Date: 19990602
Docket: T-865-98
BETWEEN:
| 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 |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION, |
Appellant,
Respondent.
REASONS FOR ORDER
REED J.
[1] The Minister appeals a decision of a citizenship judge that found the respondent had fulfilled the residency requirements of paragraph 5(1)(c) of the Citizenship Act (the "Act"). The respondent was landed in Canada on March 16, 1994. She applied for Canadian citizenship at the earliest opportunity; her application is dated February 24, 1997, and it became effective March 17, 1997.
[2] During the three year period from March 16, 1994, to March 17, 1997, the respondent spent extensive periods of time outside Canada. She returned to the country from which she, her mother, two sisters and a brother had come, the Philippines, to pursue her academic studies. She was absent from Canada from March 27, 1995 to December 24, 1995, then, from January 16, 1996 to July 2, 1996, and from July 22, 1996 to June 1, 1997. Also, she has been largely absent from Canada since that time, continuing her academic studies in the Philippines.
[3] When she was landed in Canada on March 16, 1994, she held a diploma in Industrial Engineering from the University of the Philippines; that diploma had been granted in 1990. She had commenced a Master's program in 1992, while also working full-time for a state power company. She took a leave of absence from her Master's program in 1994 when she came to Canada with her family. Strangely, she gave evidence that a B.A. degree in the Philippines was equal to grade 10 in Canada and a Master's degree was equal to grade 12. I think what she probably meant was that because university entrance can occur after 10 years of schooling in the Philippines, the completion of a first level university program, in that country, is not treated as the equivalent of a Canadian B.A. or B.Sc. In any event, it is clear that her first level degree is not equivalent to a Canadian first level university degree.
[4] The respondent did not work when she was in Canada in 1994, except for a short period of time, at Christmas, for Canada Post. She states that she was not willing to take just any job but was looking for a job with sufficient intellectual content and could not find one. In the fall of 1994 she applied to enter a Graduate Studies program at the University of British Columbia but was refused because her academic record did not "meet the minimum requirements for admission to graduate school". She allegedly also applied at Simon Fraser University. She returned to the Philippines in January of 1995, moving back into the apartment where she and her family had lived before coming to Canada, and she resumed her Master's degree program. She also did consulting work for her former employer. A Master's degree was attained in April 1997, and she immediately applied for admission to a Ph.D program at the University of the Philippines, which admission was granted.
[5] The respondent made enquiries in Canada, when she was here in 1994, or at the latest in the fall of 1995, with respect to what was required for her to become qualified as an engineer in British Columbia. The Association of Professional Engineers of British Columbia provided such information, including examination schedules. The respondent, however, took no steps to attempt to qualify herself for a professional engineer's designation in Canada. She was very forthright in stating that she knew the educational systems of the Philippines and Canada were different and that she could not expect to have her Philippine qualifications accepted as equivalent to a Canadian P. Eng. designation. She also stated that, initially, she had planned to apply for Canadian citizenship at a later time, after she had completed her Philippine studies and had returned to Canada, but her family had persuaded her to apply at the earlier date, at the same time that the other family members were applying.
[6] Counsel for the Minister takes the position that the applicable test, when determining whether physical absences from the country should be treated as residence within it, is found in Re Chow (1997), 40 Imm. L.R. (2d) 308 at 310 (F.C.T.C.):
| There is jurisprudence which does not require the physical presence of an applicant for citizenship in Canada for the entire 1,095 days, when there are special or exceptional circumstances. However, in my view, too long of an absence from Canada, albeit temporary, during that minimum period of time, as in the present case, is contrary to the purpose of the residency requirements of the Act. Indeed, the Act already allows a person who has been lawfully admitted to Canada for permanent residence not to reside in Canada during one of the four years immediately preceding the date of that person's application for citizenship. [emphasis added] |
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[7] The amicus curiae called my attention to Re Khoury, [1995] F.C.J. No. 1518, which decision dealt with a student who was studying for a doctorate in medical microbiology at the University of Georgia, in the United States, when he and his parents were admitted as landed immigrants from Lebanon, to Canada. After being landed in Canada, he returned to finish his doctorate in Georgia. The Court held that a student who had "centralized his ordinary mode of living" in Canada and then left to temporarily pursue his studies in the United States "had not broken the continuity" of his establishment here, and his absences should be treated as physical residence within the country.
[8] More recently, Mr. Justice Lemieux in Re: Ng Tai Kong (T-396-98, May 4, 1999) reviewed the decisions that have dealt with students. He noted that the same tests apply for residency in student cases as for other applicants for Canadian citizenship. He noted that it is often difficult to decide, in the case of students, whether they have really centralized their mode of living in Canada. I quote from his decision:
| Most of the jurisprudence I was referred to dealt with student cases. As I read those cases, this Court has applied the same interpretive tests for residency in student cases as it has for other applicants for Canadian citizenship recognizing the difficulty and, I would add, sensitivity of application in cases of students who pursue their studies abroad. Denault J. expressed it this way in Re Kwan, court file T-2748-97, November 26, 1998: |
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| It is difficult to decide whether students pursuing their studies abroad shortly after their parents have established themselves in Canada, have themselves centralized their mode of living in this country. |
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| Counsel for the respondent points out that Mr. Ng had only been in Canada thirty-eight days before he returned to Hong Kong to pursue his studies and that this was to be contrasted with a number of cases such as the Papadogiorgakis case, (supra) [Re Papadogiorgakis, [1978] 2 F.C. 208], where he was living in Canada four years studying at Acadia University before pursuing post-graduate studies abroad; Re Michael Brian Wasser, October 10, 1996, T-2330-95, where Noël J. (as he then was) allowed a student's appeal because he had "lived in Canada continuously between the ages of seven and twenty-seven before leaving to begin his advanced studies in the United States" and Re Thomas Alan Keahey, June 4, 1997, T-265-96, where Pinard J. allowed a student's appeal because that student had regularly, normally and customarily lived in Canada with the rest of his family for some twenty years before his long absences abroad to complete his studies. |
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| Counsel for the respondent argued that Mr. Ng lived with his extended family in Hong Kong (his uncle); pointed out that the length of the absences were substantial (904 days) and he was considerably short of meeting the residency requirements. Counsel also pointed out that the pattern of physical presence in Canada indicates Mr. Ng is not returning home but is merely visiting and that his absences were not for a temporary purpose. |
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| Mr. Ng failed to satisfy me that he had established his centralized or ordinary mode of living in Canada so that his days of absences could be computed for the purpose of the residency requirements under the Act. I base my decision on the following elements of the total circumstances of this case as I see them. |
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| First, Mr. Ng returned to Hong Kong after only thirty-eight days in Canada. The similarity in Re Kwan (supra), and Re Moulot, November 25, 1997, T-962-97, Pinard J. is striking. |
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| Second, although a student and dependent on support from his family, Mr. Ng's return to Hong Kong was largely voluntary, a matter of choice. He had been accepted at the University of Toronto, albeit as a freshman. He did not accept that offer of enrolment because it would have taken him a couple of years more to obtain his Canadian degree. His ordinary mode of living would have been centralized in Canada. He preferred, as a matter of choice, to return to Hong Kong to obtain a quicker degree which he knew would not have the same recognition as a degree awarded from a Canadian university (see Re Kwan, (supra)) and which would have enhanced his integration in this country. I am not satisfied that the reason he did not accept the offer at the University of Toronto was for financial reasons. |
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| Third, after graduation from the University of Hong Kong, he did not aggressively pursue employment in Canada but again, as a matter of choice or convenience, accepted work with his father's firm but work which required him to be absent from Canada (Re Lee, November 5, 1997, T-137-97, Gibson J. is similar). |
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| Fourth, Mr. Ng was required to demonstrate some connection to Canada, some attachment to this country and not simply to his family. Mr. Ng failed to demonstrate a sufficient connection to Canada (see Re Shang, January 23, 1998, T-1186-97, Wetston J.; Re Chan, February 18, 1998, T-1870-97, Joyal J.). |
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[9] There are many similarities between the respondent's situation and Mr. Ng's. While she was in Canada for a longer period of time before leaving than he was, she did not seriously pursue the obtaining of employment here. While she applied for admission to graduate school in Canada, she did not apply for entrance to a first level university program the completion of which would qualify her for employment in her chosen profession in Canada. Her decision to return to the Philippines was voluntary. When in the Philippines she lived in the same residence that she had lived in before she came to Canada. This had been the family's home at that time and where she had belongings and personal effects. One or more extended family members also lived with her there when she returned. After graduation with a Master's degree from the University of the Philippines, she did not aggressively pursue employment in Canada but, again, as a matter of choice, enroled in a university program that required her to remain in the Philippines. When in Canada she lives in her family's residence here. I can accept that she has not come back frequently because it is expensive to do so. I do not believe she has really decided, yet, to move to Canada and become established here. Her actions in pursuing academic studies that enhance her employability in the Philippines, instead of seeking to become qualified in her chosen profession in Canada demonstrate an ambivalence about establishing herself here. I cannot conclude that she has centralized her ordinary mode of living in Canada. Her connection to Canada is to her family, not the country.
[10] The fortunate aspect of a case such as the respondent's, however, is that she is not precluded from reapplying for Canadian citizenship at a later time, if she decides to establish in Canada.
[11] For the reasons given, the appeal will be allowed.
(Sgd.) "B. Reed"
J.F.C.C.
Vancouver, British Columbia
June 2, 1999
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-865-98
STYLE OF CAUSE: Re Ruby Socorro Masa Arico
PLACE OF HEARING: Vancouver, British Columbia
REASONS FOR ORDER OF REED J.
dated June 2, 1999
APPEARANCES:
| Ms. H. Park for the Appellant |
Ms. Ruby Arico on her own behalf
| Ms. J. Fisher amicus curiae |
SOLICITORS OF RECORD:
| Mr. Morris Rosenberg for the Appellant |
Deputy Attorney General
of Canada
| Ms. Ruby Arico on her own behalf |
| Ms. Julie Fisher Amicus Curiae |
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