Date:
20120710
Docket:
T-1589-11
Citation:
2012 FC 874
Ottawa, Ontario, July 10, 2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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HONG TAO CHEN
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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, Hong Tao Chen, contests the refusal of a Citizenship Judge to
approve her application for citizenship because she did not have an adequate
knowledge of one of the official languages of Canada as required under
subsection 5(1)(d) of the Citizenship Act, RSC 1985, c C-29 (the
Act).
[2]
At
the outset, the Court agreed with the Respondent that Rule 57 of the Federal
Courts Rules, SOR/98-106 should be applied to convert this application into
a proper citizenship appeal brought under subsection 14(5) of the Act as in Shaikh
v Canada (Minister of Citizenship and Immigration), 2010 FC 1254, [2010]
FCJ no 1564 at para 28. I proceeded on that basis throughout the
remainder of the hearing.
[3]
For
the following reasons, the appeal is dismissed.
I. Background
[4]
A
citizen of China, the Applicant became a permanent resident of Canada on October 27, 2005. She submitted her application for Canadian citizenship
on February 19, 2009.
[5]
She
appeared before a Citizenship Officer for a citizenship test on March 23, 2011
where it was indicated that she would be referred to a Citizenship Judge for an
interview to assess her language skills. The interview took place on July 7,
2011.
[6]
In
a letter dated August 4, 2011, the Citizenship Judge determined that the
Applicant did not have an adequate knowledge of English consistent with
subsection 5(1)(d). More specifically, the Applicant was unable to:
• Use short sentences
to answer simple questions on familiar topics such as “Can you tell me about Guang Zhou, China?”
• Speak in the past
tense about something that happened in the past such as “Can you tell me about
your first day in Canada.”
• Express satisfaction
or dissatisfaction by answering such questions as “What do you like about your
work.”
[7]
Similarly,
the Citizenship Judge’s notes from the interview state “Many questions
rephrased and all were asked slowly. Had some answers that were lists
of phrases not always matching the question.”
[8]
The
Citizenship Judge also declined to recommend a favourable exercise of
discretion on the basis of compassionate grounds (subsection 5(3)) or as a case
of special or unusual hardship or to reward services of exceptional value to Canada (subsection 5(4)). She noted that the Applicant “did not present sufficient
evidence to me of special circumstances that would justify me in making such a
recommendation.”
II. Issue
[9]
The
main issue before this Court is whether the Citizenship Judge committed a
reviewable error in reaching the negative decision.
III. Standard of Review
[10]
The
applicable standard of review for a decision of a Citizenship Judge, including
discretionary determinations under subsections 5(3) and 5(4), is now
reasonableness (see Amoah v Canada (Minister of Citizenship and Immigration),
2009 FC 775, [2009] FCJ no 947 at para 14).
[11]
Based
on this standard, the Court will only intervene absent justification,
transparency and intelligibility or an unacceptable outcome in light of the
facts and law (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at
para 47).
IV. Analysis
[12]
The
Applicant insists that the Citizenship Judge’s decision should be set aside
since her performance on the day of the hearing did not reflect her normal
English proficiency due to nervousness and inexperience. She points to
evidence of having taken English classes and her volunteer work with the
Buddhist Compassion Relief Tzu Chi Foundation of Canada.
[13]
As
a preliminary matter, to the extent that the Applicant is presenting new
evidence with her appeal I am unable to consider it. Citizenship appeals are
not trials de novo and proceed based solely on the record before the Citizenship
Judge (see for example Lama v Canada (Minister of Citizenship and
Immigration), 2005 FC 461, [2005] FCJ no 577 at para 21; Hassan v Canada (Minister of Citizenship and Immigration), 2002 FCT 755, [2002] FCJ no 1049 at
para 10).
[14]
Moreover,
I am not persuaded that the Citizenship Judge erred in reaching her
determination. Subsection 5(1)(d) of the Act requires that the Applicant have
adequate knowledge of one of Canada’s official language, in this case English. The
Citizenship Officer raised concerns about the Applicant’s language capabilities
and referred her to an interview where the Citizenship Judge identified similar
issues.
[15]
According
to section 14 of the Citizenship Regulations, SOR/93-246 (the
Regulations), adequate knowledge of an official language is to be assessed
based on whether (a) a person comprehends basic spoken statements and
questions, and (b) can convey orally or in writing basic information or answers
to questions. In this case, the Citizenship Judge provided clear reasons for
questioning the Applicant’s English knowledge that reflects these criteria. The
Citizenship Judge recognized the Applicant’s inability to use short sentences
to answer questions on familiar topics, speak in the past tense about something
that happened in the past and express satisfaction or dissatisfaction. Her
notes also suggest questions had to be asked slowly and rephrased. The answers
provided were mere lists of phrases.
[16]
Given
the issues identified and criteria for assessing language skills, it seems the
Citizenship Judge demonstrated sufficient justification, transparency and
intelligibility when concluding that the Applicant did not have the requisite
knowledge of English. As Justice Eleanor Dawson acknowledged in Liu v Canada (Minister of Citizenship and Immigration), 2008 FC 836, [2008] FCJ no 1045 at
para 14, the “citizenship judge must be satisfied tha[t] an applicant can
understand basic spoken statements and questions in English.”
[17]
While
the Applicant may disagree with the Citizenship Judge’s factual findings, the
role of this Court is not to intervene for the purposes of reweighing the
evidence. The Applicant simply has not met the burden of establishing that the
Citizenship Judge committed a material error (see Liu, above at
para 20). To the extent it was before the Citizenship Judge, the evidence of
her attendance at English as a second language classes is not determinative. Adequate
knowledge must be assessed in light of the criteria in section 14 of
Regulations as was done in this case and is reflected in the reasons given by
the Citizenship Judge (see for example similar reasoning in Re Lai, [1998]
FCJ no 503 at para 4).
[18]
In
addition, I see no basis for concluding that the Citizenship Judge committed a
reviewable error in refusing to recommend the exercise of discretion based on
subsections 5(3) or 5(4) of the Act. The Citizenship Judge simply found there
was insufficient evidence of special circumstances to do so.
[19]
As
part of this appeal, the Applicant appears to put forward her volunteer
contributions as evidence of services of “exceptional value to Canada” under subsection 5(4). Even if this information was clearly before the Citizenship
Judge, it does not follow that this would justify an exercise of discretion as
the threshold is high for that type of recommendation. It will only be made in
exceptional cases of services to Canada and not to a particular company (see
for example Re MH (1996), 120 FTR 72, [1996] FCJ no 823 at
paras 6-8; Fan v Canada (Minister of Citizenship and Immigration),
2002 FCT 746, [2002] FCJ no 1014 at para 13).
[20]
The
Applicant requests that she be granted a second chance or retest of her English
language knowledge. Unfortunately, I cannot assist the Applicant in this
regard. Her only option for taking another test is to reapply for citizenship
and commence the process once again. I would, however, encourage her to
continue to improve her language skills and to re-apply as clearly she is a
kind and caring person and a credit to her community.
V. Conclusion
[21]
Since
the Citizenship Judge’s decision was reasonable in the circumstances, the
appeal is dismissed.
JUDGMENT
THIS COURT’S
JUDGMENT is that this appeal is
dismissed.
“
D. G. Near ”
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