Date: 20090501
Docket: T-204-08
Citation: 2009 FC 444
Ottawa, Ontario, May 1, 2009
PRESENT: The Honourable Madam Justice Simpson
BETWEEN:
ATIA ZAHRA
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Atia Zahra is a
self-represented applicant (the Applicant). She describes her application as
one for judicial review but, in fact, it is an appeal under subsection 14(5) of
the Citizenship Act, R.S. 1985, c. C-29 (the Act). The appeal is from a
decision of a Citizenship Judge dated December 10, 2007 (the Decision) in which
he found that Ms. Zahra failed to meet the knowledge requirement under
section 5(1)(e) of the Act and declined to recommend the exercise of discretion
to the Minister of Citizenship and Immigration under sections 15(1), 5(3) and
5(4) of the Act. He therefore denied her application for Canadian citizenship.
BACKGROUND
[2]
The Applicant is a 32 year-old citizen of Pakistan. She immigrated to Canada on
April 2, 2004 with her son. Her
husband and three young children are all Canadian citizens.
[3]
On April 3, 2007, Ms. Zahra
applied for Canadian Citizenship. She received the instructional
material. On July 5, 2007,
Ms. Zahra wrote the citizenship test and correctly answered only 4 of 20
multiple choice questions. In order to pass the test, applicants must answer
at least 60%, or 12 questions, correctly and correctly answer all questions
relating to the electoral system. Although Ms. Zahra failed the knowledge
requirement of the citizenship test, she met all the other requirements for
citizenship.
[4]
On November
27, 2007, Ms. Zahra
appeared before the Citizenship Judge for an interview. At the time of the
hearing, Ms. Zahra was five months pregnant with her third child and was accompanied
by her husband and children. Ms. Zahra’s husband acted as her representative
and interpreter. Upon questioning, she became nervous and uncomfortable. Due
to her upset mental and physical condition, she had trouble speaking both in
English and Punjabi, her native language.
[5]
Ms. Zahra’s husband
pointed out his wife’s inability to speak and the Citizenship Judge recommended
that she take a break for half an hour. After the break, her condition
returned.
[6]
Ms. Zahra’s husband
told the Citizenship Judge that she could not answer the questions properly due
to her condition and asked what other options she had. The Citizenship Judge
informed him that she was would receive information in a letter in the mail in
about four weeks. That information was the Citizenship Judge’s Decision.
THE
ISSUES
[7]
Ms. Zahra takes no
issue with the Citizenship Judge’s determination that she failed to meet the
knowledge requirement under subsection 5(1)(e) of the Act. However, she does
take issue with his refusal to exercise his discretion in favour of making a
recommendation based on compassionate grounds under section 5(3) and/or special
and unusual hardship under section 5(4) of the Act (a Recommendation).
[8]
The Respondent
submitted that there are two issues:
- Did the
Applicant meet her onus to satisfy the Citizenship Judge that she
warranted a Recommendation?
- Is a failure
to make a Recommendation under subsection 15(1) considered a “decision”
under subsection 14(2) of the Act, which gives the Federal Court’s
appellate jurisdiction?
THE
STANDARD OF REVIEW
[9]
In Arif v. Canada (Minister of Citizenship and
Immigration), 2007 FC 557, at paragraphs 7 to 8, Justice Blais provided that patent
unreasonableness was the proper standard of review for a citizenship judge’s decision
not to recommend that the Minister exercise discretion pursuant to subsections
5(3) and 5(4) of the Act, as this is a discretionary decision. In light of the decision in Dunsmuir
v. New Brunswick, 2008 SCC 9, which eliminated the
standard of patent
unreasonableness, I conclude
that the proper standard of review should be reasonableness.
ANALYSIS
1) Did the Citizenship Judge commit a reviewable error when
he concluded that there were no special circumstances that would justify a
Recommendation to the Minister to waive the knowledge requirement or otherwise
grant citizenship to the Applicant?
[10]
At the hearing of the
appeal, Ms. Zahra’s husband submitted that when he told the Citizenship Judge
about her condition and asked what other options there were if she failed the
interview, the Citizenship Judge ought to have told them about the option to
ask to be considered on compassionate grounds. He submits that, in asking
about other options, he was essentially seeking that she be considered on
compassionate grounds.
[11]
Ms. Zahra’s husband
argued that when his wife developed symptoms of severe stress at the interview
and they asked about other options, the Citizenship Judge should have answered
comprehensively and informed them that they could request a waiver of the
knowledge requirement based on compassionate grounds.
[12]
Ms. Zahra only
experienced this level of stress on the date of the hearing, She had no
history of panic attacks and there was no medical evidence about any problems.
Ms. Zahra submits that, because the Citizenship Judge observed her condition
and recommended that she take a break, he knew that she was experiencing
circumstances that prevented her from answering questions.
[13]
However,
self-represented applicants have an obligation to know and understand the law.
Accordingly, it was Ms. Zahra’s responsibility to know that, if necessary, she
could ask for an adjournment of the interview and that she could present
evidence to support a request for a Recommendation.
[14]
Upon being questioned
at the hearing of the appeal, Ms. Zahra and her husband confirmed that she had
no history of panic attacks or other disorders and that she was having a
healthy third pregnancy. Ms.
Zahra made no mention of any facts that could have been presented before the
Citizenship Judge explaining her inability to retain information or answer
questions. She also offered that the reason she had only answered four of the
twenty questions correctly on the written test was that she had not adequately
studied the material.
[15]
Ms. Zahra appeared
before the Citizenship Judge as a healthy pregnant woman who had badly failed
the knowledge requirement of the written citizenship test. She became nervous
during the interview when she again failed to correctly answer questions.
There was no evidence of a medical problem which might have justified a Recommendation
and no request for an adjournment. In these circumstances, the Citizenship
Judge had no duty to mention the fact that a Recommendation could be made in
appropriate cases.
[16]
I have therefore
concluded that the
Citizenship Judge’s failure to mention the possibility of a Recommendation was
reasonable in the circumstances of this case.
2) Does the Federal Court have
appellate jurisdiction in this matter?
[17]
Subsection 14(2) of the Act reads:
|
Forthwith
after making a determination under subsection (1) in respect of an
application referred to therein but subject to section 15, the citizenship
judge shall approve or not approve the application in accordance with his
determination, notify the Minister accordingly and provide the Minister with
the reasons therefor.
|
Aussitôt
après avoir statué sur la demande visée au paragraphe (1), le juge de la
citoyenneté, sous réserve de l’article 15, approuve ou rejette la demande
selon qu’il conclut ou non à la conformité de celle-ci et transmet sa
décision motivée au ministre.
|
[18]
In my
view, this provision makes it clear that, as part of his or her decision-making
process, a
citizenship judge is to turn his or her mind to the possibility of a Recommendation.
Further, the Decision in this case shows that the Citizenship Judge made a
decision on the issue of a Recommendation. For these reasons, I have concluded
that the Court has jurisdiction over this matter.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
for the reasons given concerning Issue 1, this appeal is hereby dismissed.
“Sandra
J. Simpson”
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