Date: 20000328
Docket: T-668-99
BETWEEN:
MAHESWARY MAHARATNAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.:
[1] These reasons arise out of an appeal by way of application from a decision of a Citizenship Judge, dated the 12th of March, 1999, wherein the learned Citizenship Judge refused to approve the applicant"s application for Canadian citizenship. The Citizenship Judge determined that the applicant had not demonstrated an adequate knowledge of Canada and of the responsibilities and privileges of citizenship as required by paragraph 5(1)(e) of the Citizenship Act1 ("the Act"). The Citizenship Judge further declined to make a recommendation for an exercise of discretion in favour of the applicant under either of subsections 5(3) and (4) of the Act . The Citizenship Judge wrote in his letter of decision:
| Pursuant to subsection 15(1) of the Citizenship Act, I have considered whether or not to make a recommendation for an exercise of discretion under subsection 5(3) and 5(4) of the Act. Subsection 5(3) of the Act confers discretion to the Minister to, among other things, waive on compassionate grounds, in the case of any person, the knowledge requirements you failed to meet. As to subsection 5(4) of the Act, it empowers the Governor in Council to direct the Minister to grant citizenship to any person in cases of special and unusual hardship or to reward services of an exceptional value to Canada. |
| There was no evidence presented to me at the hearing of special circumstances that would justify me in making such a recommendation under either of subsections 5(3) or 5(4). Pursuant to the provisions of subsection 14(3) of the Citizenship Act, you are, therefore, advised that, for the above reasons, your application for citizenship is not approved. |
[2] On the appeal before me, the sole issue was whether or not the learned Citizenship Judge had properly exercised his or her discretion under subsection 15(1) of the Act. That subsection reads as follows:
| 15. (1) Where a citizenship judge is unable to approve an application under subsection 14(2), the judge shall, before deciding not to approve it, consider whether or not to recommend an exercise of discretion under subsection 5(3) or (4) or subsection 9(2) as the circumstances may require.
|
15. (1) Avant de rendre une décision de rejet, le juge de la citoyenneté examine s'il y a lieu de recommander l'exercice du pouvoir discrétionnaire prévu aux paragraphes 5(3) ou (4) ou 9(2), selon le cas.
|
[3] In her affidavit filed on this appeal by way of application, the applicant attests:
| 8. The Citizenship Judge asked me, when I was unable to recall the information, if I had studied the booklet. My husband replied that I did; but that I was sick. However, neither my husband nor I, specifically, mentioned that I had memory problems because at that particular time we did not think that I was going to receive a negative decision. |
[emphasis added]
Subsequent to the hearing before the Citizenship Judge, but before she was notified of the negative decision on her citizenship application, the applicant obtained from a family physician, written verification that she was under the care of the physician: "... for her depressions & memory problems."
[4] Counsel for the applicant urged that, once the Citizenship Judge was advised that the applicant was "sick", given the obligation placed on the Citizenship Judge by subsection 15(1) of the Act , the Citizenship Judge was under an obligation to enquire as to the nature of the applicant"s sickness to determine whether it might be a factor to be considered in the exercise of his or her discretion.
[5] I cannot accept the argument advanced by counsel. I am satisfied that the onus is on an applicant for Canadian citizenship to satisfy a Citizenship Judge that he or she fulfills the requirements of the Act or warrants an exercise of discretion by the Citizenship Judge, pursuant to subsection 15(1).
[6] In Abdule v. Canada (Minister of Citizenship and Immigration)2, Madame Justice McGillis, on an appeal similar to this, wrote at paragraph 18:
| In outlining her reasons for refusing to make a recommendation for the exercise of discretion, the citizenship judge noted that the applicant had failed to provide "any evidence" to establish, among other things, that she had "a physical disability or disease severe enough to impair the learning process". However, to the contrary, the applicant had adduced two letters from a physician outlining medical reasons concerning her inability to learn. As a result, the statement of the citizenship judge that the applicant had not adduced "any evidence" establishes unequivocally that she either failed to consider relevant evidence or misapprehended the evidence before her. The citizenship judge therefore erred either by failing to consider the medical evidence or by misapprehending it. |
There was no such evidence adduced before the Citizenship Judge in this matter. On the evidence that was before the Citizenship Judge, he or she made no error in determining that there was "no evidence" presented before him or her to establish "special circumstances" that would have justified a recommendation of exercise of discretion.
[7] For the foregoing reasons, this appeal was dismissed.
[8] For the consideration of the respondent, I add the following. A "NOTICE TO APPEAR - Hearing with a Citizenship Judge", included in the Tribunal record with respect to another appeal before me, provides no notice of the discretion vested in a Citizenship Judge under subsection 15(1) of the Act and of the desirability for an applicant to bring with him or her to a hearing any evidence that would support the exercise of discretion. Since, as I understand it, most applicants for citizenship appear before a Citizenship Judge without counsel, and are likely to be unfamiliar with the existence of humanitarian and compassionate discretion, in the interest of fairness, it might be useful to include a brief notice regarding the existence of discretion in the "NOTICE TO APPEAR".
"Frederick E. Gibson"
J.F.C.C.
TORONTO, ONTARIO
March 28, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: MAHESWARY MAHARATNAM |
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
| DATE OF HEARING: TUESDAY, MARCH 28, 1999 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: GIBSON J. |
DATED: TUESDAY, MARCH 28, 2000
APPEARANCES: Mr. Lorne Waldman
For the Applicant
Ms. Claire A.H. leRiche
For the Respondent
| SOLICITORS OF RECORD: Jackman, Waldman & Associates |
Toronto, Ontario
M4P 1L3
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
Date: 20000328
Docket: T-668-99
Between:
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
__________________
1 R.S.C. 1985, c. C-29.
2 1999 CarswellNat 2048 (F.C.T.D.).
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