Canada (Minister of Citizenship and Immigration) v. Lo, docket T-144-98

Date: 19981102

Docket: T-144-98

BETWEEN:

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION,

     Appellant

     - and -

     HOI WAN LO,

     Respondent.

     REASONS FOR JUDGMENT

WETSTON, J.

[1]      This is an appeal under section 14(5) of the Citizenship Act, wherein the Citizenship Judge approved the application of the Respondent for a grant of Canadian citizenship under section 5(1) of the Citizenship Act.

[2]      The Citizenship Judge decided that the Respondent had met the residency requirement of section 5(1)(c) despite the fact that the Respondent had been physically present in Canada for only 255 days in accordance with the calculations made pursuant to the Act.

[3]      The Appellant noted that the Citizenship Judge incorrectly calculated the shortfall. The Citizenship Judge had concluded that it was 840 days when the actual number was 717 days. Despite this error, the Appellant submits that the spirit of the decision remains the same and that the decision should be set aside.

[4]      The Respondent was a student and attended school in the United States of America. Unfortunately, despite numerous efforts by the Court, the Respondent did not appear at the hearing. She was served with a notice of the appeal but no notice of appearance was filed. While a notice of hearing was also sent by the registry, there was no response to the notice. Moreover, the registrar attempted to contact the Respondent on a number of occasions, including the day before the actual hearing. A letter was also sent to the residence of the Respondent, but there was also no response.

[5]      The Court had no explanation as to why the Respondent chose not to attend the hearing, but in a matter of such great importance it would seem that some response would have been expected. In these circumstances, I decided to continue with the appeal on the record. After the hearing, the Court received a letter from the Respondent, in which she stated as follows:

[6]      In my view, the substantial shortfall objectively would appear to indicate that the Respondent has not met the residency requirements during the relevant time period. There was little evidence on the record to substantiate, despite the fact that she was a student, a personal substantial and permanent attachment to Canada. The Respondent resided in the USA and attended school pursuing a program of studies in Marketing at the Bachelor of Science level. She returned to Canada on nine occasions, all of which occurred during the summer or Christmas break.

[7]      There was no Canadian tax return, she does not own any property in Canada and she resides with her family at home. It is not expected that a young student would necessarily own property but there was no evidence to indicate any other connections to Canada. In essence, the evidence is insufficient to demonstrate that she centralized her mode of existence in Canada throughout the relevant time. While student cases raise specific issues with respect to citizenship I, nevertheless, am not satisfied that the record supports a conclusion that despite being a student during the relevant period, the Respondent regularly, normally or customarily lived in Canada.

[8]      In this regard the physical absences should not be included for the purposes of section 5(1)(c) of the Citizenship Act.

[9]      Accordingly, the appeal by the Minister is allowed.

                             (Sgd.) "Howard I. Wetston"

                                 Judge

Vancouver, British Columbia

November 2, 1998

     FEDERAL COURT TRIAL DIVISION

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

HEARING DATED:          October 29, 1998

COURT NO.:              T-144-98

STYLE OF CAUSE:          Minister of Citizenship and Immigration

                     v.

                     Hoi Wan Lo

PLACE OF HEARING:          Vancouver, BC

REASONS FOR ORDER OF WETSTON, J.

dated November 2, 1998

APPEARANCES:

     Ms. Lorie Jane Turner      for Appellant

     Ms. Julie Fisher          for Amicus Curiae

SOLICITORS OF RECORD:

     Morris Rosenberg          for Appellant

     Deputy Attorney General

     of Canada