Date: 19990428
Docket: T-2394-97
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
BETWEEN:
YU MING KUO
Appellant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
SIMPSON, J.
[1] This is an appeal by Mr. Yu Ming Kuo (the "Appellant") by way of trial de novo under s. 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 (the "Act") and s. 21 of the Federal Court Act, R.S.C. 1985, c. F-7, from a decision of a Citizenship Judge dated September 11, 1997, in which the Judge did not approve the Appellant's application for Canadian citizenship.
[2] The Appellant represented himself most effectively in this appeal. He gave evidence under oath and presented both written and oral submissions.
THE FACTS
[3] The Appellant became a landed immigrant on January 1, 1994, when he arrived in Canada with his father. They joined his sister who was already in Canada. The Appellant's mother arrived a few months later.
[4] The Appellant stayed in Canada for ten days. During that time he helped his family settle into a house they already owned in Richmond Hill.
[5] In 1991, before his family moved to Canada, the Appellant had begun studies towards two bachelor's degrees at the University of Michigan at Ann Arbor. He studied both computer and electrical engineering. He was in the middle of these studies when he came to Canada and that is why he left Canada after only ten days here. He returned to Ann Arbor to continue his studies and graduated in May 1995. That month, he took a job in Boston where he worked as a software engineer for two years. Prior to taking the Boston position, he did not make any meaningful effort to find employment in Canada. He stated that he took the Boston position for financial reasons.
[6] In September 1997, the Appellant undertook graduate studies at Stanford University and obtained a master's degree in electrical engineering. He graduated in March 1999. His parents paid his tuition throughout.
[7] The Appellant has just returned to Canada to his family home in Richmond Hill. He is presently seeking employment in Canada and says that it has always been his intention to work and reside here.
[8] The residency requirement for Canadian citizenship is found in section 5(1)(c) of the Act. It provides:
| Grant of Citizenship |
| 5. (1) The Minister shall grant citizenship to any person who |
| ... |
| (c) has been lawfully admitted to Canada for permanent residence, has not ceased since such admission to be a permanent resident pursuant to section 24 of the Immigration Act, and has, within the four years immediately preceding the date of his application, accumulated at least three years of residence in Canada calculated in the following manner: |
| (i) for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and |
| (ii) for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence; ... |
[9] In the four-year period before his application for citizenship, the Appellant must have been resident for 1095 days. In this case, the Appellant was physically absent for 1002 of those days. In this situation, the question is whether the Appellant can be said to have been a resident in spite of his extensive physical absences.
[10] The Appellant says he did everything that a student could reasonably do to establish and maintain his Toronto residence. He set up and maintained a room in his family's house and there kept clothes, books and a computer. He visited his family when possible but conceded that demanding studies and travel costs reduced the number of trips he made home. He stated that he did come home when he had time off during his two years in Boston. In Toronto, he belonged to a library and was a member of a crystal collection club.
[11] The leading case on student residence is Papadogiorgakis [1978] 2 F.C. 208 (T.D.). In that case, a student who had almost no physical presence in Canada during the relevant four-year assessment period, had lived here for four years and had established a centralized mode of living prior to departing for study abroad. Further, during his absence, he maintained a Canadian residence, returned regularly, and took most of his holidays in Canada.
[12] The Papadogiorgakis decision indicates that the Court may treat a student as a resident, despite substantial physical absence, if that student established and maintained residence in Canada by centralizing his or her mode of living in Canada, and was abroad only for temporary studies and returned frequently.
[13] The Appellant does not meet these criteria. Firstly, he did not establish a centralized mode of living in Canada after landing. He could not, in the ten days available to him, meaningfully establish himself and participate in Canadian society. Indeed, his evidence is that his focus, quite understandably, was on helping his family settle in their new home. Secondly, the Appellant did not return to Canada whenever possible. He stayed in Boston for two years between his periods of study. This may have made financial sense, but it is not the conduct of a student with a centralized mode of living in Canada.
[14] The Appellant referred to a number of cases in support of his appeal. Three are notable. In Re Cheung (1990), 32 F.T.R. 245 (T.D.), MacKay J., the student, like the Appellant in the case at bar, landed in Canada with her family but almost immediately returned to Hong Kong to complete her medical studies. This student's situation is distinguishable from the case at bar because she continued to be completely dependent financially on her parents and she did not choose to work abroad.
[15] Similarly, in Re Khoury (1995), 105 F.T.R. 60 (T.D.), Denault J., the student was only landed in Canada with his family for a few weeks before returning to the United States to finish his degree. But Denault J. emphasized that this student was totally dependent on his parents for the money he needed for his studies and had returned to live with them whenever he had the opportunity to do so. Again he did not work abroad.
[16] The facts in Re Chan (1988), 20 F.T.R. 147 (T.D.), Martin J., are somewhat different from those of the case at bar. The applicant in Chan completed his university education in Canada prior to obtaining landed immigrant status and subsequently worked in Canada before moving to Hong Kong in order to obtain more edifying work experience. Unlike in the present appeal, Martin J. found that the applicant had centralized his mode of living in Canada and worked in Hong Kong only on a temporary basis when he was unable to obtain suitable employment in Canada.
CONCLUSION
[17] The Appellant is an exceptional student and a valued member of Canadian society. Although his present application for citizenship is premature for the reasons given, it is to be hoped that he will reapply when the time is right.
[18] The appeal will be dismissed.
(Sgd.) "Sandra J. Simpson"
Judge
Vancouver, B.C.
April 28, 1999
NAMES OF COUNSEL AND SOLICITORS OF RECORD
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
BETWEEN:
YU MING KUO
Appellant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
COURT NO.: T-2394-97
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 24, 1999
REASONS FOR JUDGMENT: SIMPSON, J.
DATED: April 28, 1999
APPEARANCES:
Mr. Yu Ming Kuo on his own behalf
no one appearing for Respondent
Mr. Peter K. Large for amicus curiae
SOLICITORS OF RECORD:
Mr. Morris Rosenberg for Respondent
Deputy Attorney General of Canada
Peter K. Large for amicus curiae
Toronto, Ontario