Date: 20030612
Docket: T-1819-01
Citation: 2003 FCT 738
CALGARY, Alberta, Thursday, the 12th day of June, 2003.
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
KA YEE CHONG
Respondent
REASONS FOR ORDER AND ORDER
KELEN J.:
[1] This is an appeal of the decision of a citizenship judge dated August 28, 2001, granting the respondent Canadian citizenship. The sole issue in this appeal is whether the respondent satisfies the residency requirements of paragraph 5(1)(c) of the Citizenship Act, R.S.C., 1985, c. C-29.
[2] The respondent was born in Hong Kong in 1975 and is a citizen of Portugal. She arrived in Canada with her parents and two sisters on August 22, 1996 and was admitted as a permanent resident. She left Canada on September 2, 1996 to continue her studies in Spain at the University of Granada, where she had completed her first year in Business Administration during the previous academic term. The applicant returned to Canada on May 18, 2000 after completing her studies in Spain. During the time she spent in Spain, she made several trips to Canada where her parents and siblings continued to reside. She made an application for citizenship on April 27, 2001. As of the date of application, she had been present in Canada for 437 days and absent for 1023 days in the preceding four years. She had a shortfall of 658 days of the required 1095 days of residence prescribed by paragraph 5(1)(c).
[3] In Re Papadogiorgakis, [1978] 2 F.C. 208 (F.C.T.D.) Thurlow J. (as he was then) held that citizenship could be granted to a student who had almost no physical presence in Canada during the assessment period. The student in question had resided in Canada for four years prior to the assessment period and had established a centralized mode of living prior to departing for study abroad. During his absence he also maintained a Canadian residence and returned regularly to Canada.
[4] However, I am satisfied that Re Papadogiorgakis is not applicable to the case at bar. As Simpson J. stated in Canada (Minister of Citizenship and Immigration) v. Rahman, [1999] F.C.J. No. 655 (T.D.) (QL), Re Papadogiorgakis is not authority for the proposition that a student can come to Canada for a short time, not establish residence, spend long periods of study abroad and expect to meet the residence requirement for Canadian citizenship. That is precisely the case here. The respondent was in Canada for less than a month before she left to resume her studies in Spain. It cannot be said that she centralized her mode of living in Canada prior to departing for study abroad. As the citizenship judge erred by determining that the respondent met the residency requirement in paragraph 5(1)(c), the decision must be set aside.
[5] In closing I wish to point out that this decision is merely a temporary bar to obtaining citizenship. If the respondent has centralized her mode of living since returning to Canada in 2000, she will be eligible for citizenship three years after centralizing her existence in Canada..
ORDER
THIS COURT ORDERS that this appeal be allowed.
"Michael A. Kelen"
J. F. C. C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1819-01
STYLE OF CAUSE: MINISTER OF CITIZENSHIP
AND IMMIGRATION v.
KA YEE CHONG
PLACE OF HEARING: CALGARY, Alberta
DATE OF HEARING: June 12, 2003
REASONS FOR ORDER AND ORDER : Kelen, J.
DATED: June 12, 2003
APPEARANCES:
Mr. Rick Garvin FOR APPLICANT
Ms. Ka Yee Chong FOR RESPONDENT
SOLICITORS OF RECORD:
Morris A. Rosenberg
Deputy Attorney General
of Canada FOR APPLICANT
Ms. Ka Yee Chong
Calgary, Alberta FOR RESPONDENT
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20030612
Docket: T-1819-01
BETWEEN:
MINISTER OF CITIZENSHIP AND
IMMIGRATION
Applicant
and
KA YEE CHONG
Respondent
REASONS FOR ORDER
AND ORDER