Feng (Re), docket T-1-97

Date: 19980122

Docket: T-1-97

IN THE MATTER OF THE CITIZENSHIP ACT,

R.S.C. 1985, Chap. C-29; and

IN THE MATTER OF an appeal from the

decision of a Citizenship Judge; and

IN THE MATTER OF:

     PING CHENG FENG,

     Appellant.

     REASONS FOR JUDGMENT ON APPEAL

MULDOON, J.

[1]      The appellant appeared on January 5, 1998, in Toronto, with her daughter Tina Shih who acted as her representative before the Court, and with her daughter Lucy Shih who acted as translator. The above described arrangement resulted in many "committee" answers and "testimony" purportedly from the appellant. The appellant's surname is Shih, which was expressed orally at different times during the hearing, both before and after PING CHENG FENG. The Minister appointed Peter K. Large to be amicus curiae in this matter.

[2]      The appellant was admitted to Canada, with her husband and two of her four children, for permanent residence on July 25, 1992. Her eldest child (a son) remains in Taiwan with his own family. The other three consist of the two daughters who were present at the hearing and a younger son.

[3]      The appellant's representative, Tina Shih made an opening statement which, in part, ran:

My mother [the appellant] suffers from arthritic pain as a result of her advancing years, and as a result of two falls that she sustained. She returned to Taiwan to undergo a series of medical treatments. In particular, acupuncture during August, 1992, and April, 1995. During this time, she stayed with my brother and his family in Taiwan, and returned to Canada for long periods between her treatment. She has now fully recovered, and has remained in Canada continuously since February, 1996, with the exception of one holiday period during November 10th, 1996 to February 15th, 1997.

If she were to apply for citizenship today, she will be only 74 days short of the 1,095 required days within the previous four years.

I am a citizen of Canada together with my father, and my brother, and sister. My family would be grateful if the Court could see fit to allow my mother's appeal so that she can take her place beside us as citizen of Canada.

(transcript: pp. 2 & 3)

[4]      The appellant in fact returned to Taiwan for long periods of time, starting two weeks after being landed. The file discloses a memorandum to the presiding judge from a citizenship officer on October 23,1995. It discloses, and the appellant admits (transcript: pp. 11 to 14) that of the requisite 1095 days in the four years immediately preceding the appellant's application for citizenship absences of 555 days and presence in Canada of 540 days, fewer than half of those 1095 days prescribed by Parliament in paragraph 5(1)(c) of the Act. The appellant in answer to the amicus curiae, asserted that she has a right to citizenship (transcript: p. 18), because she has stayed here in Canada long enough (transcript: p. 26).

[5]      The appellant returned to Taiwan to continue to receive acupuncture treatments. She testified that she does not trust any Canadian acupuncturist, although she appears not to have enquired much to find one (transcript: pp. 14 & 15).

[6]      Asked why her English is not better than it is, she answered through her daughter, the interpretor: "I want to register for ESL, but it is full. So I am waiting for the next term, and the last school is moving to another place too far from home", (transcript: p. 16). The appellant gave another excuse for her poor English. She said she did not attend classes, "because it was snowing, so I didn't go" (transcript: p. 23). Of course, if she had remained in Canada, she could have ironed out these vicissitudes over a longer time frame. This demonstrates the importance of Parliament's prescription of 1095 days' presence out of the four years (1460 days) immediately before applying for citizenship.

[7]      The judicial administration of the residence qualifications in paragraph 5(1)(c) of the Citizenship Act, R.S.C. 1985, Chap C-29, has been vexed for at least two decades. Over that time Parliament has been quite constant in maintaining the text of the legislation, even unto this day, thus:

5.(1) The Minister shall grant citizenship to any person who (a) * * * (b) * * * (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;

5.(1) Le ministre attribue la citoyenneté à toute personne qui, à la fois: a) * * * b) * * * c) a été légalement admise au Canada à titre de résident permanent, n'a pas depuis perdu ce titre en application de l'article 24 de la Loi sur l'immigration, et a, dans les quatre ans qui ont précédé la date de sa demande, résidé au Canada pendant au moins trois ans en tout, la durée de sa résidence étant calculée de la manière suivante: (i) un demi-jour pour chaque jour de résidence au Canada avant son admission à titre de résident permanent, (ii) un jour pour chaque jour de résidence au Canada après son admission à titre de résident permanent;

This is about as straightforward a legislative text as Parliament has ever enacted.

[8]      The word "residence" or "resident" appears to have given some flights of fancy to some judges over the years, but it too is a most straightforward word. It does not signify absence, but rather, presence. The English-language words mean the same as the French-language words. There is no difference of concept.

[9]      The Gage Canadian Dictionary - revised and expanded, 1988, gives these meanings:

reside v. -sided, -siding. 1 live (in or at) for a long time; dwell. 2 be (in); exist (in); Her charm resides in her happy smile.

residence n. 1 a place where a person lives; house; home. 2 the act of residing; living; dwelling. 3 a period of residing in a place. 4 the fact of living or doing business in a place for the performance of certain duties, to comply with certain regulations, or to qualify for certain rights and privileges: a writer in residence. They have not been in residence long enough to apply for citizenship. 5 a building in which students, nurses, etc. live.

in residence, a living in a place: The owner of the house is not in residence. b living in an institution while on duty or doing active work there: a doctor in residence.

resident n., adj. - n. 1 a person living in a place, not a visitor. 2 a physician during residency, especially one who has completed internship. 3 an official sent to live in a foreign land to represent his or her country. 4 formerly, a representative of the British Governor General of India at a native court. 5 a bird or animal that is not migratory. 6 a person living or doing business in a place in order to comply with certain regulations, or qualify for certain rights or privileges.

-adj. 1 staying; dwelling in a place. A resident owner lives on his or her property. 2 living in a place while on duty or doing active work. 3 not migratory: English sparrows are resident birds. 4 of qualities, present; intrinsic; inherent. 5 of a person, living or doing business in a place in order to comply with certain regulations, or to qualify for certain rights or privileges.

(p. 1247)

[10] The Oxford Dictionary of Current English, 1990, reveals this:

reside v.i. have one's home or dwell permanently (in specified place); (of power or right etc.) be vested in; (of quality) be present or inherent in

residence n. residing (take up residence); place where one resides, abode of; house esp. of considerable pretension; in residence dwelling at specified place esp. for performance of duties or work

resident 1 n. permanent inhabitant (of place); guest of hotel staying overnight. 2a. having quarters on the spot (resident housekeeper); residing in residence; located in (feeling resident in the nerves).

(p. 635)

[11] Le Petit Robert - nouvelle édition * * * mise à jour pour 1998 states the following:

résidant, ante adj. (résident, 1283; n.m., "habitant", 1415; de résider). Qui réside (en un lieu). V. Habitant. Spécialt. (1846) Membre résidant d'une académie, d'une société savante (opposé à correspondant).

résidence n.f. (1271; lat. résidentia). 1 Séjour effectif et obligatoire en un lieu; obligation de résider. Emploi, charge qui demande résidence. La résidence d'un magistrat, d'un évêque. - Par ext. Durée de ce séjour. Spécialt. Résidence forcée, surveillée (d'une personne astreinte par décision de justice à rester dans un lieu). 2 (1283). Le fait de demeurer habituellement en un lieu; ce lieu. V. Demeure, habitation, séjour. "Durant les cinq ans de ma résidence . . ." (Baudel). Avoir, établir, fixer sa résidence quelque part. Changer sa résidence. "Les maisons semblaient être de résidence bourgeoise" (Romains). Résidence virilocale. Dr. Lieu où une personne habite effectivement durant un certain temps (ou a un centre d'affaires, d'activités), sans y avoir nécessairement son domicile. Certificat de résidence. Résidence principale. Cour. (sens 3e) Résidence secondaire: maison de campagne, de vacances ou de week-end. 3 (1840). Lieu construit, généralement luxueux, où l'on réside. V. Demeure, logement, maison. "Plus d'un, en apercevant ces coquettes résidences, si tranquilles, enviait d'en être le propriétaire" (Flaub). Une somptueuse résidence (V. Résidentiel). "Il reçoit dans cette résidence princière le feuilletonniste d'un de nos grands journaux" (Balz.) (v. 1960) Groupe d'immeubles résidentiels assez luxueux. La Résidence X ... 4 Charge de résident; lieu (ville, bâtiments) où habite un résident, où se tiennent ses services. La Résidence de Rabat (à l'époque du protectorat).

(p. 1683)

résider v. intr. (v. 1380); lat. residere). 1 Être établi d'une manière habituelle dans un lieu; y avoir sa résidence (surtout admin., dr. ou didact.) "Les ambassadeurs ... prennent les moeurs du pays où il résident (Chateaub.). Les étrangers qui résidaient aux États-Unis. 2 Fig. Avoir son siège, exister habituellement, se trouver (dans tel lieu, en telle personne ou telle chose). "Le principe de toute souveraineté réside essentiellement dans la Nation" (Déclar. Dr. Hom). "L'ordre idéal des peuples réside dans leur bonheur" (Camus). V. Consister. La difficulté réside en ceci.

(p. 1684)

[12] The above cited dictionaries all reveal that the French and English words are derived from a common Latin root, and they all connote abiding or dwelling in a certain place (or country) by living there and being present there, not absent.

[13] Is Parliament rigid or insensitive in making residence requirements for those who apply for citizenship? It could be if it chose, but it does not seem to be cruel or rigid in enacting the above recited provisions of section 5 of the Act.

[14] To provide that an applicant for citizenship may validly be absent from Canada one year in four, or one month in four during the previous four years is not at all and certainly not unduly rigid or insensitive in this judge's opinion. It does not make a "prisoner" in Canada of a would-be citizen. It does mean that whoever applies for citizenship must be ready to do so, and must regard such application seriously enough to make some small self-sacrifice in order to acquire citizenship.

[15] Why have a residence requirement at all? It seems clear to this judge that Parliament declines to accord Canadian citizenship to foreigners; but requires residence in Canada during three of the four years immediately preceding the date of the application in order to "Canadianize" the would-be citizen. Maybe some can achieve that goal in fewer days than Parliament has prescribed but the prescription is for Parliament alone to propound, not for the applicant and not for the judiciary.

[16] While the purpose of paragraph 5(1)(c) is clear, it is noteworthy that Parliament does not mention the word "Canadianize" (if it be a word), but rather asserts years, composed of days of residence.

[17] Since 1982 and the enactment of the Canadian Charter of Rights and Freedoms (all honour be to it), judges have been empowered in the appropriate circumstances, to set aside, "read down" or "up", and where necessary, sometimes virtually to amend legislation. Sometimes that notion of judicial omnipotence "slops" over into the everyday duties and thinking of some judges.

[18] This Court is not a social-working establishment, nor yet an institute of applied psychology whose duty is to make all applicants feel good. When an applicant's expectations are pitched too high for, and out of accord with, Parliament's legislative provisions, then (so long as judges do not purport to amend that legislation), the applicant's high hopes or outlaw expectations will just have to be dashed. There is no curial joy in that, but possibly responsibility must fall on the applicant's advisers, and of course on Parliament itself. So the Court must not bend the law, even to help the applicant to feel good, even sparing him or her frustration, justifiable as such frustration is. Nor does judicial duty require that judges "look good", or appear to be lords and ladies bountiful.

[19] Canada proclaims itself to be a democratic country, but democracy itself is imperilled when judges arrogate the rôle of legislators. It makes a mockery of the citizenship judges' care and attention to their duties.

[20] To give away citizenship to those who do not take the trouble to comply with the provisions solemnly enacted by Parliament is not only a kind of lèse majesté, but it just cheapens Canadian citizenship. Serious, sincere applicants simply must comply with the law, in common with everyone else, whether they like it or not. What a terrible message this Court sends, by overruling a citizenship judge, in granting someone citizenship by defeating Parliament's will! The Court does not make itself look good by that sort of false bounty. It does not foster respect for the law.

[21] It appears clearly that all of the foregoing is not merely judicial speculation or prattle. Parliament has been amending the Citizenship Act from time to time since the promulgation of the revised statutes. It has not taken any occasion to enact any provision whatever regarding the residence rules, to make any exception or provide for the granting of citizenship to any applicant who

- would likely be a good citizen, but fails to comply with paragraph 5(1)(c);

- has "centralized" his or her "lifestyle" in Canada because of any circumstance, but is absent;

- has sent or deposited his or her personal property (i.e. bank account, clothing, automobile, etc.) to reside in Canada, while the applicant is absent from this country;

- has become "Canadianized" in less time than the prescribed three of the immediately previous four years;

- needs to be out of Canada on business or whatever for longer than one year of the immediately previous four years;

- has a spouse and/or children or other family members who are already citizens.

[22] This trend of ignoring the law as Parliament wrote it seems to have started with Papadogiorgakis [1978] 2 F.C. 208. Although that case was decided by an eminent judge of the day, the decision is not binding simply because there is no appeal from these citizenship appeal judgments. This factor can create, and does still create a scandalous incertitude in the law. After all, at p. 75 of the very same volume of the Federal Court Reports, there is the decision of Khoury, adjudicated by an equally eminent judge of the day who came to the exactly opposite conclusion, and the dichotomy has continued to this very day.

[23] As noted, during all this time Parliament has many times amended the Act, up to S.C. 1997, Chap. 22, parts of which came into force as recently as May 20, 1997. The last amendment of the residence rules in section 5, which amendment evinces Parliament's will, was by S.C. 1987, Chap. 53, assented to in December, 1987. It runs:

1.. Section 5 of the Citizenship Act is amended by adding thereto, immediately after subsection (1) thereof, the following subsection: (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).

1. La Loi sur la citoyenneté est modifiée par insertion, après le paragraphe 5(1), de ce qui suit: (1.1) Est assimilé à un jour de résidence au Canada pour l'application de l'alinéa (1)(c) et du paragraphe 11(1) tout jour pendant lequel l'auteur d'une demande de citoyenneté a résidé avec son conjoint alors que celui-ci étant citoyen et était, sans avoir été engagé sur place, au service, à l'étranger, des forces armées canadiennes ou de l'administration publique fédérale ou de celle d'une province.

[24] As if the residence rules had not already been clear enough Parliament (not the judiciary) threw a bit more light on them by enacting the above recited amendment. It provides, in effect, that an applicant can "Canadianize" himself or herself by living with a Canadian spouse posted abroad and gain residence day by day. That, and all, residence under the Act is gained by three out of four years consisting of days of presence - not absence. When Parliament thinks of the qualifying period or term of residence, it thinks of residence acquired day by day, not of absence, but of presence; not of sending personal property, but of personal presence; not of centralizing one's lifestyle, but of living day after day after day in Canada, until the requisite number of days qualifies an applicant pursuant to subsections 5(1) or (1.1). Subsection (1.1) is the only exception whereby an applicant can be "Canadianized" while residing outside of Canada, but with a Canadian spouse, day in, day out.

[25] No doubt, an applicant who fails to achieve citizenship will not feel good about it, but that is strictly not this Court's business. It is Parliament's business. Parliament thinks of days of presence to constitute residence.

[26] The Court is not a legislature. The Court can shape the modelling clay of common law and equity, but the statutes of Parliament are cast in stone, unless and until Parliament repeals or amends them, (or violates the Charter). When the cabinet last attempted to legislate without the benefit of Parliamentary enactment, it was this Court which nullified that unlawful effort: Saskatchewan Wheat Pool v. Canada (Attorney General) (1994) 67 F.T.R. 98, paras. 67, 68 & 69. This Court should do no less than observe the standards which it sets.

[27] For all of the foregoing reasons, not least the deficiency in days of residence, as this Court finds, the appellant's appeal is dismissed.

[28] However, the citizenship judge seems not to have been confused about the meaning and operation of subsections 5(3) and (4) as the amicus curiae first thought (transcript: pp. 30 & 31). This Court finds that the citizenship judge exercised her discretion, and according to logical jurisprudence, Re El-Nahoum (1992) 49 F.T.R. 75, para. [9], and Re Khat same volume, p. 252, paras. [4] through [6], this Court just ought not to interfere in those matters.

    

Judge

Ottawa, Ontario

January 22, 1998