Date: 19990122
Docket: T-1082-98
BETWEEN:
| IN THE MATTER OF THE CITIZENSHIP ACT, R.S.C. 1985, c. C-29 |
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| AND IN THE MATTER OF an appeal from the decision of a |
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| THE MINISTER OF CITIZENSHIP AND IMMIGRATION, |
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Appellant,
Respondent.
REASONS FOR JUDGMENT
DUBE, J.
[1] The Minister of Citizenship and Immigration appeals the decision of a Citizenship Judge dated April 3, 1998, approving the application of the respondent for a grant of Canadian citizenship under subsection 5(1) of the Citizenship Act (the "Act") despite the fact that she has been physically present in Canada for only 302 days and fell short of the minimum requirement of at least three years residence in Canada within the four years immediately preceding the date of her application for Canadian citizenship by 793 days.
[2] The respondent was born in Hong Kong on October 25, 1970, acquired permanent residence status in Canada on April 3, 1993 and on February 9, 1997, completed an adult application for Canadian citizenship. Following her lawful admission to Canada with her family, she resided in Vancouver for only a period of 7 days before she left the country and returned to Hong Kong to pursue her university studies.
[3] Physical presence throughout the period is not always essential. The principle has been clearly established by the Associate Chief Justice of this Court, Thurlow, J. (as he then was), in the Re Papadogorgakis1 case, wherein he states at page 214:
| A person with an established home of his own in which he lives does not cease to be resident there when he leaves it for a temporary purpose whether on business or vacation or even to pursue a course of study. The fact of his family remaining there while he is away may lend support for the conclusion that he has not ceased to reside there. The conclusion may be reached, as well, even though the absence may be more or less lengthy. It is also enhanced if he returns there frequently when the opportunity to do so arises. It is, as Rand J. appears to me to be saying in the passage I have read, "chiefly a matter of the degree to which a person in mind and fact settles into or maintains or centralizes his ordinary mode of living with its accessories in social relations, interests and conveniences at or in the place in question".". |
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Physical presence in Canada throughout the period is less essential where a person has in mind and fact settled into or maintained or centralized his or her own ordinary mode of living in this country. That was the case of the student in the Papadogorgakis case (supra), who had established a mode of living in Nova Scotia before going to study in the United States.
[4] Unfortunately such is not the case of the respondent here who, obviously, cannot have established a mode of living in Canada in only 7 days.
[5] Consequently her application was premature. Now that she has completed her studies and has settled in Vancouver, she may in due course make a fresh application for Canadian citizenship and undoubtedly will be successful.
[6] Thus the appeal of the Minister is allowed.
(Sgd.) "J.E. Dubé"
J.F.C.C.
Vancouver, British Columbia
22 January 1999
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-1082-98
STYLE OF CAUSE: MINISTER OF CITIZENSHIP AND
IMMIGRATION
v.
KAREN KA MING LO
PLACE OF HEARING: Vancouver, British Columbia
| DATE OF HEARING: January 21, 1999 |
REASONS FOR JUDGMENT OF DUBE, J.
dated January 22, 1999
APPEARANCES:
| Ms. Paige Purcell for the Appellant |
Ms. Karen Ka Ming Lo on her own behalf
SOLICITORS OF RECORD:
Morris Rosenberg for the Appellant
Deputy Attorney General
of Canada
| Ms. Karen Ka Ming Lo on her own behalf |
Coquitlam, B.C.
V3E 1A2
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1 In Re Citizenship Act and In Re Papadogorgakis, [1978] 2 F.C. 208 (T.D.).
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