Date: 20030526
Docket: T-878-02
Citation: 2003 FCT 651
Ottawa, Ontario, this 26th day of May, 2003
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
CHUN-HUI YU
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Yu is a citizen of Taiwan. His parents and sister moved to Canada in 1997 while he was attending school in the United States. Throughout the remaining four years, he spent most of his time outside of Canada attending university in Boston, visiting a sick grandfather in Taiwan and seeing his girlfriend in Japan. Occasionally, he visited Canada. In July 2001, he applied for Canadian citizenship. His application was approved. The Minister appealed it.
I. Issue
[2] There is only one issue in this case - whether Mr. Yu satisfied the residence requirement set out in s. 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29. It requires an applicant to have accumulated three years of residence in Canada during the previous four years. The term "residence" is undefined and has been interpreted in various ways in judgments of this Court.
[3] As I have explained in the case of Canada (Minister of Citizenship and Immigration) v. Nandre, 2003 FCT 650, released today, where an applicant has failed to show that he or she was actually present in Canada for three years, the Citizenship Judge must consider whether the applicant has nonetheless shown that a strong connection has been made with Canada, to the point that periods of temporary absence can be counted towards the three-year residence requirement. This approach, which I have referred to as the "qualitative test", derives from jurisprudence of this Court: In re Citizenship Act and in re Antonios E. Papadogiorgakis, [1978] 2 F.C. 208 (T.D.); Koo (Re), [1993] 1 F.C. 286 (T.D.).
[4] In Mr. Yu's case, his attachment to Canada seems very tenuous. In total, over the course of the four years preceding his application, he spent a little more than three months in Canada, divided up into a series of short visits. Indeed, in his residence form he characterized his time in Canada as "visits" to his family or "vacations" rather than time spent "at home". Still, the Citizenship Judge concluded that the Act's residence requirement had been satisfied. He gave no reasons.
[5] Arguably, it is possible to maintain a strong connection with one's country of residence vicariously through one's family. But to do so, in my view, would require that the connection be firmly established to begin with.
[6] I see no evidence of any such strong connection in Mr. Yu's case. Only two of his visits to Canada were longer than a week, and these did not take place until the fall of 2000 (48 days) and the summer of 2001 (29 days). It is possible that some kind of meaningful attachment to Canada was achieved on those occasions but they occurred too late in the relevant time period to support a claim of three years' residence.
[7] Having reviewed the record, I see no evidence that Mr. Yu established his residence in Canada and, accordingly, I can find no basis on which to credit Mr. Yu with the time he spent outside of Canada toward the three-year residence requirement under the Act. Therefore, I must allow this appeal.
JUDGMENT
IT IS HEREBY ADJUDGED THAT:
1. The appeal is allowed.
"James W. O'Reilly"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS OF RECORD
DOCKET: T-878-02
STYLE OF CAUSE: MINISTER OF CITIZENSHIP AND IMMIGRATION
v. CHUN-HUI YU
PLACE OF HEARING: TORONTO
DATE OF HEARING: APRIL 8, 2003
REASONS FOR JUDGMENT
AND JUDGMENT BY: THE HONOURABLE MR. JUSTICE O'REILLY
DATED: MAY 26, 2003
APPEARANCES:
Kevin Lunney FOR THE APPLICANT
Richard J. Worsfold FOR THE RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada FOR THE APPLICANT
Basman Smith LLP
Barristers & Solicitors
Toronto, ON FOR THE RESPONDENT