Date: 20090211
Docket: T-1102-08
Citation: 2009 FC 132
Ottawa, Ontario,
February 11, 2009
PRESENT: The Honourable Mr.
Justice Orville Frenette
BETWEEN:
Kaddour
LABIOUI
Fatna DAOUDI
Nour El Houda LABIOUI
Younes LABIOUI
Najlaa LABIOUI
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This is an appeal under subsection 14(5) of the Citizenship
Act, R.S.C. 1985, c. C‑29
(the Act), from five decisions made on May 27, 2008, by a
citizenship judge, denying the applicants' applications for Canadian
citizenship because the applicants did not meet the requirements of
paragraphs 5(1)(c) and (e) of the Act.
Facts
[2]
The
applicants are Moroccan citizens. On the day they applied for citizenship, the
father had one minor child, whom he included in his application, and four
other adult children. The Labioui family arrived in Canada on
March 22, 2001.
[3]
On
October 25, 2004, the applicants all applied for Canadian
citizenship.
[4]
On
January 30, 2008, the applicants were summoned to appear before the
citizenship judge. They were notified that the judge needed more information to
make his decision and assess whether their applications met all the prescribed
conditions. On February 13, 2008, the applicants each appeared before
the judge in turn.
[5]
The
five decisions dated May 27, 2008, found that the applicants had
not met the requirements established by paragraph 5(1)(e) of the
Act with regard to knowledge of Canada. Specifically, the
applicants were unable to correctly answer questions 45 and 47 and, in one
case, 39, 45 and 47.
Impugned decisions
[6]
In
five similar decisions, the citizenship judge found that the applicants had not
met the requirements of paragraph 5(1)(e) of the Act because they
did not have an adequate knowledge of Canada and of the
responsibilities and privileges of citizenship.
Issue
[7]
Did the citizenship judge err in finding that the applicants did
not have an adequate knowledge of Canada and of the
responsibilities and privileges of Canadian citizenship?
Legislation
[8]
Paragraph 5(1)(e)
of the Act reads as follows:
|
5. (1) The Minister
shall grant citizenship to any person who
. . .
(e) has an adequate knowledge of Canada and of
the responsibilities and privileges of citizenship; and
|
5. (1) Le ministre
attribue la citoyenneté à toute personne qui, à la fois:
[…]
e) a une connaissance suffisante du
Canada et des responsabilités et avantages conférés par la citoyenneté;
|
[9]
Additional
information is found in section 15 of the Citizenship Regulations,
1993, SOR/93‑246:
|
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).
|
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).
|
Analysis
A. Standard
of review
[10]
The
applicable standard of review is reasonableness (see Dunsmuir v.
New Brunswick, [2008] 1 S.C.R. 190; Haddad v. Minister of
Citizenship and Immigration, 2003 FCT 692; Wang v. Minister of
Citizenship and Immigration, 2008 FC 391; Arif v. Minister of
Citizenship and Immigration, 2007 FC 557). It has repeatedly been held
that the citizenship judge's assessment is a question of fact that should be
afforded a high level of deference.
B. Is
the decision reasonable?
[11]
Based on a careful reading of the reasons for decision, I find that,
during the interviews on February 13, 2008, the citizenship judge
asked:
·
15
questions of Kaddour Labioui, 6 of which were answered correctly. He gave
incorrect answers to questions 39, 45 and 47, which the judge identified
as mandatory in assessing his knowledge of Canada and of the
responsibilities and privileges of citizenship;
·
13 questions
of Nour El Houda Labioui, 7 of which were answered correctly.
She gave incorrect answers to questions 45 and 47, which the judge
identified as mandatory in assessing her knowledge of Canada and of the
responsibilities and privileges of citizenship;
·
14 questions
of Fatna Daoudi, 5 of which were answered correctly. She gave incorrect
answers to questions 45 and 47, which the judge identified as mandatory in
assessing her knowledge of Canada and of the responsibilities and privileges of citizenship;
·
13 questions
of Younes Labioui, 9 of which were answered correctly. He gave incorrect
answers to questions 45 and 47, which the judge identified as mandatory in
assessing his knowledge of Canada and of the responsibilities and privileges of citizenship;
·
15 questions
of Najlaa Labioui, 6 of which were answered correctly. She gave incorrect
answers to questions 45 and 47, which the judge identified as mandatory in
assessing her knowledge of Canada and of the responsibilities and privileges of citizenship.
[12]
In El Fihri v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1106, 147 A.C.W.S. (3d)
745, the applicant answered two mandatory questions incorrectly during her
hearing. As a result, her citizenship application was denied by Mr. Justice
Pierre Blais, who noted the following:
[16] It is therefore clear that the
applicant was not able to correctly answer two mandatory questions asked by the
Judge. Even though the applicant alleges that she should have been given the
test in writing, nothing in the Act or in the Regulations would indicate that
that is the case. Quite to the contrary, Hussain v. Canada (Minister of Citizenship and
Immigration),
[1999] F.C.J. No. 1130, Lemieux J. states:
From the material before me,
it is clear that a citizenship judge's questions (when the written test option
is not given) are based on the information contained in self‑instructional
material approved by the Minister and presented to applicants for grant of
citizenship. Applicants for Canadian citizenship who are to be interviewed
receive notice of the purpose of the interview so that they can review the
self-instructional material prescribed by the Minister in preparation for the
interview. On the record available to me, I am satisfied the applicant did not
receive the standard notice letter; the February 2, 1998 letter,
which he did receive, did not identify the purpose of the interview. I also
find that the applicant had reasonable grounds to think the
February 20, 1998 interview would be about his absences.
[17] In
this case, the applicant received all of the documents necessary to prepare for
the interview and the Judge even indicates this in the second page of his
decision. Further, in a letter sent to the applicant on
July 28, 2004, it stated:
[TRANSLATION]
The Citizenship Judge
requires more information to be able to make a decision on your citizenship
application. You are therefore summoned to an interview so that the Judge may
determine if your application meets all of the prescribed conditions. The Judge
may ask you questions in order to determine if you have sufficient knowledge of
French or English and sufficient knowledge of Canada.
[13]
Moreover, in Wang v. Canada
(Minister of Citizenship and Immigration), 2008 FC 391,
166 A.C.W.S. (3d) 219, Mr. Justice James Russell stated the
following:
[22] Like
section 5 of the Act, the criteria listed in paragraph 15 of the
Regulations are cumulative. Thus, a person must demonstrate that they have a
general understanding of each topic listed in paragraphs 15(a) and (b) and
one of the topics, as selected by the Minister, in paragraph 15(c). In my
view, the effect of this is that a failure to correctly answer questions on the
topics covered in any of the three areas results in a fail, even if the
Applicant has demonstrated an adequate knowledge in other areas.
[14]
In light of these facts, and given the applicable standard of
review, I am of the opinion that the citizenship judge's decision that the
applicants did not have an adequate knowledge of Canada
was reasonable.
Applicants'
submissions
[15]
The
applicants supported their memorandum with affidavits in which they stated that
they had correctly answered the questions asked by the citizenship judge.
[16]
At
this stage, this Court cannot accept this type of evidence to circumvent the
citizenship judge's decision.
[17]
The
applicants allege that their fundamental rights were violated because they were
not given the same opportunity as other candidates to answer multiple‑choice
questions. This argument cannot be accepted, since the judge, under the Act,
had the choice and discretion to question the applicants directly on their
general knowledge of Canada (Wang, supra, at paragraph 22).
Conclusion
[18]
For
the above reasons, the applicants' appeals cannot be allowed.
Costs
[19]
Counsel
for the respondent made a motion to the Court to vary the relief sought in the
respondent’s memorandum in order to seek costs against the applicants if their
appeals were dismissed. The applicants contested the motion.
[20]
In
the specific circumstances of this case, I do not consider it fair to award
such costs against the applicants.
JUDGMENT
The appeal
under subsection 14(5) of the Citizenship Act, R.S.C. 1985,
c. C‑29, from five decisions made by a citizenship judge on
May 27, 2008, is dismissed without costs.
"Orville
Frenette"
Certified true translation
Susan Deichert, Reviser
Email this Content