Date: 20120523
Docket: T-1046-11
Citation: 2012 FC 621
Ottawa, Ontario, May 23,
2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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FIREHIWOT WOLDEMARIAM
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
Applicant, Firehiwot Woldemariam, brings an appeal of the decision of a
Citizenship Judge made under subsection 5(1)(e) of the Citizenship Act,
RSC 1985, c C-29 (the Act).
[2]
For
the reasons set out below, her appeal is dismissed.
I. Background
[3]
Since
July 25, 2006, the Applicant has remained in Canada as a
permanent resident. She is a single mother of three children.
[4]
She
appeared before a Citizenship Judge for a hearing on June 2, 2011. At that
time, she scored only 7 out of 20 on the knowledge test.
[5]
In
a letter dated June 3, 2011, the Citizenship Judge found that she had not met
the requirement of subsection 5(1)(e) to have adequate knowledge of Canada and
of the responsibilities and privileges of citizenship. She had “poor knowledge
of Canada’s social
history, political structure and legal system.”
[6]
The
Citizenship Judge also considered whether to make a recommendation for the
exercise of discretion. The Citizenship Judge nonetheless concluded that
“[t]here 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).” As a consequence, her application was not
approved.
II. Issue
[7]
The
Applicant raises the following issue:
(a) Did the Citizenship Judge err in
failing to recommend the exercise of discretion under subsections 5(3) or 5(4)?
III. Standard of Review
[8]
Following
Dunsmuir v New Brunswick, 2008 SCC 9, [2009] 1 S.C.R. 190, discretionary
decisions of a Citizenship Judge under subsections 5(3) or 5(4) are reviewed
according to the reasonableness standard (see for example Amoah v Canada
(Minister of Citizenship and Immigration), 2009 FC 775, [2009] FCJ no 947
at para 14).
[9]
It
may be open to the Court to refer the matter back to a citizenship judge if it
is not satisfied that relevant factors have been taken into account in the
exercise of that discretion (see Hassan v Canada (Minister of
Citizenship and Immigration), 2002 FCT 755, [2002] FCJ no 1049 at
paras 14-15).
[10]
The
Court should have regard to the “existence of justification, transparency and
intelligibility” as well as whether the decision falls “within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law” (Dunsmuir, above at para 47).
IV. Analysis
[11]
A
Citizenship Judge can recommend that the Minister exercise discretion and waive
the knowledge requirement on compassionate grounds (subsection 5(3)) or in
“cases of special or unusual hardship” (subsection 5(4)).
[12]
The
Applicant argues that the Citizenship Judge erred by not recognizing the
special circumstances in her case that would warrant the exercise of
discretion. She is burdened with the care of her three children, the oldest
being diagnosed with autism. This made it difficult for her to focus on and
prepare for the test. She provides a medical letter to the Court to
substantiate these claims, but acknowledges that this information was not
before the Citizenship Judge.
[13]
Whatever
the circumstances facing the Applicant on taking the knowledge test, the
critical issue is that they were not brought to the Citizenship Judge’s
attention for consideration at the time of the hearing. The Citizenship Judge
found there was no evidence presented to recommend waiving the knowledge
requirement and exercising discretion in the Applicant’s favour. That approach
was reasonable under the circumstances.
[14]
In
Huynh v Canada (Minister of Citizenship and Immigration), 2003 FC 1431,
[2003] FCJ no 1838 at para 5, when faced with new evidence of an
applicant’s illnesses, Justice Sean Harrington concluded that “the
Citizenship Judge can hardly be criticized for not considering whether to make
a recommendation to the Minister to grant Mrs. Huynh’s citizenship on
compassionate grounds on material which was not before him” [emphasis in
original].
[15]
Similarly,
Justice Frederick Gibson held in Maharatnam v Canada (Minister of
Citizenship and Immigration), [2000] FCJ no 405 at paras 5-6 that a citizenship
judge did not commit an “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” where no medical evidence
was previously adduced.
[16]
Justice
Gibson also confirmed 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.” The Applicant failed to satisfy this onus by presenting
the evidence to the Citizenship Judge in this case. This shortcoming cannot be
resolved simply by bringing new information to the Court.
[17]
The
authorities relied on by the Applicant are of limited assistance as they
address situations where a citizenship judge ignored or may have provided
inadequate reasons for rejecting medical evidence and related statements by an
applicant at the time of the initial determination (see Re Yousefi
(1995), 91 FTR 296, [1995] FCJ no 326; Bhatti v Canada (Minister of
Citizenship and Immigration), 2010 FC 25, [2010] FCJ no 26).
V. Conclusion
[18]
Lacking
any evidence of special circumstances, it was reasonable for the Citizenship
Judge not to recommend the exercise of discretion based on subsections 5(3) or
5(4) of the Act in this instance. The Applicant’s appeal is dismissed.
JUDGMENT
THIS COURT’S
JUDGMENT is that this appeal is dismissed.
“ D.
G. Near ”
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