Date: 20120524
Docket: T-1229-11
Citation: 2012 FC 593
Ottawa, Ontario, this 24th day of May
2012
Present: The Honourable Mr. Justice
Pinard
BETWEEN:
GULNAZ ZARQA KHAN
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
On
July 26, 2011, Gulnaz Zarqa Khan (the “applicant”), a citizen of Pakistan,
filed the present appeal from the Citizenship Judge Philip M. Gaynor’s
decision, under subsection 14(5) of the Citizenship Act, R.S.C. 1985, c.
C-29 (the “Act”). The Citizenship Judge denied the applicant’s application for
citizenship because of her failure to meet the requirements under paragraph
5(1)(e) of the Act, lacking adequate knowledge of Canada and of the
responsibilities and privileges of Canadian citizenship.
[2]
In
his letter notifying the applicant of his decision, pursuant to subsection
14(3) of the Act, the Citizenship Judge concluded that the applicant did not
have an adequate knowledge of Canada, nor of the responsibilities and
privileges of Canadian citizenship, as required by paragraph 5(1)(e) of
the Act. This conclusion was based on the applicant’s poor performance at the
hearing, having only answered nine out of the 20 questions of the citizenship
test correctly. The Citizenship Judge considered 15/20 to be the passing mark.
[3]
Having
failed to satisfy the knowledge requirement under the Act, the Citizenship
Judge went on to consider whether, pursuant to subsection 15(1) of the Act, he
should exercise his discretion under subsections 5(3) and 5(4) of the Act.
However, no evidence of such special circumstances was presented at the
hearing.
[4]
Consequently,
the applicant’s citizenship application was not approved, the applicant being
invited to reapply or appeal the decision.
* * * * * * *
*
[5]
The
applicant first appears to argue that she did not have a fair hearing by reason
of a “tough interview atmosphere”. Absent a request for an adjournment of the
interview before the Citizenship Judge, the alleged nervousness and intimidation
felt by the applicant, in the particular circumstances of this case, do not
amount to procedural unfairness.
[6]
The
other issue raised by the present application is whether the Citizenship Judge’s decision
is unreasonable, although the present case is a citizenship appeal and not a
judicial review (Akan v. Minister of Citizenship and Immigration (1999),
170 F.T.R. 158 at para 9 [Akan] citing Lam v. Minister of Citizenship
and Immigration (1999), 164 F.T.R. 177; Arif v. Minister of Citizenship
and Immigration, 2007 FC 557 at para 6 [Arif]).
[7]
The
Citizenship Judge’s determination with regards to the sufficiency of the
applicant’s knowledge of Canada is essentially a question of fact warranting
great deference, as is also owed to the Citizenship Judge’s decision not to
exercise his discretion under subsection 5(3) or 5(4) of the Act (Arif,
above, at paragraphs 7 and 8; Zahra v. Minister of Citizenship and
Immigration, 2009 FC 444 at para 9). Thus, the issue becomes whether the
Citizenship Judge based his decision on erroneous findings of fact made in a
perverse or capricious manner or without regard to the evidence before him (Arif,
above, at para 9).
[8]
While
this Court may sympathize with the applicant’s circumstances and the many
challenges she has faced, in the words of Justice Pierre Blais, “it remains
that becoming a Canadian citizen is a great privilege and that, in order to
fully exercise the rights and responsibilities associated with citizenship, one
is required to have a basic knowledge of Canada” (Arif, above, at para
27). The applicant obtained 9/20 on her citizenship test, thereby failing to
demonstrate sufficient knowledge and failing to meet the requirements of the
Act. Thus, the Citizenship Judge’s decision was reasonable and the applicant
has not established that the intervention of this Court is justified: mere
assertions of stress or nervousness at the time of the hearing do not allow
this Court to grant a citizenship appeal.
[9]
The
applicant has also failed to prove that the Citizenship Judge erred in refusing
to exercise the discretion granted to him under the Act. As previously stated,
determinations and recommendations made under subsections 5(3) and 5(4) of the
Act are purely discretionary and great deference is owed to the Citizenship
Judge’s decision (Akan, above, at para 11). The latter explained in his
letter to the applicant that there was not sufficient evidence before him to
justify a recommendation under either subsection 5(3) or 5(4) of the Act and
the evidence before the Court today does not establish that such a conclusion
was unreasonable (see Arif at para 22 and Re Koo, [1993] 1 F.C.
286 (T.D.)).
[10]
Rather,
the applicant should consider the other alternative proposed by the Citizenship
Judge in his decision, specifically, that she reapply for citizenship at a
later time, when she has sufficient knowledge of Canada and of the responsibilities and privileges
of Canadian citizenship.
* * * * * * * *
[11]
For
the above reasons, the appeal is dismissed, without costs.
JUDGMENT
The appeal from Citizenship
Judge Philip M. Gaynor’s decision, denying the applicant’s application for
citizenship because of her failure to meet the requirements under paragraph
5(1)(e) of the Citizenship Act, R.S.C. 1985, c. C-29, is
dismissed, without costs.
“Yvon
Pinard”
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1229-11
STYLE OF CAUSE: GULNAZ ZARQA KHAN v. MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF
HEARING: Toronto, Ontario
DATE OF
HEARING: April
24, 2012
REASONS FOR
JUDGMENT
AND JUDGMENT: Pinard J.
DATED: May 24, 2012
APPEARANCES:
Gulnaz Zarqa
Khan THE APPLICANT ON HER OWN BEHALF
Neal Samson FOR
THE RESPONDENT
SOLICITORS
OF RECORD:
THE
APPLICANT ON HER OWN BEHALF
Myles J. Kirvan FOR
THE RESPONDENT
Deputy Attorney
General of Canada
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