Federal Court Decisions

     T-1981-96

     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

     WAI PANG RAPHAEL CHAN,

     Appellant

     REASONS FOR JUDGMENT

     This is an appeal from the decision of a Citizenship Judge who denied this appellant Canadian citizenship on May 7, 1996. It was determined that Mr. Chan did not meet the residency requirement under paragraph 5(1)(c) of the Act which requires that an applicant for Canadian citizenship must have accumulated at least three years of residency in Canada within the four years immediately proceeding his or her application. The Citizenship Judge found that the appellant had only been physically present in Canada 328 days leaving him 767 days short of the required 1,095 days to meet the residency requirement.

The Citizenship Judge determined that the appellant did not meet the requirements of paragraph 5(1)(c) of the Citizenship Act. In particular, the Citizenship Judge determined that immediately after the appellant's landing, he had not established residence in Canada by virtues of a centralized mode of living in Canada. Even though, the Citizenship Judge established that the appellant had some connections with Canada during his absences, she did not find that Canada was where the appellant had a "settled routine of life" or where he "regularly, normally or customarily lived". Finally, pursuant subsection 15(1) of the Act, the Citizenship Judge did not find any grounds under subsections 5(3) and 5(4) of the Act to recommend an exercise of Ministerial discretion.

     Since appeals to the Federal Court under subsection 14(5) of the Citizenship Act are trial de novo, your Lordship is permitted to consider all of the evidence including the appellant's testimony and that of any other witness.

     In his notice of Appeal the appellant submits as follows:

1. The judge erred in law by requiring physical presence in Canada pursuant to Re Papadorgiakis and the line of cases following that reasoning.

     The appellant was born in Hong Kong, on March 3, 1973. He entered in Canada on December 22, 1991, accompanied by his parents and his sister. On January 4, 1992, the appellant returned to England to complete his education at Etham College where he had been studying since 1990. After his graduation, in the spring of 1992, he returned to Canada briefly, then returned to the U.K. to attend the University of Manchester (England) where the computer science degree that he wished to pursue was offered in three year program. The appellant was expected to graduate from this program on July 2, 1996; his school records have been submitted in this file. The appellant has stated that following graduation he would seek work in Canada.

     While away at school, the appellant has held a valid B.C. provincial driver's licence, filed personal income tax returns in Canada and paid premiums to the provincial health plan through his parents' coverage. He has also maintained a bank account with an average of a low six figure balance with the Honk Kong Bank of Canada in B. C. since April 20, 1992. He also lives with his parents when he is not attending school and most of his personal belongings are kept there.

     The appellant appeared before me at Toronto on October 23, 1997. He had been attending school for one and a half year in the U. K. until December of 1991. During the Christmas Holidays he went to Hong Kong to join his parents who were then migrating to Canada. His father immigrated to Canada under the investor category. He forwarded his personal belongings with his father's furniture to Richmond, B.C., where the father had purchased a home. In January of 1992, he returned to England to complete his semester at the college he had been attending; when the school term ended in May of 1992, he returned to Canada very briefly and returned to the U.K. since he had, sometime in the fall of 1991, made an application to attend medical school. Upon his return to the U.K. he did voluntary work in a nursing home anticipating that he would be accepted in medical school; he was rejected in August of 1992. He then was in contact with some of his friends in Canada and wanted to enroll in a three year computer science course and was told by his friend that there was none available. He then proceeded to a series of interviews in the U.K. while continuing his voluntary work and was eventually accepted at a highly reputable institution in the field of computer science, Manchester University, where he graduated after three years in the Spring of 1996. While attending to his studies in the U. K. he lived with relatives until he enrolled at Manchester University where he took up residence in a dormitory on campus.

     During the course of his years in the U.K. he always returned to Canada at Christmas, Easter and during the summer vacation.

     After graduating, in the Spring of 1996 he enrolled in a Master's Program at the same University and graduated in 1997. He has returned to Canada along with his belonging and is now looking for work in this country.

     When initially in this country, he applied for and obtained a driver's licence, health card and other necessary documentation indicating his residence being Canada.

     When he left Hong Kong with his parents, his father sold the family home; he has no other pied-à-terre or home or residence in the world except Canada. Upon being questioned by the amicus curiae, he said that throughout his studies overseas he was always determined to return to Canada to earn his living and he is presently here looking for work.

     The jurisprudence in this Court with respect to students seems to suggest that if one must be satisfied that the appellant has remained a dependent of his parents in Canada, that they paid for his education, that he returned here during the summer and other types of holidays, that it was always his intention to return to this country. This appellant complies with these conditions. He always intended to return; his motives were unchallenged and his residence should not be considered having been interrupted. He is now looking for work in Canada and, effectively, he has no other residence or home to go to except this country. Along with the amicus curiae's concurrence, I allow this appeal.

JUDGE

OTTAWA, Ontario

October 28, 1997