Date: 19981130
Docket: T-2044-97
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
PAU CHI HSU
Appellant
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an appeal from the decision of the Citizenship Judge dated July 25, 1997 wherein the appellant"s application for citizenship was not approved on the ground that he did not meet the requirement of residence, as set out in paragraph 5(1)(c) of the Citizenship Act .
[2] The appellant acquired the status of permanent residence on August 21, 1993, and he applied for Canadian citizenship on October 2, 1996.
[3] The appellant testified at the hearing to precise some elements:
[4] The appellant came to Ridley College in St. Catherines and graduated in 1993, just prior to landing.
[5] The appellant applied to Western University in Ontario but was not admitted, he was accepted by the University of Pensylvannia, U.S.A.
[6] He studied at the Warden School of Finance and got an MBA in four years instead of five years. He just graduated in May of 1997.
[7] He has applied for several jobs and received no answers in Canada.
[8] He went back to Hong Kong to visit his parents in December 1992 for two weeks, in March 1993 for another two weeks and went back to Hong Kong for the summer of 1993.
[9] His parents and his brother moved to Canada in August 1993 in a house they bought in April 1993.
[10] Just a few days after arriving in Canada after his visit to Hong Kong, he went to Pensylvannia to start his MBA.
[11] He came back to Toronto to see his parents for the Christmas Holidays in December 1993 and went back to the United States to complete his studies. He also spent the summer vacations in Hong Kong and Republic of China, for summer jobs.
[12] After he finished his MBA in 1997, he tried to get a job in Canada, but finally, he got a training program with J.P. Morgan Financial Institution in the United States and is now working with Moody"s Investors Service in New York City.
[13] He mentioned to the Court that he has the intention to come back to Canada to work and establish definitively and that the work he is doing with Moody"s Investors Service is temporary, it is a training program that will help him to find a job in Canada in a new kind of financial transactions involving loans secured by real-estate.
[14] From his own testimony, he mentioned that this new financial product is not developed yet in Canada, but it will be developed in the years to come.
[15] The Amicus Curiae raised the point that we should wonder if the appellant has centralized his mode of living in Canada.
[16] If you look at the file, the application for Canadian citizenship indicates an absence from Canada of 1,082 days and after some corrections given his presence to St. Catherines for highschool studies in 1992, the absence from Canada is 874 days. That means a physical presence in Canada of 231 days over the four years preceding the application for citizenship; the appellant is short of 874 days.
[17] The appellant claims that his absence from Canada was on a temporary basis for studying purposes; he also claims that although he was not in Canada physically, he maintained and centralized his mode of living in Canada during the period in question.
[18] Apparently, his parents have bought a two bedroom condominium in the Toronto area and the second bedroom is for the two brothers and that he has left some personal belongings in this room during his absence from Canada.
[19] If we refer to the Act, it requires that the applicant first establish a permanent residence in Canada and secondly, accumulate at least three years of residence in the four years preceding his application for citizenship.
[20] Obviously, the jurisprudence have brought a more liberal approach about the requirements of a 1,095 days of presence in Canada during the four years preceding the application; but these numbers were not there for nothing.
[21] The Act requires that the appellant first establish a permanent residence in Canada, and secondly, accumulate a least three years of residence. I do not believe that permanent residence can be establish in this case. Besides, even if the appellant has strongly affirmed, before the Court, that he has the intention to return to Canada, there is little evidence to support the fact that the appellant had the intention to return to Canada. Since the appellant claims that although he was not in Canada physically, he maintained and centralized his mode of living in Canada during the period in question. I will simply enumerated questions that can be asked which assist such a determination; this test has been elaborated in Re Koo (1992), 19 Imm. L.R. (2d) 1, 59 F.R.R. 27, [1993] 1 F.C. 286 (T.D.):
| 1. Was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship? |
| 2. Where are the applicant"s immediate family and dependants (and extended family) resident? |
| 3. Does the pattern of physical presence in Canada indicate a returning home or merely visiting the country? |
| 4. What is the extent of the physical absences? If an applicant is only a few days short of the 1,095 day total it is easier to find deemed residence than if those absences are extensive. |
| 5. Is the physical absence caused by a clearly temporary situation such as employment as a missionary abroad, following a course of study abroad as a student, accepting temporary employment abroad, accompanying a spouse who has accepted temporary employment abroad? |
| 6. What is the quality of the connection with Canada? Is it more substantial than that which exists with any other country? |
[22] Responding to these questions give the real answer to the question whether the applicant has maintained and centralized his mode of living in Canada.
[23] Even though the appellant"s case is sympathetic, and his father and mother and brother have established in Canada, the evidence that was presented to the Citizenship Judge and to this Court has not demonstrated that the appellant has maintained and centralized his mode of living in Canada during the period in question.
[24] If the appellant finally moves back to Canada and establish himself in Canada and work here and keeps connection with his family, he will be in a better position to apply for citizenship, but with some regrets, I cannot conclude that he has met the residency requirement.
[25] For these reasons, the appeal is dismissed.
Pierre Blais
Judge
Ottawa, Ontario
November 30, 1998