Federal Court Decisions

Date: 20020311

Docket: T-2042-00

Neutral Citation: 2002 FCT 270

Ottawa, Ontario, this 11^th day of March 2002

PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER

BETWEEN:

BONNIE AH CHEER CHAN

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1]    This is an appeal from the decision a Citizenship Judge dated 11 September 2000 in which he dismissed the applicant's citizenship application on the ground that she did not satisfy the residence requirement found at paragraph 5(1)(c) of the Citizenship Act, R.S.C. 1985, c.C-29. The material establishes that the applicant was in Canada for 348 days in the four years preceding her application for citizenship, considerably less than the three years of residence (1095 days) in the four years preceding her application required by the Act.

[2]    The applicant was born on January 1, 1975. She and her mother entered Canada as landed immigrants on August 2, 1994 at which time she was 19 years of age.    Her affidavit recites that at the time she was a student at Columbia University and that "After landing, I had to return to the United States to continue my studies." There is no indication in the file how long the applicant was in Canada prior to the commencement of the four year statutory period which began on January 18, 1995. However, it does show that she left Canada on January 14, 1995 to return to Columbia University where she was pursuing undergraduate studies. She followed this by architectural studies at Harvard University. It is her position that there were no equivalent programs in Canada. During this course of studies, she returned to Canada sporadically for a total of 348 days, eventually returning to Canada in January 1999 to intern with a Canadian architectural firm.

[3]    The applicant had all the usual indicia of residence in Canada such as:

- a social insurance number

-a health card

-an Ontario driver's licence

-a North York Public Library card

-an account at a Canadian bank

-credit and client cards from the same bank.

She also filed income tax returns in Canada for the taxation years 1994 to 1998.

[4]                 The applicant maintained a strong interest in Canadian subject matter in the course of her architectural studies at Harvard University. She wrote a paper on planning in the Metropolitan Toronto area and assisted in the design of the New Annex Compound of the Canadian Embassy Beijing, People's Republic of China.

[5]                 The applicant applied for citizenship almost immediately upon her return to Canada.    In the course of the interview with the Citizenship judge, the applicant formed the opinion that her application would receive favourable consideration. The judge asked her to drop off a copy of her planning paper. She was therefore surprised to find that her application was dismissed. She was all the more surprised when she discovered upon production of the tribunal record that the judge had decided to dismiss her application on the day of her interview, July 14, 2000, without waiting for her to deliver the paper which he had requested.

[6]                 In his letter dismissing her application, the Citizenship Judge said the following:

     According to the evidence on your file and presented to me at the hearing, your absences from Canada total 1112 days in the four years preceding your application for Citizenship (18 January, 1999). During this period you were physically present in Canada for 348 days. In these circumstances, you had to satisfy me, in order to meet the residence requirements, that your absences from Canada (or at least a part of these) could be counted as a period of residence in Canada. Federal Court precedents require that, to establish residence, an individual must show, in mind and in fact, a centralization of his or her mode of living in Canada. If such evidence is established, absences from Canada do not affect this residence as long as it is demonstrated that the individual left for a temporary purpose only and maintained in Canada some real and tangible form of residence. I have, therefore carefully examined your case to determine whether you had established residence in Canada prior to your absences such that those absences could nevertheless be counted as periods of residence.

     Although, you had demonstrated a strong attachment to Canada through your relationship with your family, your absences from Canada far outweigh your presence. You were knowledgeable about Canada and society but would not be able to participate in Canadian society to become "Canadianized" because of being absent more than 75% of the time. Physical presence is still an important factor in determining citizenship.

     After having considered the evidence that I received both by way of testimony and documentation, I could not find that you have established a residence in Canada by virtue of a centralized mode of living in Canada in the four years preceding your application for Canadian Citizenship.

[7]                 The applicant says that the Citizenship judge misapplied the test for residency by confusing two tests, that of centralized mode of existence set out in Re Papadogiorgakis, [1978] 2 F.C. 208, and that of mere physical presence found in Re Pourghasemi, [1993] F.C.J. No. 232. The applicant relies upon the decision of Lutfy J. (as he then was) in Re Lam, [1999] F.C.J. No. 410 which concludes that a Citizenship judge is entitled to apply either test so long as it is properly applied. This is a conclusion arrived at after consideration of the standard of review of decisions of citizenship judges and the fact that all Federal Court - Trial Division decisions are equally binding upon Citizenship judges. The applicant says that the judge in this case confused the two tests and thereby committed a reviewable error.

[8]                 The applicant also says that she was denied a fair hearing in that the Judge failed to consider the material which he had asked the applicant to provide him before making his decision. No authority is cited in support of this proposition.

[9]                 In order to meet the requirements of the Citizenship Act, residence must first be established and then it must be maintained.     It is only if residence is established that it can be maintained. Residence is not established by the mere fact of landing. In the present case, the evidence of establishment of residence is not strong. The applicant's own affidavit discloses that she returned to the United States more or less upon landing to resume her studies. She relies upon the fact of having a room in her parent's room as well as certain passive indicia of residence to establish her residence in Canada.

[10]            This issue was considered by the Cattanach J. in Re Pattni, [1980] F.C.J. No. 1017 where the learned judge held as follows:

[para35]      In order that physical absences from Canada may count as residence in Canada an applicant must first have established a residence in Canada.

[para36]      In Re Perviz Mitha decided by myself on June 1, 1979 I had occasion to say this:

It seems to me that in determining whether physical absences from Canada are for such temporary purpose as will not break the continuity of residence there must first be a "residence" established and that is a matter of degree with respect to how the person "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" but residence should be distinguished as in ordinary speech.

[11]            See also Canada (Secretary of State) v. Yu, [1995] F.C.J. 919 (T.D.), a decision of Rothstein J. (as he then was) which holds that a failure to establish residence is fatal to an application for citizenship.

[12]            Another case which raised the same issue in the context of a student like the applicant isCanada (Minister of Citizenship and Immigration) v. Lam, [1999] F.C.J. No. 651 where the applicant, who was 22 years old at the time, accompanied her parents to Canada for the purpose of being landed and then returned to her studies in the United States. She returned to Canada on occasion as well as holidaying in Hong Kong. She applied for citizenship and was found to be well short of the 1095 required days of residence. Simpson J. said this about the question of establishing residence:

[para10]      However, Papadogiorgakis is not authority for the proposition that a student can come to Canada for a short time, not establish initial residence, then spend long periods of study and vacation abroad and, on that basis, expect to meet the residence requirement for Canadian citizenship. I should observe that establishing residence is not only a matter of assembling the usual paperwork associated with residence (health card, social insurance card, bank card, tax returns, library card, driver's license, etc.), In my view, some effort to integrate into and participate in Canadian society is also necessary. This could occur in a workplace, in a volunteer group, or in a social or religious activity, to name just a few possibilities.

[13]            The same issue arose again in Chan v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1796 where Wetston J. also had before him an applicant who was a student at the time of landing. This is what he said about establishing residence:

[para9]      In my opinion, where physical presence is minimal, the most important consideration is the quality of the applicant's attachment to Canada. There must be evidence to show a genuine attachment to Canada. This attachment must go beyond having only connections to family located in Canada, a Canadian driver's license or a social insurance number.

[para10]      There are a number of considerations which may serve to highlight this attachment.     Did she make substantial efforts to return to Canada during breaks? If not, why not? For example, did she return to Canada during summer breaks and obtain summer employment or do community work in Canada? In the course of those visits, did she engage in activities which would further her integration into Canadian society? For example, did she join a social club, athletic club, church group or take a course or program? Did she make a reasonable effort to determine if alternate programs existed in Canada which could satisfy her educational goals and to enrol in those programs?

[para11]      In summary, the appellant must establish residence in Canada in mind and in fact. She must have centralized her mode of living in Canada.           

[14]            It is not obvious from the material before the tribunal when the applicant would have established residence in Canada, given her rapid return to the United States to continue her education. She returned to Canada for various periods of time in the course of the next four years but in the absence of having established a residence, these periods of presence in Canada could not maintain a residence which had not been established. There is nothing in the material which was before the Citizenship Judge to show that in the periods in which the applicant was in Canada, she engaged in any acitivity which could constitute integration or participation in Canadian society. The only possible exception is a reference in the representations of counsel that the applicant became a student member of the Toronto Society of Architects. Taken by itself, this would not be sufficient to establish residence.

[15]            The excerpt from the Citizenship Judge's reasons quoted above show that he addressed his mind to the question of establishment of residence and concluded that he could not find that the applicant had established a residence in Canada. His conclusion is supported by the record before him and ought not to be disturbed.

[16]            Counsel's representations as to the effect of the decision of Lutfy A.C.J. in Lam, supra, do not assist the applicant because the issue in this case is whether residence has been established, not whether it has been maintained. There is no disagreement on the question of whether residence must be established before it can be maintained, so there is no opportunity to follow one line of cases or the other. There is only one line of cases.

[17]            As for the applicant's assertion that she has been denied natural justice, the applicant's case amounts to saying that, having asked the applicant to submit further material, the judge was bound to consider it before making his decision. While this argument might have merit if the material requested were relevant to the issue under consideration, it cannot succeed where the additional material is not relevant to the issue. The applicant's paper on planning in Metropolitan Toronto may have been a matter of particular interest to the Judge but it was not relevant to the issue of proof of establishment of residence. In my view, there was no denial of natural justice.

ORDER

The appeal from the decision of the Citizenship Judge dated September 11, 2000 is hereby dismissed.

        "J.D. Denis Pelletier"         

                                                                                                          Judge