Date: 20010215
Docket: T-469-00
Citation: 2001 FCT 79
BETWEEN:
RICARDON FEDERIZON,
Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent
REASONS FOR ORDER
Muldoon, J. (orally)
[1] An unhappy part of being a judge, although many lawyers still aspire to be, is that at the end of each case one has to come to a decision, and always, if there be two sides, one will lose and one will win. That's the unhappy part, because no one likes to disappoint litigants. Especially those who are applying for citizenship.
Page: 2
[2] And that is what this is. This is an application by Ricardon Federizon for a reversal, an upsetting of a citizenship judge's refusal to recommend that he receive a grant of Canadian citizenship. The citizenship judge was Judge William Day; his decision was rendered on January 11th, 2000, and he did not approve the appellant's application for citizenship. So pursuant to the Citizenship Act and the Federal Court Act Mr. Federizon has applied to this court to rectify, in his view, the citizenship judge's decision.
[3] The Court mentioned earlier in discourse with counsel, that there is a kind of locus classicus in citizenship appeals, and that is the case in Re: Papadogiorkakis, which intimidates people because it is difficult to pronounce. Papadogiorkakis is recorded in [1978] 2 FC 208. Papadogiorkakis is a decision by an eminent and well-known, well-regarded judge, the former Associate Chief Justice Thurlow. It is most often cited in appeals where the appellant is unhappy with the citizenship judge's disposition and decision on the residence qualifications set out in the Citizenship Act.
[4] This court will not now go into Papadogiorkakis in any great detail because it is so well known. But this court will point out, as has already occurred today, that in the very same volume of the Federal Court Reports another experienced, well-thought-of, eminent judge of the day, Mr. Justice Walsh, rendered a decision in the case of Re: Khoury, reported at [1978] 2 FC 75. So, the same volume of the Federal Court Reports. The reason there is some importance in mentioning both of these cases is that they come to, in effect, opposite conclusions. Chief Justice Thurlow allowed the application for citizenship; Mr. Justice Walsh dismissed it in his case, Khoury.
[5] There is a passage in Khoury's headnote which this court thinks might well be read into the record and it says:
| Held: the appeal is dismissed. Although appellant perhaps considered himself a permanent resident of Canada following his admission, he cannot be held to have been a resident within the meaning of this section during the periods when he was actually residing abroad because of his business assignments. There is no justification for interpreting "residence" as "domicile". |
| The citizenship judge did consider the possibility of recommending ministerial discretion. Waiver of the residence requirement for "any person under disability", however, is not applicable. The only avenue open to the appellant is a direction by the Governor-in-Council to the Minister to grant citizenship "in order to alleviate cases of special and unusual hardship or to reward services of an exceptional value to Canada". |
[6] And so, although Mr. Justice Walsh thought that there were certainly some sympathetic aspects to the case of Habib Khoury he nevertheless concluded that Mr. Khoury did not meet the criteria established in the Citizenship Act and therefore the application had to be dismissed.
[7] Now, "domicile" is a word which seems to have bedeviled some of the judges of this court at times. One might mention that "domicile" is set out, and "residence" is set out - especially "residence" - in both official languages in the Federal Court decision of Moa-Song Chang. It was docket number T-1183-97. There the court reviewed the word "residence" in both official languages. Indeed, found among the passages of that decision is a quotation of the relevant parts of the Citizenship Act 5(1)(c)(i) and (ii). After reviewing that the court said, "This is about as straight-forward a legislative text as Parliament has ever enacted". And this judge says "Amen" to that because this judge wrote that decision.
[8] And this judge is of the view that it is just a plain scandal, the division of opinion on this court is a plain scandal in regard to such a straight-forward legislative text. It confounds citizenship judges, it confounds lawyers. Lawyers possibly give false hope to their clients. Sometimes they give hope, of course, and that hope is rewarded, but the hope, it seems to this judge, does not conform with the provisions of the Citizenship Act.
[9] Paragraph [7] from the Chang case runs as follows:
| 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; |
and then the court reviewed the dictionary definitions of the word "residence" from the Canadian Dictionary and from Le Petit Robert and set out those dictionary definitions right in the judgment, right within the text of the judgment.
[10] The court asked in that case "Why have a residence requirement at all?" [14]:
| 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 certainly not for the judiciary. |
| 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. |
[11] So, when one speaks of days of residence and half-days of residence, one can conclude only that Parliament was intending to convey the meaning of presence in Canada. It would be very difficult to divide a week into several half-days with only one date being present and the next date being not present.
[12] And it is apparent and plain from the meaning of the word "residence" that it bespeaks, and means, presence, not absence.
[13] This court, in viewing the case at bar, refers now as well to an earlier decision of this judge in Re: Pourghasemi [1993] 19 ILR (2nd edition), 259 at 260-261. The passage from Pourghasemi quoted in the respondent's application record at page 9 says:
| It is very clear that the purpose of paragraph 5(1)(c) is to ensure that everyone who is granted precious Canadian citizenship has become, or at least has been compulsorily presented with the everyday opportunity to become "Canadianized". So those who throw in their lot with Canadians by becoming citizens must first throw in their lot with Canadians by residing among Canadians in Canada during three of the preceding four years in order to Canadianize themselves. It is not something one can do while abroad for Canadian life and society exist only in Canada and nowhere else. |
[14] One wonders if the court is taking a stance which is too rigid here, but yet residence is in three of the preceding four years. So in other words Parliament is saying to the applicant or any applicant, you may be absent one-quarter of the time. You may be absent for a whole year and it will still count in your application for citizenship. Now, that may seem to mock what the Court just said about the requirement to be in Canada, but Parliament is the authority to make citizenship law in this country and Parliament has said you must be present, you be resident for three of the preceding four years.
[15] In the case at bar the counsel agreed, which is always a happy thing, on the count of days. The time required to reside in Canada is 1,095 days and - if the court could only find the page on which it is set out in the citizenship judge's reasons which will be found shortly, unless counsel remember.
| MS. SOOD: Yes, My Lord, it's page 8 of the certified record. |
| THE COURT: Page 8, thank you. Citizenship Judge Day made this finding in his reasons: |
| "During the four year period under consideration you..." |
meaning the applicant,
| "... had been absent from Canada for 870 days and present for 590 days representing a shortage of 505 days from the statutory requirement." |
Now that is admitted and agreed to as correct by both counsel and accordingly, this Court finds it to be so, because one can hardly do better than adopt that to which both counsel agree.
[16] The result of all of this, then, in the Court's conclusion, with no joy and considerable sympathy for the appellant's disappointment, the Court finds that the appeal must be dismissed, that the citizenship judge was correct in his determination of the application for citizenship, and that there is no need, indeed there is no right, to refer this matter to anyone else to consider.
[17] The appeal is dismissed.
Judge