Date: 20000216
Docket: T-1847-98
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Appellant,
- and -
WAI YUEN CHENG,
Respondent.
Heard at Vancouver, British Columbia on January 31, 2000.
Judgment delivered at Ottawa, Ontario on February 16, 2000.
REASONS FOR JUDGMENT BY: MULDOON J.
Date: 20000216
Docket: T-1847-98
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Appellant,
- and -
WAI YUEN CHENG,
Respondent.
REASONS FOR JUDGMENT
MULDOON J.
[1] The Minister appeals under subsection 14(5) of the Citizenship Act, and section 21 of the Federal Court Act, from the decision of a citizenship judge, dated August 6, 1998, in which she, the judge, approved Wai Yuen Cheng's application for a grant of Canadian citizenship under subsection 5(1) of the Citizenship Act.
[2] The stated grounds for the appeal are: that the citizenship judge failed to have regard to the residence requirement of paragraph 5(1)(c) of the Citizenship Act, which require that an applicant for citizenship accumulate at least three years of residence in Canada within the four years immediately preceding the date of his or her application for citizenship.
[3] The relevant statutory text of the Act runs as follows:
| 5.(1) The Minister shall grant citizenship to any person who |
| (a) makes application for citizenship; |
| (b) is eighteen years of age or over; |
| (c) has been lawfully admitted to Canada for permanent residence, has not ceased since such admission to be a permanent resident pursuant to section 24 of the Immigration Act, and has, within the four years immediately preceding the date of his application, accumulated at least three years of residence in Canada calculated in the following manner: |
| (i) for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and |
| (ii) for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence; |
| (1.1) Any day during which an applicant for citizenship resided with the applicant's spouse who at the time was a Canadian citizen and was employed outside of Canada in or with the Canadian armed forces or the public service of Canada or of a province, otherwise than as a locally engaged person, shall be treated as equivalent to one day of residence in Canada for the purposes of paragraph (1)(c) and subsection 11(1). |
[4] What is to be noted in the text is that the applicant must have been lawfully admitted to Canada for permanent residence; such applicant must, within the 4 years immediately prior to his (or her) application date, have at least three years of residence in Canada; the residence is measured in days and one-half days in Canada. "At least" three years does not mean less time; it means not fewer than 3 years. Residence in Canada means that; it does not imply absence from Canada, but rather presence in Canada - it refers to presence for whole days and half days. It does not, of course, forbid absence for relatively short-term vacations abroad. It requires a commitment to settling down in - that is residing in Canada, during the prescribed times. It is much, much more than adopting Canada as a mere "flag of convenience" to quote Mr. Justice Joyal, of this Court, in Secretary of State v. Nakhjavani [1988] 1 F.C. 84 at 92, (and Mr. Justice Denault in Re Ouayad at pp. 2 & 3, T-1473-94.
[5] In adjudicating the respondent's application for a grant of Canadian citizenship, the citizenship judge wrote this:
| The applicant is a 26 year old architect graduate student, who arrived in Canada in 1994. He attended school in Hong Kong for 11 years, in the U.S. for 8 years and in Canada for 1 year. According to the calculations of the Court, he is 752 days short of the required residency. I have interviewed the applicant and reviewed the file. As the applicant maintained his residence in Canada and returned here at summer and winter semester breaks, I am satisfied he has established his residence in Canada. I recommend approval. |
[6] In truth the respondent's answer to the 5th question on his application for Canadian citizenship, (appellant's record, p. 012) discloses 854 days "spent away from Canada", in the United States, from 94/8/18 until 97/7/1, not merely 752 days as above quoted. In all, three years of residence in Canada exacts residing for 1,095 whole days - being present - in Canada. If an applicant cannot bear to pass three full years in this country whose citizenship he or she seeks, there is an extra year for relief, for the legislation exacts only three years at least of the previous four years before the date of the application for Canadian citizenship.
[7] One wonders what authority the citizenship judge thought she exercised to state (erroneously) "he is 752 days short of the required residence" and then to make a finding: "I am satisfied he has established his residence in Canada." That is an egregious error of fact and law.
[8] The respondent submitted a memorandum of fact which leads one to conclude that he is a good person who comes from a good, well-educated tax-paying family, "richly rooted in Canada and its culture and (he) speaks fluent English"; one accepts this to be all true, but it does not and cannot make up for the lost time of residence which Parliament has prescribed for one who seeks a grant of Canadian citizenship. The Court made these thoughts known to the respondent during the hearing of the Minister's appeal in Vancouver. In these circumstances, Parliament is the authoritative law-maker, not the citizenship judge, not the Minister, and not this Court.
[9] At this juncture it is worth noting that the expression, so often adopted in this Court's decisions: "the applicant has centralized his (or her) mode of living in Canada", does not describe any statutory qualification for a grant of citizenship. It probably stems from strongly stated jurisprudence, which has no origin in legislation. The repeated continuation of such a misleading putative qualification ought not to be encouraged. Parliament meant what it enacted, and it enacted what it meant to enact.
[10] The respondent did not accumulate at least three years of residence in Canada after April 7, 1993, four years immediately preceding the date on which he submitted his application for Canadian citizenship - April 7, 1997 - as required under subsection 5(1)(c) of the Act. The citizenship judge erred in fact and law in approving the respondent's application.
[11] The residence requirements are clear, and the Trial Division jurisprudence abounds with unmistakeable exegesis of those requirements:
Re Pourghasemi (1993), 19 Imm. L.R. (2d) 259
Re Koo, [1993] 1 F.C. 286
Re Hui (1994), 24 Imm. L.R. (2d) 8
Re Chan (1998) 144 F.T.R. 117
M.C.I. v. Kam Biu Ho, T-19-98, Nov. 24, 1998
Wai Hong Chan v. M.C.I., T-193-98, Nov. 30, 1998
[12] Of particular interest are the passages written by Madam Justice Reed in the Koo decision reported on pages 292 and 293:
| In some decisions it has been suggested that the changes in the Citizenship Act, which were made in 1978 [S.C. 1976-77, c. 52, s. 128] lead to the conclusion that Parliament intended that physical presence for the whole three-year period was not required. This is said to be related to the removal from the Act of qualifications based on domicile. I have read the Parliamentary debates and committee proceedings of that period and can find nothing to substantiate that conclusion. Indeed, quite the contrary seems to be the case. The requirement of three-year residence within a four-year period seems to have been designed to allow for one year's physical absence during the four-year period. Certainly, the debates of the period suggest that physical presence in Canada for 1,095 days was contemplated as a minimum. |
| In some decisions it has been said that in the case of an applicant: |
| ... who would very obviously make an excellent citizen the provisions of the Act should be given a liberal interpretation so as to make the granting of citizenship to him possible ... |
| See, for example, Kleifges (In re) and in re Citizenship Act, [1978] 1 F.C. 734 (T.D.), at page 742. |
| I have difficulty with that admonition. If it means that the requirements of the Act are to be interpreted differently for a person about whom the judge has formed a good opinion (as a potential citizen) from that which applies to a person about whom the judge has not formed his opinion, then, I find I have to reject the rule of interpretation. The same criteria are required to be met by all applicants regardless of the judge's opinion on the individual's qualities as a potential citizen. The law should be applied equally to all. |
[13] No justice-minded person could have any quarrel with those propositions expressed by Reed, J. Nevertheless, this Court believes that the respondent could one day become a citizen, of whom all of Canada will be proud.
[14] Here, the citizenship judge fell into a fundamental error; and her decision granting citizenship to the respondent must be quashed and set aside. Therefore, the Minister's appeal is allowed.
"F.C. Muldoon"
F.C. Muldoon
Ottawa, Ontario
February 16th, 2000
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