Federal Court Decisions

     T-2577-95

     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

                         Kim Ching Kenneth Fung,

     Appellant.

     REASONS FOR JUDGMENT

TEITELBAUM, J.

     This is an appeal by Kim Ching Kenneth Fung from a decision of a Citizenship Judge dated August 24, 1995, in which the Citizenship Judge states:

I regret to inform you that your application for Canadian citizenship is not approved.

On August 3, 1995, you appeared before me for a hearing of your application for Canadian citizenship.

I found that you met all of the requirements for citizenship set out in the Citizenship Act, except for the requirement of residence. Under sub-section 5(1)(c) of the Citizenship Act, an applicant is required to have accumulated at least three years of residence in Canada within the four years immediately preceding his or her application.

According to the evidence in your file and presented to me at your hearing, your absences from Canada total more than one year (423 days) in the four years preceding your application. In these circumstances, you had to satisfy me, in order to meet the residence requirement, that your absences from Canada, or at least a part of these, could be counted as a period of residence in Canada.

     In addition to the above absences, from June 23, 1994, when the Appellant applied for citizenship, he left Canada, he states, from December 30, 1994, to January 29, 1995 (a period of 29 days), from April 12, 1996, to June 10, 1996 (a period of 60 days) and from November 27, 1996, to February 2, 1997 (a period of 84 days).

     I am in agreement with the decision of the Citizenship Judge.

     The Appellant states that he left Canada on four or five of the thirteen times he left Canada for medical treatment. He states that he went to Mainland China for treatment as he was told to do so by his Canadian doctors as they were unable to cure his disease, a disease known as ankylosing spondylitis.

     It was obviously the choice of the Appellant to leave Canada for treatment. I have no evidence that it was necessary for the Appellant to leave Canada for his treatment.

     In a letter dated June 20, 1994, Dr. Barry E. Koehler states:

I have seen this man at intervals since June 25th, 1992.

He has a type of inflammatory arthritis which predominantly involves the bones of the neck and back, knows as ankylosing spondylitis.

The most important component of treatment of this chronic, incurable condition is an on-going exercise programme to try to retain maximum mobility of the neck and back as well as to try to prevent any deformity of those areas.

He has been treated with a number of different anti-inflammatory agents.

None of these has been particularly helpful.

He maintains a home exercise programme and has shown some improvement in his neck movement.

This man has moderately advanced ankylosing spondylitis which has not

deteriorated significantly in the two years that I have followed him.

     Nothing in this letter would indicate that the Appellant had to leave Canada for specialized treatment. The same can be said of the letter of June 16, 1994 from Dr. Simon Shiu:

June 16, 1994

To whom it may concern

Re Kenneth Fung

DOB Feb 28, 1958

is suffering from ankylosing spondylitis, and was referred to Dr. Koehler, and is now on physio and anti-inflammatory drugs, he became my patient since Oct 25, 1991.

     In that the hearing before me is a trial de novo, the Appellant should have brought evidence of the urgency of going to China for treatment.

     Furthermore, I was not satisfied with the Appellant's reasons for wanting Canadian citizenship. When questioned as to why he wanted Canadian citizenship, he stated he wanted same because his family are Canadian citizens, because he wanted "the power of a Canadian citizen", which I interpret to mean the security offered with Canadian citizenship, a passport because his passport expires in 1997 and he would need such a passport "to go for a trip".

     I am not convinced that the Appellant knows what it means to be a Canadian citizen. I am convinced that the Appellant has not made an effort to learn what it is to be a Canadian. I am not convinced he knows that a citizen of Canada has obligations as well as rights.

     A case very similar to this present factual situation is found In The Matter of Nga Leony Chin (1995) 28 Imm. L.R. 211. In the Chin case, as in the case before me, the appellant owns he residence, he pays Canadian income tax, maintains a Canadian bank account, pays medical premiums and owns a car.

     In the case at bar the Appellant only works part-time, files income tax returns and speaks very little English.

     In the Chin case, Mr. Chin was approximately 485 days short of the 1095 days necessary to satisfy the residency requirements. According to the Citizenship Judge in the case at bar, the Appellant is short 423 days of the residency requirements.

     In the Chin case, as in the case before me, the one issue was illness and treatment which included traditional Chinese treatment with Chinese herbs.

     I believe I can do no better than to quote Mr. Justice Pinard when he states:

. . . Although the jurisprudence which in now firmly entrenched does not require physical presence in Canada for the entire 1,095 days, in my view, too long, albeit temporary, an absence from Canada during that minimum period of time, as in the present case, is contrary to the purpose of the residence requirements of the Act. Indeed, the Act already allows a person who has been lawfully admitted to Canada for permanent residence not to reside in Canada during one of the four years immediately preceding the date of that person's application for Canadian citizenship.

     I find that the Appellant does not meet the residence requirements of the Citizenship Act. Therefore, the present appeal is dismissed.

                             (Sgd.) "Max M. Teitelbaum"

                                     Judge

February 28, 1997

Vancouver, British Columbia