Date: 19990625
Docket: T-803-98
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
BETWEEN:
ZHENWEI DAI
Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY J.
[1] In her decision of March 6, 1998, the Citizenship Judge concluded that the applicant did not meet the residency requirement in paragraph 5(1)(c) of the Citizenship Act. The applicant was physically present in Canada for approximately 827 of the required 1,095 days, during the four-year period immediately prior to the filing of his application for citizenship. The applicant appeals this decision, pursuant to subsection 14(5) of the Act. The appeal proceeded as a de novo trial under Rule 902 of the former Federal Court Rules.
[2] The applicant was born in Shanghai and is a citizen of China. In October 1992, he entered Canada under a student authorization and was registered as a foreign student at Queen"s University, where he obtained a Masters in Public Administration in 1994. He rented premises during his two-year stay in Kingston, Ontario.
[3] Between 1994-96, the applicant was self-employed as a financial analysis consultant and was principally engaged under a contract that extended over two years with a Toronto firm of management consultants. During this time, he rented premises in Toronto.
[4] In March 1995, the applicant obtained permanent residence status. Shortly thereafter, his wife was landed in Canada under his sponsorship.
[5] Between 1996-98, the applicant and his wife moved to Leuven, Belgium to pursue their academic studies. In June 1998, the applicant obtained his Masters in Business Administration from Catholic University in Leuven. As part of his M.B.A. program, the applicant spent approximately three months in late 1997 in Rochester, New York as part of an exchange program. According to his testimony, his academic workload while in Rochester did not permit him to travel to Canada. The applicant had a twofold motivation to study in Belgium: he wished to enhance his international experience and the tuition fees there were substantially less than those in Canada.
[6] In September 1998, the applicant took up employment as an internal auditor with a major Canadian corporation in Vancouver, British Columbia. He chose this employment over two other job offers, one from a German company which would have required him to return to China and the other from an international accounting firm to work in Singapore. He was interviewed for his position in Canada during a short visit to London, England while he was a student in Belgium. The applicant and his wife have been residing in Canada since September 1998.
[7] In April 1997, the applicant applied for Canadian citizenship while he was in Belgium. The relevant period for the residency requirement began in April 1993.
[8] In summary, the applicant was in Canada on a full-time basis between October 1992 and August 1996. On the basis of the formula in subparagraphs 5(1)(c)(i) and (ii) of the Act, the applicant was credited with 827 days presence in Canada to take into account that his status as a permanent resident was obtained in March 1995. Because the remaining period between August 1996 and April 1997, when he applied for citizenship, was spent in Belgium, the applicant was some 285 days short of the residency requirement in section 5.
[9] In Papadogiorgakis,1 Thurlow A.C.J. stated:
| 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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In Papadogiorgakis, the applicant was absent for substantial periods during the material four years. However, he returned to his Canadian residence, a room in the home of friends in Nova Scotia, frequently on weekends and during academic vacation periods. This passage implies that the permanent resident has not only centralized his mode of living in Canada but has maintained a residence here during the period of his absences.
[10] In his transmittal letter forwarding his application for citizenship in April 1997, the applicant stated:
| After living in Canada for more than 3 years, I have developed a sense of belongingness because my belief in multiculturalism, democracy, human rights and environmentalism has a natural fit in Canadian society. Compared to other countries I have lived or traveled, Canada provides the best quality of life. I would like to have Canada my homeland and I believe that my global education will allow me to make a valuable contribution to Canada. [Emphasis added.] |
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If he had maintained a residence in Canada while he was in Belgium, the applicant might have been able to state that he had been residing in this country since 1992 or for some five years. I can only infer from the opening words from the above-cited passage from his transmittal letter that, in his own mind, the applicant had not been "living in Canada" while abroad for his studies. This is consistent with his other acknowledgment that he had no pied-à-terre in Canada when in Belgium.
[11] The applicant"s interview with the Citizenship Judge was in early March 1998. At that time, it appears that the applicant had yet to accept his employment position in Vancouver. I infer this from the following paragraph of the decision of the Citizenship Judge:
| During the hearing you stated that you and your wife are studying in Belgium because Belgium has a lot to offer young people. At no time did you express any pressing desire or plan to return to this country. During your absence from Canada you have not maintained a residential base and you have not visited Canada. [Emphasis added.] |
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[12] In Khoury, Re.2 where the permanent resident had been pursuing studies outside Canada, Justice Denault concluded that: "... he has genuinely established a pied-à-terre in Canada even if he was physically present in this country for only 102 days during his reference period." In this case, I find that the applicant had no pied-à-terre in Canada while he was studying in Belgium.
[13] In summary, I have concluded, with some reluctance, that the applicant"s application for citizenship in April 1997 was premature. While a strong argument can be made that he had established some centralized mode of living in Canada between 1992 and 1996, he maintained no significant presence in Canada while he was studying in Belgium. His very modest 1997 income tax return, his bank and credit card accounts, and his apparent Kingston, Ontario mailing address, concerning which there is very little evidence that it was actually used, are insufficient indicia of the maintenance of a residence in Canada.
[14] Hopefully, the applicant and his spouse will continue their employment and residence in Canada and he will re-apply for citizenship at the appropriate time. The comportment and demeanour of the applicant during his testimony in this de novo trial was exemplary and I am satisfied that he will bring much to Canada as one of its citizens, when the residency requirement has been met. In the meantime, this appeal must be dismissed.
"Allan Lutfy"
J.F.C.C.
Ottawa, Ontario
June 25, 1999
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1 [1978] 2 F.C. 208 (T.D.) at 214.
2 (1995), 33 Imm.L.R. (2d) 247 at 249-50.
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