Federal Court Decisions

     T-1632-96

     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

                             Yen-Fen Hsu,

     Appellant.

     REASONS FOR JUDGMENT

TEITELBAUM, J.

     This is an appeal from a decision of a Citizenship Judge dated March 11, 1996, wherein the Citizenship Judge refused to grant the Appellant Canadian citizenship as a result of the Appellant having failed to establish residence pursuant to subsection 5(1)(c) of the Citizenship Act.

     The Citizenship Judge, in her March 11, 1996, decision states:

Under subsection 5(1)(c) of the 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 (601 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 could be counted as a period of residence in Canada.

. . . . .

In this regard, I note that you arrived in Canada on January 9, 1992 as a landed immigrant. Less than a week later you left Canada to return to University in Austin, Texas, USA, where you completed your Bachelor's degree. You returned to Canada in July of 1992 for a few weeks. On August 15, 1992 you left Canada for the University of Southern California in Los Angeles, California. From the date of your landing in Canada until you returned to Canada for a day to apply for your Canadian citizenship on June 29, 1995. You have been out of the country for 601 days, leaving you short 429 dyas [sic] of the 1095 days required by the Citizenship Act. You are still living outside Canada and returned for a few days for your hearing with me on March 11, 1996. These facts lead me to conclude that you presence in Canada during the past four years were only visits. This is [not] sufficient to consider that you established your residence or that you centralized your mode of living in Canada and therefore your absences from Canada cannot be counted as periods of residence in Canada.

     The hearing before me is a trial de novo. The Appellant is thus permitted to make additional evidence to show that she is entitled to be given Canadian citizenship.

     Unfortunately for the Appellant, I cannot recommend to the Minister to grant the Appellant Canadian citizenship.

     At the time of the Appellant's "landing" in Canada, she was a student in the United States of America. She came to Canada as a landed immigrant on January 9, 1992. She remained in Canada for a period of one week after first "landing". She returned to school. She and a friend rented an apartment near her university.

     Although her semester ended in May 1992, she remained in the USA until July 4, 1992. The reason she states she did not return to Canada at the end of the semester was "I was applying to graduate schools and I waited to hear of any acceptance.".

     In any event, the Appellant came back to Canada on July 4, 1992, and remained in Canada for approximately one and a half months, to August 15, 1992. She then returned to the USA to study at the University of Southern California for a Master's degree. While in Canada she remained at her father's home. She did not look for work or participate in any other activity.

     The Appellant returned to Canada on July 11, 1993, when her semester ended. She remained in Canada for two months, returning to the USA on August 18, 1993. On December 21, 1993, she returned to Canada for a period of nine months without completing her Master's degree.

     During the nine-month period in Canada, she got a part-time job at Canada Post delivering ad mail on weekends.

     The Appellant informs me that she intended to return to school to study computer science and applied to the University of British Columbia to be accepted to the Computer Science programme. She did not apply to any other Canadian University "because I wanted to stay close to my family". The Appellant did apply to other schools in the USA. Having been rejected by the University of British Columbia, she attended classes at Stanford University in California.

     She left Canada on September 15, 1994, and then returned to Canada one year later, on September 3, 1995. The Appellant returned to the USA and very seldom returned to Canada. She states her programme "is pretty intense" and that she does not have the funds to visit with her family.

     I asked the Appellant why it is that she wants to be a Canadian citizen. Her reply was because her family lives in Canada and she wants to be with them.

     I do not accept this answer as a reason for wanting Canadian citizenship. Judging by the number of days she visits Canada, I cannot arrive at the conclusion that she requires Canadian citizenship for this purpose. The Appellant is a landed immigrant and can visit her family whenever she wishes.

     The Appellant states that Canada is a better country than the USA and wants to be part of the "Canadian society". There is nothing to prevent the Appellant from becoming part of the "Canadian society" if she would decide to live in Canada. She does not require Canadian citizenship to become part of the "Canadian society". As I stated, all she need do is live in Canada and become acquainted with "Canadian society".

     When I continued to ask why the Appellant wanted to be a Canadian citizen, she replied "I may not have a clear reason why I want to be a Canadian citizen, it is just like my Master's degree.".

     Unfortunately, I cannot accept, from the above, that the Appellant has fulfilled the requirement of the Citizenship Act. Subsection 5(1)(c) of the Act is there for a reason. I need do no more than quote from the case of In Re Pourghasemi (1993), 19 Imm. L.R. (2d) 259 at 260 in which Mr. Justice Muldoon states:

That provision exacts that the applicant must have "within the four years immediately preceding the date of his application, accumulated at least three years of residence in Canada. . ." Parliament introduces an element of emphasis into the statutory text by enacting ". . . at least three years of residence in Canada . . ." Those emphasized words are unnecessary, except for emphasis. The appellant accumulated less than one year, before the date of his application for citizenship. In drawing a purposive interpretation of the statutory language it should be asked: Why did Parliament prescribe at least 3 years of Canadian residence in the 4 years immediately before applying for citizenship?

It is clear that the purpose of para. 5(1)(c) is to insure that everyone who is granted precious Canadian citizenship has become, or at least has been compulsorily presented with the everyday opportunity to become, "Canadianized." This happens by "rubbing elbows" with Canadians in shopping malls, corner stores, libraries, concert halls, auto repair shops, pubs, cabarets, elevators, churches, snyagogues [sic], mosques and temples - in a word wherever one can meet and converse with Canadians - during the prescribed three years. One can observe Canadian society for all its virtues, decadence, values, dangers and freedoms, just as it is. That is little enough time in which to become Canadianized. If a citizenship candidate misses that qualifying experience, then Canadian citizenship can be conferred, in effect, on a person who is still a foreigner in experience, social adaptation, and often in thought and outlook. If the criterion be applied to some citizenship candidates, it ought to apply to all. So, indeed, it was applied by Madam Justice Reed in Re Koo, T-20-92, on December 3, 1992 [reported 19 Imm. L.R. (2d) 1], in different factual circumstances, of course.

     Again, I say, unfortunately, the Appellant, who may one day become an excellent citizen, has not become "Canadianized" in the everyday life of a Canadian.

     The appeal is denied.

                             (Sgd.) "Max M. Teitelbaum"

                                     Judge

March 3, 1997

Vancouver, British Columbia