Date: 19990429
Docket: T-612-98
IN THE MATTER OF THE CITIZENSHIP ACT
R.S.C. 1985, c. C-29
AND IN THE MATTER OF an appeal from the
decision of a Citizenship Judge
AND IN THE MATTER OF
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Appellant
- and -
TIAN BIN FENG
REASONS FOR JUDGMENT
SIMPSON, J.
[1] This is an appeal by the Minister of Citizenship and Immigration (the "Minister") by way of trial de novo under section 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 (the "Act") and section 21 of the Federal Court Act, R.S.C. 1985, c. F-7, from a decision of the Citizenship Judge dated March 9, 1998, approving a grant of Canadian citizenship to the Respondent, Dr. Tian Bin Feng.
[2] The Respondent did not appear on the appeal and did not engage counsel. Counsel appearing as amicus curiae therefore questioned whether the Respondent had notice of this appeal. Pursuant to the Court's direction, counsel spoke with the Respondent. He indicated that he knew of this appeal and had decided not to attend. Accordingly, I will render a decision on the merits of the Minister's appeal based on the available record.
THE FACTS
[3] The Respondent became a landed immigrant in July 1990 and lived in Canada for two years during which time the Minister concedes that he established residence. However, in July 1992, the Respondent left Canada to study in the United States.
[4] The Respondent's residence questionnaire indicates that, between July 1992 and July 1996, he had no Canadian address. As well, he left no family or belongings in Canada. He did have one friend in Canada by the name of Dr. Hu, but there is no evidence that the Respondent maintained a room at Dr. Hu's residence.
[5] Finally, although the Respondent indicated that he returned to Canada during his studies in the United States, no details about the number, timing or duration of any such trips were provided. In these circumstances, I have no meaningful evidence about any return trips the Respondent may have made to Canada. In any event, the Minister submits that, if there were such trips, they were made by the Respondent as a visitor rather than as a returning resident.
[6] The Respondent did not set up a bank account in Canada until July 1996 when he returned from his studies in the United States and rented accommodation here. He did not join the Ontario Medical Association until 1998.
[7] The Respondent applied for Canadian citizenship on July 10, 1997. Accordingly, the relevant period for the assessment of the residency requirement (the "Period") starts on July 10, 1993, and runs to July 10, 1997. In the Period, he was obliged to be resident for 1095 days but was out of Canada for 914 days. The question is whether, in all the circumstances, he can be considered to have been a Canadian resident while he was out of the country.
DISCUSSION
[8] The Citizenship Judge relied on the case of Papadogiorgakis, [1978] 2 F.C. 208 (T.D.). However, in my view, it is a case which presents an unusual situation and should therefore be confined to its facts. In that case, a student who had almost no physical presence in Canada during the relevant four-year assessment period, had lived here for four prior years and had established a centralized mode of living in Canada prior to departing for study abroad. Further, during his absence he maintained a Canadian residence, returned regularly and took most of his holidays in Canada.
CONCLUSION
[9] I am satisfied that the Respondent moved to the United States in July 1992. He did not maintain a centralized mode of living in Canada. In these circumstances, the Citizenship Judge erred when he applied the Papadogiorgakis case to this entirely different factual situation. The Respondent severed his connections with Canada while he studied in the United States. Accordingly, his application for Canadian citizenship is premature and the Minister's appeal will be allowed.
(Sgd.) "Sandra J. Simpson"
Judge
Vancouver, British Columbia
April 29, 1999
NAMES OF COUNSEL AND SOLICITORS OF RECORD
IN THE MATTER OF the Citizenship Act,
R.S.C. 1985, c. C-29
AND IN THE MATTER OF an appeal
from the decision of a Citizenship Judge
AND IN THE MATTER OF
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Appellant
- and -
TIAN BIN FENG
Respondent
COURT NO.: T-612-98
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 23, 1999
REASONS FOR JUDGMENT: SIMPSON, J.
DATED: April 29, 1999
APPEARANCES:
Ms. Lori Hendriks for Appellant
no one appearing for Respondent
Mr. Peter K. Large for amicus curiae
SOLICITORS OF RECORD:
Mr. Morris Rosenberg for Appellant
Deputy Attorney General of Canada
Peter K. Large for amicus curiae
Toronto, Ontario
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