Lee v. Canada (Minister of Citizenship and Immigration), 2001 FCT 634

Date: 20010608

Docket: T-1805-00

Neutral Citation: 2001 FCT 634

BETWEEN:

HEE YOUNG LEE

Applicant

and

MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

                                                    REASONS FOR ORDER

McKEOWN J.:

[1]              The Applicant appeals the decision of the Citizenship Judge dated July 31, 2000 when the judge denied the Applicant's application for Canadian citizenship.

Issues

[2]              The issue is whether the judge erred in improperly applying the test for residency by failing to consider that the Applicant resided outside of the country because her husband was on a fellowship.

Facts

[3]              The Applicant arrived in Canada on July 3, 1991, and married a Canadian citizen in October 1991. She received landed immigrant status on February 3, 1993. She moved to Seattle on March 31, 1997, where her husband was pursuing post-doctoral work on a Canadian government fellowship. She and her Canadian-child accompanied him to Seattle, where the family rented an apartment. The Applicant had another child in 1998 in Seattle, and registered the child as a Canadian citizen. She applied for Canadian citizenship on January 1, 1999. Her application was refused on July 31, 2000 because she was 334 days short of her required 1095 days. The Citizenship Judge stated, "[a] full review of your case has led me to conclude that your substantive absences from Canada cannot be counted as periods of residence under the Act".

Analysis

[4]              The Applicant and her two children moved back to her in-laws' home in Vancouver in September, 2000. This is where she and her family resided before spending over three years in Seattle. In Korean culture, the oldest son and his family live with his parents. I do not place great weight on this fact since it was not before the Citizenship Judge, but it is consistent with what the Applicant claims to have intended some years ago that her life be centred in Canada. See Justice MacKay in Singh v. MCI, [1999] F.C.J. No. 786 (T.D.) at paragraph 4.

[5]              I apply the standard of review as set out by Lutfy J. as he then was in Lam v. MCI, [1999] F.C.J. No. 410 (T.D.). I particularly note that the Citizenship Judge does not indicate which line of cases from the Trial Court he was following. In my view, the Lam case is very relevant for the present one, particularly at paragraph 11 where Justice Lutfy states:

Hence, an applicant for citizenship who has clearly and definitively established a home in Canada with the transparent intention of maintaining permanent roots in this country ought not to be deprived of citizenship merely because he has to earn his livelihood and that of his family by doing business offshore.             

[6]              The Citizenship Judge made no mention of the fact that the Applicant clearly had established a home in Canada from 1991 to 1997. The applicant's husband then accepted a fellowship from the Canadian government to do post-doctorate work in the U.S. Her husband then went to Seattle, which is only two and a half hours from Vancouver, to do his post-doctorate work. The Applicant stated in her application that her absence was temporary, and that she would return to Canada as soon as her husband's fellowship work was completed. In my view, she clearly meets the requirements of Re Koo, [1993] 1 F.C. 286 (T.D.) and Re Papadogiorgakis, [1978] 2 F.C. 208 (T.D.) The Citizenship Judge erred in ignoring the centralized mode of living of the Applicant's six years in Canada and the temporary nature of the Applicant's absence. Justice Lutfy took a similar view in Lam, supra, at paragraphs 34 and 37. Accordingly, the Applicant's appeal is allowed. Her application for citizenship is approved pursuant to section 14 of the Citizenship Act.

(Sgd.) "William P. McKeown"

                                                                                                Judge

Vancouver, British Columbia

8 June 2001

                                             FEDERAL COURT OF CANADA

                                                             TRIAL DIVISION

                      NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                T-1805-00

STYLE OF CAUSE:             Hee Young Lee v. The Minister of Citizenship and                                                  Immigration

PLACE OF HEARING:        Vancouver, British Columbia

DATE OF HEARING:           June 6, 2001

REASONS FOR ORDER OF THE COURT BY: McKeown J.

DATED:                                    June 8, 2001

APPEARANCES:    

Hee Young Lee                                                              APPLICANT

Peter Bell                                                            FOR RESPONDENT

SOLICITORS OF RECORD:

-                                                                                          FOR APPLICANT

Deputy Attorney General of Canada                         FOR RESPONDENT

Department of Justice

Vancouver, British Columbia