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
CHI
TAI WONG,
Appellant
-
AND -
T-1835--96
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
CHI
YUEN WONG
Appellant.
REASONS
FOR JUDGMENT
GIBSON, J.:
These appeals were heard before me in
Toronto, Ontario on September 3, 1997. The appellants, brothers, appeal
decisions of a Citizenship judge, both dated May 29, 1996, refusing their
applications for citizenship on the basis that they did not meet the requirement
of residence for Canadian citizenship under paragraph 5(1)(c) of the Citizenship
Act.
The appellants received separate decision letters. The letters are dated
before the date of the appellants' hearings before the Citizenship judge which
took place on June 10, 1996, thus giving rise to a concern that the decisions
may have been made before the appellants had an opportunity to present their
cases before the Citizenship judge. Both appellants testified before me that
the outcome of their applications appeared, from the moment the hearings
commenced, to be mere formalities only.
The content of the two decision
letters received by the appellants was virtually identical. Before me, counsel
for the appellants acknowledged that the factual situations underlying the
appeals of his two clients are essentially identical. That being said, as
indicated earlier, both appellants testified before me.
According to the evidence that was
before the learned Citizenship judge and before me, the appellants, both citizens
of the United Kingdom, arrived in Canada and were landed on February 9, 1992,
together with their parents and their sister. Each returned to the United
Kingdom on February 25, to continue his education: in the case of Chi Yuen
Wong, in dentistry at the London Hospital Medical College; and in the case of
Chi Tai Wong, in economics and business at the University of Birmingham.
During the brief time that they were in Canada, they attended at a number of
Ontario universities to enquire as to the possibility of continuing their
studies here in Canada. Both determined that they would incur a substantial
penalty in terms of a number of years devoted to requalification, if they
wished to pursue their studies here in Canada. In the result, although their expressed
preference was to continue their studies in Canada, they felt compelled to
return to the United Kingdom.
The appellants' parents purchased a
home in Waterloo, Ontario in which each of the appellants established and
maintained his own room. Each testified that he maintained all of his personal
effects in his room and otherwise at his parents' home, with the exception only
of basic clothing requirements for the periods while studying in England. Each
lived in student accommodation in England. On the weekends they stayed with
an uncle. Each returned to the family home in Waterloo for brief Christmas
holidays. At other times their educational programs precluded return although
Chi Tai Wong testified that he did return to Canada during one summer. That
return to Canada was not documented. Both appellants returned with the aid of
returning resident permits.
Both appellants testified with great
sincerity as to their desire and intention to make Canada their permanent
home. At the time of the hearing before me, Chi Tai Wong had completed his
studies and was living here in Canada. He was diligently searching for
employment but had not yet been successful in his search. Chi Yuen Wong
expected to complete his dental studies in London in 1998 when he intended to
return to Canada, despite the fact that he apparently would not be permitted to
practice general dentistry here. He testified that, if necessary, he would
attend a canadian dental school to upgrade his training and establish a
specialty that he would be able to practice in Canada.
I referred briefly to the sincerity
with which the appellants testified as to their commitment to make Canada their
permanent home. Further, it was evident through their testimony that they were
deeply committed to cultivating friendships in Canada, expanding their exposure
to Canadian culture, interests, practices and customs, and, in short, to
thoroughly "canadianizing" themselves. That being said, their
opportunities to achieve these ends had, at the date of their applications for
Canadian citizenship, been very limited. In the four years preceding the dates
of their applications, their documented periods of residency in Canada
amounted, in each case, to some 55 days, far short of that required by paragraph
5(1)(c) of the Citizenship Act as a condition to a grant of Canadian
citizenship.
In Re Lee, Madame Justice Reed wrote:
I have no doubt that the appellant would make an
excellent citizen of Canada. She has been studying in England since she was
sixteen and is presently completing medical studies at the University of
Cambridge. She came to Canada on May 24, 1991, along with her parents and
siblings. The whole family became landed immigrants on that date. The
appellant left two days later to return to the United Kingdom, to continue her
studies there.
She applied for citizenship on July 4, 1994.
Within the preceding four year period she had resided in Canada for one hundred
and sixty-five days. She was short 930 of 1,095 days of residence required by
the Citizenship Act . By no stretch of the imagination can it be said that she
has satisfied the residency requirements of the Act.
It is argued that her centralized mode of
existence is in Canada because her family is here and because the quality of
her residence in the United Kingdom has been as a student. I cannot so
conclude. She is not a minor. Her chosen profession is one with respect to
which it is well-known there are substantial barriers to entry in Canada for
persons not trained in Canada. She has been a student in the United Kingdom,
now for many years. Perhaps one day she will come to Canada and fulfil the
residency requirements. In that case she will be entitled to citizenship. I
sincerely hope she does so because, as I have indicated, I am of the view that
she would be an excellent addition to our citizenry.
The
facts that were before Madame Justice Reed in Re Lee were strikingly
similar to the facts on these appeals. While it cannot be said in respect of
Chi Tai Wong that there are "substantial barriers to entry in Canada for
persons not trained in Canada" in his field of study, economics and
business, I am satisfied that it can be said that gaining employment on the
basis of such studies, without work experience, is not easy here in Canada at
the present time. Madame Justice Reed's comments regarding substantial
barriers for those who have trained in medical studies outside Canada can
certainly be said to apply with respect to Chi Yuen Wong who is in the course
of completing his studies in dentistry. I reiterate Madame Justice Reed's
opinion with respect to Ms. Lee in respect of the two appellants before me. I
am of the view that they would be excellent additions to our citizenry in
Canada.
Counsel
for the appellants was not familiar with the decision in Re Lee. I
expressed a preliminary view at the hearing of these appeals that the
disposition of them should be the same as in Re Lee, that is to say,
that the appeals should be dismissed. That being said, I invited counsel to
give consideration to Madame Justice Reed's reasons and I provided time to
counsel, as well as to the amicus curiae, to make written submissions on
the question of whether Re Lee could be distinguished.
Counsel
for the appellants provided written submissions and urged that Re Lee be
distinguished and that I should adopt the reasoning of MacKay J. in Re Grace
Kar Yan Cheung
where MacKay J. relied in part upon the following passage from In re
Secretary of State of Canada and Abi Zeid:
The fundamental principles which emerge from
decisions in this area are that it is not necessary to be physically and
continuously present in Canada throughout the required period. However, a
person who is physically absent must first, before his absence, have established
residence in Canada, and then in some way continue his residence in Canada
while he is absent abroad.
I
cannot conclude that the foregoing statement of principles is of aid to these
appellants. I cannot conclude that they established residence here in Canada
when they first arrived and spent a mere fifteen days here. To reach a
conclusion that the appellants has established residence in such a short
period, when taken together with all of the other factors arising on these
applications, would not be to give a liberal interpretation to paragraph
5(1)(c) of the Citizenship Act, when read in the context of the whole
Act. Rather, such a conclusion would, in my view, render that provision
essentially meaningless. I am not prepared to go that far. If Parliament
intended such an interpretation, it is for it to say so in plainer language
than that which it has adopted.
Counsel
also referred me to a very recent decision of Madame Justice McGillis in Re
Suet Ki Amy Lee
where a citizenship appeal was granted and Re Grace Kar Yan Cheung was
relied on. It is not clear whether Madame Justice Reed's decision in Re Lee
was cited before Madame Justice McGillis.
I
remain convinced that the passage from Re Lee quoted above is fully
applicable to the facts of these appeals. In the result, these appeals are
dismissed.
____________________________
Judge
Ottawa, Ontario
September 29 , 1997
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