Hsu (Re), docket T-2045-97

Date: 19981112

Docket: T-2045-97

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

PAU YAW HSU

     Appellant

REASONS FOR JUDGMENT AND JUDGMENT

BLAIS J.:

[1]      The appellant appeals by way of a trial "de novo" a decision of the Citizenship Judge which denied his application for citizenship because he had not fulfilled the residence requirement of the Citizenship Act.

[2]      The appellant was physically present within Canada for a total period of 550 days during the four year period preceding his application for citizenship.

[3]      The jurisprudence has established that the physical presence within the country is not needed during the whole 1,095 days to fulfil the three year residence requirement.

[4]      The appellant's counsel referred to different jurisprudence including Papadogiorgakis [1978] 2 F.C. 208. In this case Associate Chief Justice Thurlow said at pp. 213-214:

It seems to me that the words "residence" and "resident" in para. 5(1) (b) of the new Citizenship Act are not as strictly limited to actual presence in Canada throughout the period as they were in the former statute but can include, as well, situations in which the person concerned has a place in Canada which is used by him, during the period as a place of abode to a sufficient extent to demonstrate the reality of his residing there during the material period even though he is away from it part of the time.

[5]      The applicant's counsel quoted Justice Reed in Koo [1993] 1 F.C. 286 F.C.T.D. at pp. 292-293:

In the Re Papadogiorgakis case, a student who had been physically present in Canada for only 79 days during the relevant four year period was determined to have fulfilled the residence requirement.

[6]      The applicant arrived in Canada in 1992 and completed his high school in St. Catharines, Ontario.

[7]      After that, he landed with his parents on the 21st of August, 1993 and almost immediately went to the United States for a Master's program in Industrial Engineering at the University of Michigan.

[8]      He graduated from the University of Michigan in May, 1998 with a Master's degree.

[9]      After many applications he got a job, a month later, in Niagara Falls, Ontario where he is working as an industrial manufacture engineer.

[10]      The appellant is 22 years old and he claims that his absence from Canada was on a temporary basis for study purposes. He also claims that although he was not in Canada physically he maintained and centralized his mode of living in Canada during the period in question, particularly because his father and mother had moved to Canada, became Canadian citizens, and had established themselves in Toronto. During the years he studied at the University of Michigan, his parents paid for his education.

[11]      I want to quote Justice Rouleau in Chan [1997] F.C.J. No. 1457, Court file No. T-1981-96:

The jurisprudence in this Court with respect to students seems to suggest that if one must be satisfied that the appellant has remained a dependent of his parents in Canada, that they paid for his education, that he returned here during the summer and other types of holidays, that it was always his intention to return to this country. This appellant complies with these conditions. He always intended to return; his motives were unchallenged and his residence should not be considered having been interrupted. He is now looking for work in Canada and, effectively, he has no other home or residence to go to except this country. Along with the amicus curiae's concurrence, I allow this appeal.

[12]      I believe that the appellant has convinced me that he now meets the criteria even more than in the decision of Justice Rouleau, because the appellant has already found a job and is working in Niagara Falls, Ontario and seems to have definitely settled in Ontario.

[13]      On the basis of this evidence I am convinced that the appellant has complied with the requirement of residence as set out in paragraph 5(1)(c) of the Citizenship Act.

[14]      Accordingly, the appeal is allowed and the decision of the Citizenship Judge set aside.

"Pierre Blais"

                                 Judge

TORONTO, ONTARIO

November 12, 1998

     FEDERAL COURT OF CANADA

     Names of Counsel and Solicitors of Record

COURT NO:                  T-2045-97

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

AND IN THE MATTER OF

PAU YAW HSU

    

DATE OF HEARING:          TUESDAY, NOVEMBER 10, 1998

PLACE OF HEARING:          TORONTO, ONTARIO

REASONS FOR JUDGMENT

AND JUDGMENT BY:          BLAIS, J.

DATED:                  THURSDAY, NOVEMBER 12, 1998

APPEARANCES:              Mr. Cecil Rotenberg

                         For the Appellant

                     Mr. Peter K. Large

                         Amicus Curiae

SOLICITORS OF RECORD:      Cecil L. Rotenberg, Q.C.

                     Barrister & Solicitor                     

255 Duncan Mill Road

                     Suite 808

                     Don Mills, Ontario

M3B 3H9

                         For the Appellant

                     Peter K. Large

                     610-372 Bay Street

                     Toronto, Ontario

                     M5H 2W9

                         Amicus Curiae

                     FEDERAL COURT OF CANADA

     Date: 19981112

                         Docket: T-2045-97

                    

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

                    

                     PAU YAW HSU

    

                                             Appellant

                    

                     REASONS FOR JUDGMENT AND JUDGMENT