Date: 19990914
Docket: T-6-99
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Appellant
- and -
YI CHENG JENNIFER CHUANG
Respondent
REASONS FOR ORDER
REED, J.:
[1] This is an appeal by the Minister of a decision by a citizenship judge, which decision found that the respondent had been resident in Canada for three out of the four years preceding her application of citizenship and, therefore, that she had fulfilled the requirements of paragraph 5(1)(c) of the Citizenship Act.
[2] For much of the time in question, the respondent was physically absent from Canada. She came to Canada as a landed immigrant, with her parents and siblings, on November 20, 1994. She left two weeks later to return to the United States to continue her studies. The citizenship judge noted that the respondent had spent three years attending high school in the United States, that she had applied to three Canadian universities but had been rejected, and that she had returned to the United States to attend university in Missouri. She was in her fourth year of those studies when she was interviewed by the citizenship judge in November of 1998.
[3] It is well known that the jurisprudence in this Court is divided. While some judges of this Court say you can not reside in a place where you are not physically present, others take a different view. The decision in Re Papadogiorgakis, [1978] 2 F.C. 208 (T.D.), is an example of the latter.
[4] For many years a very liberal approach was adopted to the residency requirement of the Citizenship Act, as the decision in Re Papadogiorgakis was applied and, perhaps, stretched. In more recent times, a swing the other way has occurred; see, for example, Re Pourghasemi (1993), 19 Imm.L.R. (2d) 259 (F.C.T.D.), Re Chow (1997), 40 Imm.L.R. (2d) 308 (F.C.T.D.), and Re Chang (February 5, 1998) T-1183-97 (F.C.T.D.). As noted, some judges require physical presence within Canada for each of the 1095 days required by paragraph 5(1)(c); others do not. This lack of consistency in the jurisprudence must be very frustrating, both for citizenship judges and for counsel when advising their clients.
[5] The divergence in the jurisprudence arises, as do most differences in the interpretation of statutory provisions, because words have multiple meanings. The phrase "residence in Canada" is not necessarily the equivalent of physical presence. Indeed, physical presence alone is not enough. Also, Federal Court judges know that one can spend a great deal of time outside one's province of residence without ceasing to be a resident of that province, or ceasing to reside therein. The dictionary definition, a favourite source of guidance when interpreting words in statutes, indicates that residence means "to have one's usual dwelling place or abode ... to establish oneself; to settle." Perhaps Parliament did mean that physical presence was an absolute essential for each of the 1095 days required by paragraph 5(1)(c), but perhaps it did not.
[6] Normally differences of opinion about the correct interpretation of statutory provisions are settled either by Parliament amending the legislation to make its intention clear, or by a Court of Appeal decision. In the present case the unsettled nature of the jurisprudence has been known for a long time (the Re. Papadogiorgakis decision was decided in 1978), and there has been no clarification by Parliament. In addition, there is no appeal from Trial Division decisions to the Court of Appeal in citizenship cases, presumably because an unsuccessful citizenship applicant can always reapply. Thus, the divergence of views concerning what is required in order to fulfil the requirements of paragraph 5(1)(c) remains.
[7] Counsel for the respondent referred me to Mr. Justice Lutfy's decision in Lam v. Minister of Citizenship and Immigration (March 26, 1999) T-1310-98, particularly, for the proposition that a citizenship judge may adopt either the strict or the flexible interpretation of the word "residence" and not be in error, providing the relevant principles are properly applied to the facts of the case. Mr. Justice Lutfy found that the citizenship judge had not taken into account some of the relevant facts when rendering his decision. He therefore allowed the appeal, applied the flexible standard in favour of the applicant and granted citizenship.
[8] I turn then to a review of the decision under appeal. I have reached the conclusion that, in the absence of clarification by Parliament as to what it intends, I will adopt the test that most favours the individual applicant. The difficulty this respondent has, however, even using that test, is that the facts of her situation do not support a conclusion that she ever established herself in Canada. She came into the country as a landed immigrant with her family when the family immigrated. She returned, almost immediately, to school in the United States. She came to Canada on most school holidays but also spent a considerable amount of time in Taiwan. While counsel argues that there is no country with which she has a closer connection than Canada, that assertion is not demonstrated by the facts.
[9] There are a number of decisions that deal with situations that are almost identical to those of this respondent. All of these have held that the applications for citizenship by students in the respondent's position are simply premature; see: Minister of Citizenship and Immigration v. Ho (T-1846-98, April 30, 1999); Minister of Citizenship and Immigration v. Liu (T-997-98, January 12, 1999); Minister of Citizenship and Immigration v. Italia (T-1927-98, May 27, 1999); Minister of Citizenship and Immigration v. Lam (T-1524-98, April 28, 1999); Minister of Citizenship and Immigration v. Wong (T-24-99, August 25, 1999).
[10] I must, on the facts of the respondent's case, allow the appeal and set aside the decision of the citizenship judge. The respondent expressed an intention to obtain employment in her chosen profession, in Canada, after her graduation from university. Thus, she will be able to reapply for citizenship at a time when she should have no difficulty demonstrating that she has met the paragraph 5(1)(c) requirements.
Judge
OTTAWA, ONTARIO
September 14, 1999