Date: 19990401
Docket: T-1881-98
BETWEEN:
JING YANG JUSTIN WANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED J.:
[1] The applicant appeals a decision of a citizenship judge that found he had not met the residency requirements of subsection 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29.
[2] The applicant came to Canada, first, on September 3, 1989, as a student. He obtained a B.Sc. degree from York University. He obtained a work authorization permit in 1994 and commenced working for Dynamic Mutual Funds. He was granted landing as a permanent resident on September 12, 1995, and applied for citizenship two years later on September 12, 1997. The period of time that he was in Canada before he became a landed immigrant can be counted towards fulfilment of the residency requirements. When the relevant computation is done, he is approximately 70 days short of the 1095 days required by subsection 5(1)(c).
[3] I should also note that the applicant's father financed his sojourn in Canada; condominium units were purchased in February 1997. The applicant's wife came to Canada in 1995, and their child was born here on April 28, 1995. His wife was admitted as a landed immigrant on December 5, 1995, his father on April 7, 1997. His mother was also approved for landing but she did not come. She became ill with cancer in 1997.
[4] When the citizenship judge interviewed the applicant on June 19, 1998, for the purposes of his September 12, 1997, application for citizenship, she ascertained that his wife had returned to Hong Kong, his father to China, his mother remained in China, and the applicant's Canadian born child was there as well. The applicant was residing in China, having taken an indefinite leave of absence, on July 12, 1997, from Dynamic Mutual Funds, the Canadian company for which he had previously worked. At the time of his citizenship interview in Toronto, the applicant explained that he had been residing in China since September 1997 because of his mother's illness, he had no present plans to return to Canada, and he was scheduled to return to China two days after the interview. The citizenship judge took these factors into consideration when assessing whether or not the applicant's absences from Canada between September 12, 1993, and September 12, 1997, should be counted as residence within the country.
[5] In Lam v. Minister of Citizenship and Immigration (T-1310-98, March 26, 1999), Mr. Justice Lutfy set out a comprehensive analysis of the factors relevant to the standard of review applicable in these appeals now that they no longer proceed as hearings de novo. I share his conclusion that correctness is the appropriate test.
[6] Counsel for the applicant argues that there are three errors in the citizenship judge's decision: (1) she concluded that the applicant was absent from Canada after July 7, 1997, when he was not; (2) she ignored the very small number of days he was short of the required 1095; (3) she took into account factors that were not relevant to the application, that is, events that occurred after his September 12, 1997, application for citizenship.
[7] I am not persuaded that the citizenship judge concluded that the applicant was absent from Canada from July 7, 1997 forward. Her notes refer to this as the date from which his indefinite leave of absence commenced, not his absence from Canada, and the former is a correct statement of the evidence. The record prepared for the purpose of calculating his absences from Canada shows him to have been resident in Canada between July 7, 1997 and September 12, 1997, and I could not conclude that the citizenship judge ignored that record.
[8] I am not persuaded that the citizenship judge overlooked or ignored the fact that the applicant was only a few days short of the required 1095. The actual number of days of absence, however, is smaller than she recorded. As a result of starting the computation at too early a date, she stated that the applicant was 127 days short. The actual calculation should have been 70 days.
[9] The crucial factor in this case is whether the citizenship judge erred in law in taking into account events that occurred after September 12, 1997. In determining whether absences should be treated as residence within this country, the essential consideration is the quality of the person's connection with Canada. Mr. Justice Thurlow's decision in Re: Papadogiorgakis, [1978] 2 F.C. 208 is the basis of the relevant jurisprudence. The question to be asked has been described as being whether "an applicant for citizenship ... has clearly and definitively established a home in Canada with the transparent intention of maintaining permanent roots in this country..." (see Re Ho, T-2871-96, December 15, 1997). In general, presence within a country as a student does not have that quality. The applicant was present in Canada, however, for a period of time after his graduation.
[10] If events subsequent to a person's application for citizenship cast light on the quality of the person's connection with Canada at the earlier time, then, those events are relevant to the citizenship judge's evaluation, and the citizenship judge cannot be faulted for taking them into account. In this case, the events subsequent to September 12, 1997, clearly demonstrate that even if the applicant had at one time intended to permanently establish himself in Canada, this intention had been abandoned by the date of his application for citizenship.
[11] Accordingly, I can find no error in the citizenship judge's decision and the appeal must be dismissed.
"B. Reed"
Judge
TORONTO, ONTARIO
April 1, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-1881-98
| STYLE OF CAUSE: JING YANG JUSTIN WANG |
- and -
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
DATE OF HEARING: WEDNESDAY, MARCH 24, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: REED J.
DATED: THURSDAY, APRIL 1, 1999
APPEARANCES: Ms. Mary Lam
For the Applicant
Mr. Stephen Gold
For the Respondent
SOLICITORS OF RECORD: Cecil L. Rotenberg
Barristers & Solicitors
United Centre
808-255 Duncan Mill Rd.
North York, Ontario
M3B 3H9
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990401
Docket: T-1881-98
Between:
| JING YANG JUSTIN WANG |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER