Date: 20100628
Docket: T-1205-09
Citation: 2010 FC 700
Ottawa, Ontario,
June 28, 2010
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
KAM YUET
LEE
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
Minister, pursuant to s. 14(5) of the Citizenship Act, R.S.C. 1985, c.
C-29 and s. 21 of the Federal Courts Act, appeals the decision of a
Citizenship Judge, dated May 29, 2009, approving the grant of citizenship to
the respondent under s. 5(1) of the Citizenship Act. In approving the
grant of citizenship the Citizenship Judge’s reasons, beyond the standard
check-box form, were as follows: “English weak – but enough (+knowledge).” For
the reasons that follow this appeal must be allowed.
I. Background
[2]
The
respondent, Kam Yuet Lee, became a permanent resident of Canada on November 20, 2001. On
July 9, 2008 he applied for Canadian citizenship.
[3]
Mr. Yuet
Lee was interviewed by a citizenship and immigration officer on December 15,
2008. It became readily apparent to the officer that the respondent did not
understand basic questions in English and that he did not have an adequate
knowledge of the English language. He did not understand or respond to such
questions as “what is your name?” Nonetheless, the officer permitted the
respondent to write the knowledge test. The respondent failed, answering six
questions correctly out of twenty.
[4]
The
officer referred the applicant to a Citizenship Judge with the following notation:
FAILED TEST.
Client did not understand any question I asked him. Did not understand what is
your name, how did you get to the office or any question I asked him. LANGUAGE
AND KNOWLEDGE TO BE ASSESSED.
[5]
The
Citizenship Judge invited the respondent to an interview on February 13, 2009,
but the respondent did not come. His daughter spoke with the officer and
informed her that her father did not speak English and would require the use of
an interpreter for the hearing. A second interview was held on May 29, 2009 by
the Citizenship Judge. The applicant's affiant makes a number of hearsay
statements about what transpired in this interview, principally that the
respondent's daughter attended to interpret for him, that the Citizenship Judge
told her the respondent barely passed, and that the respondent was instructed
to practice his English at home because he was “pretty close”.
[6]
The
Citizenship Judge approved the respondent's grant of citizenship.
II. Issues
[7]
The
Minister raises the following issues on this appeal:
1. Did the Citizenship Judge
provide adequate reasons for his decision?
2.
Did the Citizenship Judge err by
finding that the Respondent met the requirements under paragraphs 5(1)(d)-(e)
of the Citizenship Act?
III. Analysis
[8]
The
respondent filed no materials and, although he appeared at the hearing and made
brief submissions, he did so through his daughter who interpreted for him. It
was evident to me that the respondent has minimal ability in the English
language.
[9]
The
applicant submits that the Citizenship Judge breached procedural fairness by
failing to provide adequate reasons for his decision. The applicant submits
that the Citizenship Judge was obligated to explain how the respondent met the
language criteria of the Citizenship Act, in light of the evidence that
he required an interpreter at the interview.
[10]
The question of whether adequate
reasons were provided is a question of procedural fairness. The standard of review on questions of procedural fairness
is correctness: Dunsmuir v. New Brunswick, 2008 SCC 9.
[11]
“The duty to
provide reasons is a salutary one”: Via Rail Inc. v. National Transportation Agency, [2001] 2 F.C. 25 at p. 35 (C.A.). As the
Court of Appeal has instructed, reasons must set out the decision-maker’s “findings of fact and the principal
evidence upon which those findings were based…[t]he reasoning process
followed…[and] consideration of the main relevant factors”: Via Rail, supra
at 36.
[12]
The content of the duty to
give reasons varies with the circumstances of a given case: Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. In assessing the content of the duty to give
reasons, one of the principal considerations is whether the reasons give the
parties the ability to assess and “effectuate any right of appeal or judicial review that
they might have”: Via Rail, supra at p. 35.
[13]
In my view, the reasons in this
case, while extremely truncated, were adequate. The check box form used by the
Citizenship Judge suggests that he considered each requirement for a grant of
citizenship and made a factual finding that each requirement was satisfied.
His additional written reasons explain why he thought the respondent met the
test for a grant of citizenship. The reasons allowed the applicant to effectuate
this appeal. The reasons provided did not breach procedural fairness, but that
is not to say that they evidenced a reasonable decision.
[14]
The
applicant submits that “[i]t is completely illogical for the Judge to find that
on May 29, 2009, the Respondent had adequate language skills when it is evident
from the Record that in December 2008, the Applicant did not speak English.”
The applicant submits that the Citizenship Judge’s reasons do not support the
finding that the respondent had the official language ability and knowledge
necessary for a grant of citizenship.
[15]
Subsections
5(1) (d) and (e) of the Citizenship Act read:
|
5.
(1) The Minister shall grant citizenship to any person who
...
(d)
has an adequate knowledge of one of the official languages of Canada;
(e)
has an adequate knowledge of Canada and of the responsibilities
and privileges of citizenship;
|
5.
(1) Le ministre attribue la citoyenneté à toute personne qui, à la fois :
…
d)
a une connaissance suffisante de l’une des langues officielles du Canada;
e)
a une connaissance suffisante du Canada et des responsabilités et avantages
conférés par la citoyenneté;
|
[16]
These
provisions require that an applicant must have an adequate knowledge of either
French or English and an adequate knowledge of Canada in order to be granted Canadian
citizenship.
[17]
The Citizenship
Regulations, S.O.R./93-246 provide for more detailed guidance on how
adequate official language ability and adequate knowledge of Canada are to be determined. Sections 14 and 15 of the Regulations read:
|
14. The criteria for
determining whether a person has an adequate knowledge of one of the official
languages of Canada are, based on questions prepared by the Minister,
(a) that the person
comprehends, in that language, basic spoken statements and questions; and
(b) that the person can convey
orally or in writing, in that language, basic information or answers to
questions.
15. The criteria for determining whether a person has an adequate
knowledge of Canada and of the
responsibilities and privileges of citizenship are that, based on questions
prepared by the Minister, the person has a general understanding of
(a) the right to
vote in federal, provincial and municipal elections and the right to run for
elected office;
(b) enumerating
and voting procedures related to elections; and
(c) one of the
following topics, to be included at random in the questions prepared by the
Minister, namely,
(i) the chief
characteristics of Canadian social and cultural history,
(ii) the chief
characteristics of Canadian political history,
(iii) the chief
characteristics of Canadian physical and political geography, or
(iv) the
responsibilities and privileges of citizenship, other than those referred to
in paragraphs (a) and (b).
|
14. Une personne possède une connaissance suffisante de l’une des
langues officielles au Canada si, à l’aide de questions rédigées par le
ministre, il est établi à la fois :
a) qu’elle
comprend, dans cette langue, des déclarations et des questions élémentaires;
b) que son
expression orale ou écrite dans cette langue lui permet de communiquer des
renseignements élémentaires ou de répondre à des questions.
15. Une personne possède une connaissance suffisante du Canada et des
responsabilités et privilèges attachés à la citoyenneté si, à l’aide de
questions rédigées par le ministre, elle comprend de façon générale, à la
fois :
a) le droit de
vote aux élections fédérales, provinciales et municipales et le droit de se
porter candidat à une charge élective;
b) les
formalités liées au recensement électoral et au vote;
c) l’un des
sujets suivants, choisi au hasard parmi des questions rédigées par le
ministre :
(i) les
principales caractéristiques de l’histoire sociale et culturelle du Canada,
(ii) les
principales caractéristiques de l’histoire politique du Canada,
(iii) les
principales caractéristiques de la géographie physique et politique du
Canada,
(iv) les
responsabilités et privilèges attachés à la citoyenneté autres que ceux visés
aux alinéas a) et b).
|
[18]
While it
is possible in certain communities in Canada
to conduct one’s life in a language other than French or English, and without
any substantial knowledge of Canada, the citizens of Canada, through Parliament, have chosen to make
a certain level of language and knowledge abilities a requirement to obtain a
grant of Canadian citizenship. Thus, the Citizenship Act requires an
adequate knowledge of French or English and an adequate knowledge of Canada before a grant of
Canadian citizenship will be given.
[19]
In this
case, the Citizenship Judge determined that the respondent possessed an
adequate knowledge of English and an adequate knowledge of Canada to entitle him to a grant of
citizenship. The Citizenship Judge’s additional reasons beyond the check-box
form are comprised of the single sentence: “English weak – but enough
(+knowledge).” In the circumstances of this case, the Citizenship Judge’s
determination was insufficiently justified and is therefore unreasonable.
[20]
Less than
six months before the Citizenship Judge interviewed the respondent the
respondent was unable to answer the most basic of questions in English, such as
“what is your name?” The respondent was only able to answer correctly thirty
percent of the questions on the knowledge of Canada test. He was referred to the Citizenship
Judge precisely because his English language ability and knowledge of Canada were so poor, with the
express instruction of why he was being referred.
[21]
In this
context, the Citizenship Judge was required to provide some explanation of how
an applicant, who less than six months earlier, had barely a basic knowledge of
English and Canada, let alone an “adequate” knowledge of either, had suddenly
obtained the levels necessary for a grant of citizenship. The Citizenship
Judge provided no such explanation. It is not enough to implore applicants for
citizenship to practice their official language abilities, and/or to gain
further knowledge of Canada, after they have
obtained citizenship; the Citizenship Act requires the possession of
adequate knowledge before a grant of citizenship is given.
[22]
In this
case, the Citizenship Judge provided no reasons to support his determination
that the respondent had an adequate knowledge of English (or French) or an
adequate knowledge of Canada. The decision is therefore unreasonable
and must be set aside.
[23]
Mr. Yuet
Lee is to be commended for wishing to become a citizen of this country and I
have no doubt that he would be a credit to Canada; however, he must improve his English
language skills. As difficult as he may find that given his work schedule,
there are resources, aside from his daughter, who can assist him in that
effort. The Court wishes him success.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this appeal is allowed and the decision of
the Citizenship Judge is quashed. No costs are awarded.
“Russel
W. Zinn”
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