Date: 19990122
Docket: T-1263-98
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
YA YUN YANG
Respondent
REASONS FOR JUDGMENT
BLAIS J.
[1] This is an appeal under s. 14(5) of the Citizenship Act and s. 21 of the Federal Court Act brought on behalf of the Minister of Citizenship and Immigration, from the decision of Citizenship Judge J. Hong, dated April 21, 1998 ,wherein the respondent's application for a grand of citizenship under s. 5(1) of the Citizenship Act was approved.
[2] By his decision of April 21, 1998, the Citizenship Judge decided that the respondent had met the residence requirement of s. 5(1)(c) of the Citizenship Act, despite the fact that the respondent has been physically present in Canada for only 584.5 days, a shortfall of 510.5 days with respect to meeting the minimum requirement of at least three years (1095 days) residence in Canada within the four years immediately preceding the date of the respondent's application for citizenship.
[3] The applicant's counsel suggests that the Citizenship Judge erred in finding that the respondent met the residency requirements prescribed under section 5(1)(c) of the Citizenship Act namely, that within the four years immediately preceding the date of the respondent's application she had accumulated at least three years of residence in Canada.
[4] The applicant's counsel also suggests that the respondent did not centralized her mode of living in Canada and the Citizenship Judge erred in law and in fact when he approved the respondent's application for citizenship.
THE FACTS
[5] The applicant was born in Taiwan on the 31st of December 1974. She came to Canada on a student visa on September 8, 1991. She attended secondary school in Vancouver and graduated in June of 1995. On March 23, 1995, the applicant was granted permanent residence in Canada, in company with her parents and brother.
[6] The applicant then remained in Canada for about three months, until June 30, 1995, when she returned to Taiwan for a vacation lasting 68 days. The applicant returned to Canada on September 6, 1995 and remained until December 9, 1995, when she went to Taiwan for a 32 day vacation. After her return to Canada on January 10, 1996, the respondent stayed until April 13, 1996. She then left Canada for 170 days to care for her sick grandmother in Taiwan . The respondent returned to Canada on September 30, 1996 and stayed 4 days. She returned to Taiwan on October 3, 1996, again to visit her sick grandmother. She remained in Taiwan for 164 days before returning to Canada on March 16, 1997. On March 26, 1997, the respondent applied for Canadian citizenship.
[7] In total, the applicant was physically present in Canada for 584.5 days in the four years preceding her application for citizenship, a shortfall of 510.5 days.
[8] The respondent provided little, if any, evidence demonstrating a personal, substantial and permanent attachment to the Canadian community. In fact, evidence before the Citizenship Judge indicated that the respondent herself had stated to immigration officers that she had not lived in Canada since the time she was landed, that she could not live in Canada because she had to work in her family's business.
[9] During the relevant time period, the respondent returned to Canada for the occasional but brief visit. She was not engaged in employment, business or academic studies in Canada after January of 1996. I understand that the respondent mentioned on her application for admission to an Ontario University, that she attended York University from September 1995 till April 1996. The respondent claimed to have taken a leave of her studies. After that, the evidence shows that she brought an application for admission to an Ontario university, namely York University in Economics on April 13, 1998. That is the week before her appearing before the Citizenship judge. We do not know if she is engaged in studies or if she is still on a leave.
[10] The applicant's counsel raised that the evidence before the Citizenship judge indicated that when the respondent returned to Canada on March 16, 1997 (just prior to her application for Citizenship), after an absence 164 days, she made the following statements to an immigration officer at the port of entry, as reflected in the officer's notes:
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Subject immigration to Canada 23/03/95. She has not lived here since that time. Subject states that she can't live in Canada because she has to work for her family's business in Taiwan. Subject states that she will stay for one month and then return to her home in Taiwan. Subject states that her family ownes (sic) a house here and her brother is in Canada going to school. No other family members are in Canada. None of the family members work in Canada. Only taxes paid are property taxes. |
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[11] In addition, when the respondent applied for a returning resident permit on September 22, 1997, she made the following statements to an immigration officer:
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RRP /R001699036 Issued to cleint (sic) on 22sep97 valid to 22sep98. Issued as per regulation 26(2)(c)(iv). Subject disposing of property. States she was finishing university education earlier, and she will resume permanent residency in Canada Sept/98. Fee paid #16835. Cr/3708. |
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[12] The only documentary evidence submitted by the respondent before the Citizenship judge regarding her activities in Canada were a copy of a bank account, a S.I.N. card, an Ontario Driver's Licence and credit card.
[13] I have to answer a very simple question: did the respondent centralized her mode of living in Canada?
[14] In the Koo case, Justice Reed said:
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The conclusion I draw from the jurisprudence is that the test is whether it can be said that Canada is the place where the applicant "regularly, normally or customarily lives". Another formulation of the same test is whether Canada is the country in which he or she has centralized his or her mode of existence. Questions that can be asked which assist in such a determination are: |
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(1) was the individual physically present in Canada for a long period to recent absences which occurred immediately before the application for citizenship? |
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(2) where are the applicant's immediate family and dependants (and extended family) resident? |
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(3) does the pattern of physical presence in Canada indicate a returning home or merely visiting the country? |
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(4) what is the extent of the physical absences -- if an applicant is only a few days short of the 1,095-day total it is easier to find deemed residence that if those absences are extensive? |
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(5) is the physical absence caused by a clearly temporary situation such as employment as a missionary abroad, following a course of study abroad as a student, accepting temporary employment abroad, accompanying a spouse who has accepted temporary employment abroad? |
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(6) what is the quality of the connection with Canada: is it more substantial than that which exists with any other country?1 |
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[15] In this case, the respondent had not met the residency requirements during the relevant time period. The respondent did not centralized her mode of living in Canada.
[16] The evidence shows that she was visiting Canada pursuant to what she stated to immigration officers when she entered the country.
[17] I am convinced that the Citizenship Judge erred in finding that the residence qualifications where met in this case. The evidence in the record clearly demonstrated that the respondent had not established her residence in Canada.
[18] She does not study or work in this country. And the respondent has not shown an integration within Canadian society nor any attachment to Canada.
[19] For those reasons, the appeal is allowed and the decision of the Citizenship Judge is set aside.
"Pierre Blais"
Judge
Toronto, Ontario
January 22, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-1263-98
| STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Applicant
Respondent
DATE OF HEARING: THURSDAY, JANUARY 21, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: BLAIS J.
DATED: FRIDAY, JANUARY 22,
APPEARANCES: Mr. Stephen Gold
For the Applicant
| For the Respondent (representing herself) |
SOLICITORS OF RECORD: Morris Rosenberg
Deputy Attorney General of Canada
| For the Respondent (representing herself) |
FEDERAL COURT OF CANADA
Date: 19991122
Docket: T-1263-98
Between:
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Applicant
Respondent
REASONS FOR JUDGMENT
__________________
1 [1993] 1 F.C. 286 at pages 293 and 294.
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