Date: 199800611
Docket: T-2031-97
BETWEEN:
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
CINDY SYNN CHEE TAM,
Appellant
REASONS FOR JUDGMENT
(Delivered orally from the Bench
on May 1, 1998, as edited)
MCKEOWN J.
[1] The appellant appeals a decision of the Citizenship Judge dated August 11, 1997 denying her application for a grant of citizenship under para. 5(1)(c) of the Citizenship Act (the "Act"). The Citizenship Judge stated that the appellant failed to maintain sufficient ties with Canada during her absences to have those absences count as periods of residence under the Act.
[2] The appellant is a citizen of Hong Kong. She left there in 1979 when she was 14 years old. She studied in the United Kingdom from 1979 to 1988 when she received her law degree from Cambridge. She lived and studied in Vancouver from 1988 to 1990 and earned an MBA from the University of British Columbia.
[3] While she was here, she convinced her parents to come to Canada. She returned to England to commence her clerkship with a law firm. She was landed in Canada on June 14, 1992 and, after a few days, returned to the United Kingdom to complete her trainee solicitor's programme.
[4] She returned to Canada in December 1992 and married a Canadian citizen. In late 1992, her husband accepted a position with Coopers and Lybrand as a tax accountant in Hong Kong. After a honeymoon in the United States and a short trip to England to finalize matters, she went to Hong Kong in March 1993 to live with her husband. She is a member of the Law Society of England and Wales. She now works as a solicitor in corporate and commercial law for Baker MacKenzie, an international law firm. Her husband had intended returning to Canada after two or three years, but he is still there, and so is the appellant.
[5] Upon the date of her application for citizenship on March 19, 1996, she was absent from Canada approximately 1322 days, leaving her a shortage of 1043 days of the required 1095 days. During her absences, she went to the United Kingdom and to the United States but, most of the time, she was in Hong Kong.
[6] She has a bank account in Canada, a British Columbia driver's license, and a membership in an exclusive Vancouver recreational club. She and her husband own a home in Vancouver, which has continually been rented since they bought it in 1989. The appellant has some belongings at her parents' house and at her husband's parents' house in Vancouver.
[7] Her parents have become Canadian citizens at her urging. The immediate families of both her and her husband are now Canadian citizens, except for one brother who is a United Kingdom citizen living in Malaysia.
[8] The appellant and her husband live in an apartment in Hong Kong and, before moving to the apartment in 1996, they lived in her husband's sister's house in Hong Kong.
[9] Unfortunately, the appellant's link with Canada is tenuous at best. She has not centralized her mode of existence in Canada. Joyal, J. stated in Secretary of State v. Nakhjavani (1987), 13 F.T.R. 107 at 111-112:
| I would not agree that the simple fact of a place of abode in Canada and an intention to return to it are sufficient to fit the respondents within the parameters of paragraph 5(1)(b) of the Act even if that provision were construed in a most flexible manner. I fail to see where in the period of 1982-1986, the respondents became in any way interwoven into the Canadian fabric or otherwise developed the kind of relationship with Canadians or their institutions within the meaning contemplated by Parliament in its statute. [...] The jurisprudence is clear that before the length or tenure of residency can be subjected to the residency test under the Act, an applicant must first of all establish that he has taken up residence in Canada. A stay of two weeks in September 1982 and of one week in August 1983, which appears on the record, might be regarded as a technical fulfillment of that particular rule but, in my view, it falls short of the substantial requirements which the statute imposes. |
[10] In my view, the situation is very similar. While the appellant and her husband intended to return to Canada in two or three years after leaving in 1993, the husband has since agreed to stay on with Coopers & Lybrand until at least next year when they plan to return to Canada. However, in the absence of any centralized mode of existence in Canada, now or in the past, I cannot state that the appellant meets the requirements of para. 5(1)(c).
[11] However, the Citizenship Judge in this case, after turning down the appellant's application, omitted to consider ss. 5(4) as required under s.15 of the Act. While I am unaware of any special or unusual hardship as referred to in ss. 5(4), it is my view that the appellant is entitled to have Citizenship Judge Glass or another Citizenship Judge, if Judge Glass is unavailable, consider the circumstances under ss. 5(4) and consider whether or not to recommend an exercise of discretion under ss. 5(4).
[12] The appeal is therefore allowed only to the extent that the matter is returned to Citizenship Judge Pam F. Glass to review the appellant's circumstances under ss. 5(4) of the Act, and to decide whether or not to recommend an exercise of discretion. If Citizenship Judge Glass is unavailable, then the circumstances under ss. 5(4) may be reviewed by another Citizenship Judge.
William P. McKeown
J U D G E
O T T A W A, Ontario
June 11, 1998.