Date: 20090729
Docket: T-1317-08
Citation: 2009 FC 775
Ottawa, Ontario, July 29,
2009
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
ANDRA
AMOAH
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an appeal pursuant to section 14(5) of the Citizenship Act, R.S.,
1985, c. C-29 of a decision by a Citizenship Judge, dated June 24, 2008, denying
the applicant’s application for Canadian citizenship on the basis that she did
not have adequate knowledge of Canada and the responsibilities and privileges of
citizenship, as required by subsection 5(1)(e) of the Citizenship Act.
The applicant, who is self-represented and appeared before the Court with an interpreter,
submits that the Citizenship Judge should have exercised her discretion under
subsections 5(3) and (4) of the Act to exempt the applicant from the
knowledge requirements.
FACTS
[2]
The
applicant is a citizen of Ghana. She arrived in Canada and became a
permanent resident in 1991. The applicant’s first application for citizenship
was refused in 2002 on the basis that she did not meet the knowledge
requirements in subsection 5(1)(e) of the Citizenship Act.
[3]
The
applicant submitted her second citizenship application, which is the subject of
this appeal, in January 2007. She indicated on her application form that she
would be accompanied by an interpreter at her citizenship test. The form did
not, however, indicate that the applicant could not read or write English, and
the section on the form to be filled out by any person or organization that
assisted in completing the application was left blank. The applicant signed
the form indicating that she understood its contents.
[4]
The
applicant appeared for her citizenship test on November 9, 2007 as instructed.
The applicant was not accompanied by an interpreter. She informed the Officer
that she could not read English. The Officer made a note of this on the
applicant’s application form and instructed the applicant to complete the
test. The applicant answered some questions correctly but failed to answer one
or more of the mandatory questions and therefore failed the test.
[5]
The
applicant was then instructed to attend an interview with the Citizenship Judge
on June 12, 2008. At this interview, the citizenship test was administered
orally and the applicant was given an opportunity to respond orally. The
Citizenship Judge reserved her decision and on June 24, 2008, denied the
application on the basis that the applicant did not meet the mandatory
knowledge requirements of subsection 5(1)(e).
Decision under review
[6]
In
denying the applicant’s citizenship application, the Citizenship Judge stated:
…At the hearing, you were unable to
answer correctly questions in respect to:
-
the voting
procedures related to elections
-
the
responsibilities of citizenship
-
the
history and geography of Canada
According to section 15 of the
Citizenship Regulations, which prescribes the criteria for determining whether
or not an applicant has an adequate knowledge of Canada and of the
responsibilities and privileges of citizenship, you must be able to correctly
answer questions prepared by the Minister based on the information contained in
self-instructional material approved by the Minister and presented to
applicants for the grant of citizenship.
[7]
The
Citizenship Judge declined to make a recommendation to the Minister that the
applicant should be exempted from the knowledge requirement under the
discretionary provisions of the Citizenship Act:
Pursuant to subsection 15(1) of the
Citizenship Act, I have considered whether or not to make a recommendation for
an exercise of discretion under subsection 5(3) and 5(4) of the Act.
Subsection (3) of the Act confers discretion to the Minister to, among other
things, waive on compassionate grounds, in the case of any person, the
knowledge requirements you failed to meet. As to subsection 5(4) of the Act,
it empowers the Governor in Council to direct the Minister to grant citizenship
to any person in cases of special and unusual hardship or to reward services of
an exceptional value to Canada.
There 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). Pursuant to the
provisions of subsection 14(3) of the Citizenship Act, you are, therefore,
advised that, for the above reasons, your application for citizenship is not
approved.
[8]
The
Citizenship Judge therefore denied the citizenship application. The Notice to
the Minister of the Decision of the Citizenship Judge indicates that the
applicant had not satisfied subsection 5(1)(e) of the Act. The form
indicates that the applicant did satisfy the other requirements of section 5,
including subsection 5(1)(d), i.e. adequate knowledge of one of the official
languages of Canada.
RELEVANT LEGISLATION
[9]
Section
5(1) of the Citizenship Act provides:
Grant of citizenship
5. (1)
The Minister shall grant citizenship to any person who
(a) makes application for
citizenship;
(b) is eighteen years of age or
over;
(c) is a permanent resident
within the meaning of subsection 2(1) of the Immigration and Refugee
Protection Act, and has, within the four years immediately preceding the
date of his or her application, accumulated at least three years of residence
in Canada calculated in the following manner:
(i) for every day during which the person was resident
in Canada before his lawful admission to Canada for permanent residence the
person shall be deemed to have accumulated one-half of a day of residence,
and
(ii) for every day during which the person was resident
in Canada after his lawful admission to Canada for permanent residence the
person shall be deemed to have accumulated one day of residence;
(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; and
(f) is not under a removal
order and is not the subject of a declaration by the Governor in Council made
pursuant to section 20.
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Attribution de la citoyenneté
5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la
fois :
a) en fait la demande;
b) est âgée d’au moins dix-huit ans;
c) est un résident permanent au sens du paragraphe 2(1) de la Loi
sur l’immigration et la protection des réfugiés et a, dans les quatre ans
qui ont précédé la date de sa demande, résidé au Canada pendant au moins
trois ans en tout, la durée de sa résidence étant calculée de la manière
suivante :
(i) un demi-jour pour chaque jour de
résidence au Canada avant son admission à titre de résident permanent,
(ii) un jour pour chaque jour de
résidence au Canada après son admission à titre de résident permanent;
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;
f) n’est pas sous le coup d’une mesure de renvoi et n’est pas visée
par une déclaration du gouverneur en conseil faite en application de
l’article 20.
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[10]
Sections
5(3) and 5(4) of the Act provide:
Waiver by Minister on compassionate grounds
(3) The Minister may, in
his discretion, waive on compassionate grounds,
(a) in the case of any person,
the requirements of paragraph (1)(d) or (e);
(b) in the case of a minor, the
requirement respecting age set out in paragraph (1)(b),
the requirement respecting length of residence in Canada set out in paragraph
(1)(c) or the requirement to take the oath of
citizenship; and
(c) in the case of any person
who is prevented from understanding the significance of taking the oath of
citizenship by reason of a mental disability, the requirement to take the
oath.
Special
cases
(4) In order to alleviate
cases of special and unusual hardship or to reward services of an exceptional
value to Canada, and notwithstanding any other provision of this Act, the
Governor in Council may, in his discretion, direct the Minister to grant
citizenship to any person and, where such a direction is made, the Minister
shall forthwith grant citizenship to the person named in the direction.
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Dispenses
(3) Pour des raisons d’ordre humanitaire, le ministre a le pouvoir
discrétionnaire d’exempter :
a) dans tous les cas, des conditions prévues aux alinéas (1)d) ou e);
b) dans le cas d’un mineur, des conditions relatives soit à l’âge
ou à la durée de résidence au Canada respectivement énoncées aux alinéas (1)b) et c), soit à la
prestation du serment de citoyenneté;
c) dans le cas d’une personne incapable de saisir la portée du
serment de citoyenneté en raison d’une déficience mentale, de l’exigence de
prêter ce serment.
Cas particuliers
(4) Afin de remédier à une situation particulière et inhabituelle de
détresse ou de récompenser des services exceptionnels rendus au Canada, le
gouverneur en conseil a le pouvoir discrétionnaire, malgré les autres
dispositions de la présente loi, d’ordonner au ministre d’attribuer la
citoyenneté à toute personne qu’il désigne; le ministre procède alors sans
délai à l’attribution.
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[11]
Section
15(1) of the Act provides that a Citizenship Judge shall consider whether
a recommendation to the Minister to exercise his discretion under subsection
5(3) or (4) is appropriate before refusing an application:
Recommendation re use of discretion
15. (1)
Where a citizenship judge is unable to approve an application under
subsection 14(2), the judge shall, before deciding not to approve it,
consider whether or not to recommend an exercise of discretion under
subsection 5(3) or (4) or subsection 9(2) as the circumstances may require.
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Exercice du pouvoir discrétionnaire
15. (1) Avant de rendre une décision de rejet, le juge de la
citoyenneté examine s’il y a lieu de recommander l’exercice du pouvoir discrétionnaire
prévu aux paragraphes 5(3) ou (4) ou 9(2), selon le cas.
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[12]
Section
15 of the Citizenship Regulations, SOR/93-246 sets out the criteria for
determining whether an applicant meets the knowledge requirement of section
5(1)(e) of the Citizenship Act:
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).
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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).
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[13]
Section
14(5) and (6) of the Citizenship Act provides that an applicant may
appeal the decision of a Citizenship Judge to this Court, and that the decision
of this Court is final:
Appeal
14. (5) The Minister or
the applicant may appeal to the Court from the decision of the citizenship
judge under subsection (2) by filing a notice of appeal in the Registry of the
Court within sixty days after the day on which
(a) the citizenship judge approved the application
under subsection (2); or
(b) notice was mailed or otherwise given under
subsection (3) with respect to the application.
Decision final
(6) A decision of
the Court pursuant to an appeal made under subsection (5) is, subject to
section 20, final and, notwithstanding any other Act of Parliament, no appeal
lies therefrom.
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Appel
14. (5) Le
ministre et le demandeur peuvent interjeter appel de la décision du juge de
la citoyenneté en déposant un avis d’appel au greffe de la Cour dans les
soixante jours suivant la date, selon le cas :
a) de
l’approbation de la demande;
b) de la
communication, par courrier ou tout autre moyen, de la décision de rejet.
Caractère définitif de la décision
(6) La
décision de la Cour rendue sur l’appel prévu au paragraphe (5) est, sous
réserve de l’article 20, définitive et, par dérogation à toute autre loi
fédérale, non susceptible d’appel.
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STANDARD OF
REVIEW
[14]
This
Court has held that the standard of review for the decision of a citizenship judge
is reasonableness: Zhao v. Canada (MCI), 2006 FC 1536, 306 F.T.R. 206,
per Russell J. at para. 45; Chen v. Canada (MCI), 2006 FC 85,
145 A.C.W.S. (3d) 770, per Phelan J. at para. 6. Prior to Dunsmuir v. New
Brunswick, 2008 SCC 9, discretionary decisions under subsection 5(3)
and 5(4) were also subject to a patent unreasonableness standard: Arif v.
Canada (MCI), 2007 FC 557, 157 A.C.W.S. (3d) 557, per Blais J. at para. 8.
In Dunsmuir, the Supreme Court eliminated the patent unreasonableness
standard of review. Post-Dunsmuir, the appropriate standard of review
for all decisions of a citizenship judge is reasonableness simpliciter: Canada
(MCI) v. Aratsu, 2008 FC 1222, per Russell J. at paras. 16-20.
[15]
In
reviewing the Citizenship Judge’s decision on a reasonableness standard, the
Court will consider "the existence of justification, transparency and
intelligibility within the decision-making process” and “whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law” (Dunsmuir at para. 47). The Court will
only intervene if the decision falls outside the "range of possible,
acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir at paragraph 47).
ISSUES
[16]
The
issue raised by the applicant in this appeal is whether the Citizenship Judge
failed to consider her educational background in deciding not to recommend the applicant
for a discretionary exemption under ss. 5(3) or (4) of the Citizenship Act.
ANALYSIS
[17]
In
her affidavit, the applicant states that she cannot read or write English, and
that she speaks English “with some difficulty”. The applicant states that she
did not have any formal education in Ghana. The applicant submits
that the Citizenship Judge should have taken these factors into account in
considering whether an exemption under subsections 5(3) or (4) was appropriate.
[18]
Subsection
5(3) allows a Citizenship Judge to recommend that an applicant be exempted, on
compassionate grounds, from the knowledge requirement of subsection 5(1)(e), or
the language requirement of subsection 5(1)(d). The relevant issue raised by
the applicant is whether she should be exempted from the knowledge requirement
on compassionate grounds. The reason given by the applicant as the basis for
the request is her lack of English language skills. However, the applicant was
found by the Citizenship Judge to have adequate language skills satisfying the
language requirement of subsection 5(1)(d). The language assessment is based
on the test and/or oral interview. In this case, the Citizenship Judge, who
found the applicant’s language skills adequate, had conducted an oral interview
with the candidate.
[19]
Under
these circumstances, it was reasonable for the Citizenship Judge to conclude
that an exemption to the knowledge requirement was not warranted on the basis
of the applicant’s poor English language skills. The applicant had been deemed
to have sufficient language skills such that she met the language requirement.
The Citizenship Judge, in conducting her oral interview with the applicant, was
able to assess the applicant’s comprehension and language skills.
Judge found no evidence
of special circumstances for exemption
[20]
Subsection
5(4) provides that an exemption to the knowledge requirement may be granted in
cases of special or unusual hardship. The Citizenship Judge stated in her
decision that no evidence of special circumstances had been presented at the
hearing. The applicant has not made any submissions before this Court as to
any evidence that was before the Citizenship Judge, or as to any special or
unusual hardship that would warrant an exemption under subsection 5(4). The
applicant’s English language skills were assessed by the Citizenship Judge and
found to be adequate, and therefore do not constitute special or unusual
hardship. The applicant’s lack of formal education likewise should not have
precluded her from completing an oral exam. If the applicant’s lack of formal
education has created special learning difficulties for the applicant, aside
from poor language skills, she has not made any submission to this effect. Accordingly,
it was reasonable for the Citizenship Judge to conclude that no special or
unusual hardship existed as no evidence was put before her of any such
hardship.
[21]
For
these reasons, this appeal is dismissed.
[22]
The
applicant can re-apply for Canadian citizenship, and either learn the required
basic knowledge about Canada, the voting procedures related to elections, and
the responsibility of citizenship or seek exemption from these requirements on
compassionate grounds. Such compassionate grounds were explained to the Court
by the applicant at the hearing, through the aid of an interpreter, and they
include:
a.
the
applicant is illiterate in English, i.e. she cannot read or write English;
b.
the
applicant speaks the English language with difficulty;
c.
the
applicant has twice failed the citizenship test after studying with the
assistance of her children. She does not have the ability to retain the
information; and
d.
the
applicant has had no education either in her country of origin, Ghana or in Canada.
[23]
The
applicant also stressed that she cannot afford the $200 application fee to
apply for citizenship a third time, and asked the respondent for relief. This
Court does not Rule on compassionate grounds for an applicant seeking an
exemption from the legal requirements for citizenship. That is the prerogative
of the Citizenship Judge.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
This appeal is dismissed.
“Michael
A. Kelen”