J.
DATED: FRIDAY, NOVEMBER 30, 1998
APPEARANCES: Ms. Larissa Easson
For the Appellant
Mr. A. Wlodyka
For the Respondent
SOLICITORS OF RECORD: Morris Rosenberg
Deputy Attorney General
of Canada
For the Appellant
Lawrence Wong and Associates
| Suite 600, 2695 Granville Street |
For the Respondent
FEDERAL COURT OF CANADA
Date: 19981130
Docket: T-866-98
| 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 |
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
- and -
KA YING BENNETT WONG
REASONS FOR ORDER
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