Date: 20000120
Docket: T-396-99
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
CHING HA BONNIE KWAN
Respondent
REASONS FOR JUDGMENT
McGILLIS J.
[1] The applicant has appealed from a decision of a citizenship judge dated January 5, 1999. In his decision, the citizenship judge concluded that the respondent met the requirements for citizenship in s. 5(1) of the Citizenship Act, R.S.C. 1985, c. C-29 and granted her citizenship.
[2] The respondent was born in Hong Kong in 1975. On June 26, 1994, she arrived in Canada with her parents and was admitted as a permanent resident. She remained in Canada for most of the summer and left in September of that year to study medicine in the United Kingdom. Over the course of the next three years, she returned to Canada during school vacation periods. She applied for citizenship on September 8, 1997 and completed her studies in 1999. Her application for citizenship was made only slightly over three years following her initial arrival in Canada.
[3] During the four years preceding her arrival in Canada, the respondent was physically present in Canada for 257 days and had a shortfall of 838 days for the purposes of the residency requirement in the Citizenship Act.
[4] In Minister of Citizenship v. Lau, T-1207-98 (December 15, 1999) (F.C.T.D.), I concluded that the standard of review of a decision of a citizenship judge should be close to the correctness end of the spectrum, with some "slight deference" to the decision.
[5] Having considered the submissions of counsel and all of the evidence in the record, I have concluded that the citizenship judge erred in law in finding that the respondent had met the residency requirement in s. 5(1)(c) of the Citizenship Act. A review of the evidence in the record indicates that the respondent never established herself as a resident of Canada prior to her departure to the United Kingdom to pursue her education and that she never centralized her mode of living here during the relevant time period. In particular, the evidence adduced by the respondent to establish her residency was mainly passive indicia such as an Ontario health card and driver's licence. In determining that the respondent met the residency requirement in s. 5(1)(c) of the Citizenship Act, the citizenship judge therefore erred in law by ignoring or misapprehending the evidence before him, including the significant and lengthy absences of the respondent from Canada and the very limited evidence adduced to support her application for citizenship. [See, for example, Minister of Citizenship v. Rahman, [1999] F.C.J. No. 655, T-2161-97, (April 29, 1999) (T.D.)].
[6] The appeal is allowed. The decision of the citizenship judge dated January 5, 1999 is quashed. The respondent may make a further application for citizenship at the appropriate time.
| ____________________________ |
Ottawa
January 20, 2000
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