Date: 20080327
Docket: T-1041-07
Citation: 2008 FC 391
Ottawa, Ontario, this 27th day of March, 2008
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
SHOU
HONG VINCENT WANG
Applicant
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 [Act], from the decision of a Citizenship Judge (Decision), rendered
April 5, 2002, wherein Mr. Wang’s application for Canadian citizenship was
refused on the grounds that he did not have an adequate knowledge of Canada and
of the responsibilities and privileges of citizenship, as required by
subsection 5(1)(e) of the Act.
[2]
The
Citizenship Judge also considered whether to make a recommendation for an
exercise of ministerial discretion under subsections 5(3) and 5(4) of the Act,
but concluded that there was no evidence of special circumstances presented at
the hearing that would justify making such a recommendation.
Background
[3]
Mr.
Wang is a citizen of Taiwan. He obtained permanent resident status in
Canada on February 5, 2000 and submitted his application for citizenship on
April 11, 2004. Mr. Wang was scheduled twice to write the citizenship test. He
missed the test both times (once due to an error on his part, and the second
time because of no fault of his own). Consequently, Mr. Wang was scheduled for
a hearing.
[4]
Mr.
Wang attended the interview and was asked a number of questions for the purpose
of testing his knowledge of Canada. He states in his affidavit that he
answered all of the questions correctly. However, he admits that when the
Citizenship Judge questioned him about who is eligible to vote in a federal
election, he failed to mention one of the three requirements for voting. Mr. Wang
was informed of the Citizenship Judge’s refusal of his application for
citizenship by letter dated April 12, 2007.
Issues
[5]
The
issues raised in this appeal are as follows:
1.
Did
the Citizenship Judge err in finding that the Applicant did not have adequate
knowledge of Canada and of the responsibilities and privileges of citizenship?
2.
Did
the Citizenship Judge breach the rules of fairness by failing to provide
sufficient reasons for her Decision?
Reasons
1.
Did the Citizenship Judge err in finding that the Applicant
did not have adequate knowledge of Canada and of the
responsibilities and privileges of citizenship?
[6]
There
has been general consensus in this Court that the applicable standard of review
in citizenship appeals where the issue is whether the residency requirement has
been met (which is a question of mixed fact and law) is reasonableness simpliciter
(Zhao v. Canada (Minister of Citizenship and Immigration), 2006 FC 1536,
Canada (Minister of Citizenship and
Immigration) v. Chang,
2003 FC 1472; Chen v. Canada (Minister of Citizenship and
Immigration), 2006 FC 85). However, this Court has
recognized on numerous occasions that, as in the present case, a Citizenship
Judge’s determination of whether an applicant has sufficient knowledge of
Canada is a purely factual question for which greater deference should be shown
by the Court (Arif v. Canada (Minister of Citizenship and Immigration),
2007 FC 557; Abdollahi-Ghane v. Canada (Attorney General), 259 F.T.R. 9;
Huang v. Canada (Minister of Citizenship and Immigration), 2005 FC 861, 47
Imm. L.R. (3d) 259).
[7]
The
patent unreasonableness standard was recently abolished by the Supreme Court of
Canada in Dunsmuir v. New Brunswick, 2008 SCC 9. Thus, the
applicable standard of review is reasonableness. However, even if the patent
unreasonableness standard had been applied, my findings on this issue as set
out below would be the same.
[8]
Section
5(1) of the Act sets out the necessary criteria for obtaining citizenship.
Among other things, section 5(1) requires that an applicant have “an adequate
knowledge of Canada and of the
responsibilities and privileges of citizenship” (Citizenship Act, s. 5(1)(e)).
Section 15 of the Citizenship Regulations, S.O.R./93-246 stipulates the
criteria used for assessing whether a person has the requisite knowledge to
satisfy section 5(1)(e) of the Act:
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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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[9]
The
questions in sections 15 (a) and (b) are mandatory. To successfully complete
the assessment, an applicant must answer these questions correctly. It is clear
from the Citizenship Judge’s reasons that the Applicant was unable to answer
the mandatory question regarding who can vote in a federal election. Mr. Wang
admits that he did not answer this question correctly.
[10]
However,
Mr. Wang submits that the Citizenship Judge erred by assessing his knowledge of
Canada at an
incorrect and unreasonably high standard. He alleges that he answered “all of
the Judge’s questions correctly, with the exception of one part of a three part
question.” According to Mr. Wang, this level of knowledge should have been
sufficient to convince the Judge, on a balance of probabilities, that he had an
adequate knowledge of Canada and of the responsibilities and privileges of
citizenship.
[11]
The
Applicant further argues that the Judge “placed too much evidence on one
question, while ignoring all the other evidence of my knowledge of Canada and my
strong establishment in Canada.”
[12]
Because
the Decision only gives one ground for denying the application i.e. the
Applicant’s failure to answer the mandatory question regarding who can vote in
a federal election on the basis of the information contained in the
self-instructional material, this Application must stand or fall on the issue
of whether the Citizenship Judge was in a position to reject the application on
that sole ground and without reference to any other question or any other answers
that the Applicant gave to those questions.
[13]
The
evidence before me is that the Applicant only had difficulty in answering one part
of one question posed by the Judge. So was the Judge entitled to rely upon this
deficiency and ignore all of the other answers the Applicant gave concerning
his knowledge of Canada?
[14]
In
his written argument, the Applicant says the Judge ignored “all of the other
relevant factors which demonstrate that Canada is the place where the Applicant
has centralized his mode of existence,” and the Act only requires that the
Applicant have “an adequate knowledge of Canada and of the responsibilities and
privileges of citizenship” so that the Judge set “an incorrect and unreasonably
high standard” on the knowledge issue. The Applicant argues that the Act
requires an “adequate knowledge” and not a “perfect knowledge.”
[15]
The
Applicant adduces no authority for the proposition that residency and
establishment factors can or should be used by a citizenship judge to offset
any deficiencies that are detected on the knowledge side of the application. In
the absence of any such authority from either the Act or the jurisprudence, the
Applicant has not satisfied me that the Judge made a reviewable error from this
perspective.
[16]
But
the Applicant also argues that the Judge required “perfect knowledge” and the
Act only requires “adequate knowledge.”
[17]
To
begin with, I believe this assertion is wrong on the facts. A requirement that
the Applicant regurgitate from self-instructional material that the ability to
vote in Canada requires three basic conditions, does not impose a requirement
that the Applicant have a perfect knowledge of Canada and of the
responsibilities and privileges of citizenship. The questions are set by the
Minister with a view to ascertaining “adequacy,” not perfection. What the
Applicant is really complaining about is that he was required to mention all
three points from the self-instructional material.
[18]
I
cannot say that, on the basis of the material and the arguments that the Applicant
has placed before the Court on this point, that the Decision was unreasonable from
this perspective.
[19]
The
Applicant says:
As noted above, the Applicant was able to
answer all of the Judge’s questions correctly, with the exception of one part
of a three part question. It is submitted that this level of knowledge should
have been sufficient to convince the Judge, on a balance of probabilities, that
the Applicant had an adequate knowledge of Canada and the responsibilities and
privileges of citizenship.
[20]
Justice
Gauthier in Haddard v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 692 at paragraph 12 had the
following to say on point:
Parliament provided that each and every
condition set out in section 5 of the Act must be met before the privilege [of
Canadian citizenship] is granted, unless the requirements are waived on
compassionate grounds, or because of special and unusual hardship, or to reward
services of an exceptional value.
[21]
Section
5(1)(e) of the Act requires that a person have an “adequate knowledge of
Canada and of the responsibilities and privileges of citizenship.” The Act does
not define “adequate knowledge.” Instead, it authorizes the Governor in Council
to make regulations that set out the criteria used to determine whether a person
has an adequate knowledge of the responsibilities and privileges of
citizenship:
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27. The Governor in Council may make regulations
[…]
(d) providing for various criteria that may be applied to
determine whether a person
(i) has an adequate knowledge of one of the official languages of Canada,
(ii) has an adequate knowledge of Canada and of the responsibilities and
privileges of citizenship, or
(iii) has a substantial connection with Canada;
|
27. Le gouverneur en conseil peut, par règlement :
[…]
d) établir les divers critères permettant de déterminer :
(i) la connaissance suffisante de l’une des langues
officielles au Canada,
(ii) la connaissance suffisante du Canada et des
responsabilités et avantages attachés à la citoyenneté,
(iii) l’existence de liens manifestes avec le Canada;
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[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.
[23]
The
Applicant argues that the Citizenship Judge should have found that he had an
adequate knowledge given that he was able to answer all of the Judge’s
questions correctly, with the exception of one part of a three part question.
However, the one part of a three part question he answered incorrectly was a
mandatory question that he was required to answer correctly in order to satisfy
paragraph 15(a). In my view, the Citizenship Judge’s assessment that the
Applicant’s answer was not correct was not unreasonable. The Citizenship Judge
took the position that the answer provided must be either complete or
incomplete and chose not to accept a partial answer. The Citizenship Judge, in
my view, is in the best position to determine whether the Applicant correctly
answered the question. Therefore, the application on this ground must fail.
2.
Did the Citizenship Judge breach the rules of fairness by
failing to provide sufficient reasons for her decision?
[24]
The
Applicant submits that the Citizenship Judge’s reasons are inadequate because
they are devoid of crucial elements prescribed in the Department’s Manual,
including a discussion of the evidentiary and factual findings, an analysis of
the facts, as well as deductions drawn from the analysis. The Applicant argues that
the Citizenship Judge merely provided an overview of the legislation and a
general statement about the topic about which he felt the Applicant had
insufficient knowledge. He notes that the Citizenship Judge provided no
information as to the questions that were posed to the Applicant or the
Applicant’s score on the oral examination.
[25]
The
issue of whether reasons are adequate is an issue of procedural fairness
reviewable on a standard of correctness (Andryanov v. Canada (Minister of
Citizenship and Immigration) 2007 FC 186 at para. 15; Jang v. Canada (Minister of
Citizenship and Immigration) (2004), 250 F.T.R. 303 at para. 9; Adu
v. Canada (Minister of Citizenship and Immigration), 2005 FC 565 at para.
9). A pragmatic and functional analysis is not required (Canadian Union of
Public Employees v. Ontario (Minister of Labour), [2003] 1
S.C.R. 539 at para. 44).
[26]
Not
only do reasons foster better decision-making by ensuring that the issues and
reasoning are well-articulated, but they also provide a basis for an assessment
of possible grounds for appeal or review. This is particularly important when a
decision is subject to a deferential standard of review (VIA Rail Canada
Inc. v. National Transportation Agency, 193 D.L.R. (4th) 357 (F.C.A.) at
paras. 17, 19 (F.C.A.) [Via Rail]).
[27]
The duty
requires that the reasons be adequate. They must set out the findings of fact
and must address the major points in issue. The
reasoning process followed by the decision-maker must be set out and
must reflect a consideration of the main relevant factors. Further, a determination of
whether reasons are adequate must be considered in light of the particular
circumstances of each case. Where a person’s status is at issue, the requirements
are more stringent (Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817 at paras. 25, 75, Via Rail, above,
at paras. 21-22).
[28]
In the
present case, the Citizenship Judge only gives one reason for rejecting the
Applicant’s application for citizenship. He says that the Applicant “did not
have an adequate knowledge of Canada and the responsibilities and privileges of
citizenship” because “At the hearing, you [the Applicant] were unable to answer
mandatory (sic) question correctly; in respect to who can vote in a
Federal Election.”
[29]
The
Citizenship Judge then goes on to explain the legal basis for his conclusions:
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.
[30]
So it is clear that the reason the Applicant was rejected was that
he did not answer correctly the mandatory question about who can vote in a federal
election from the self-instructional material he had received.
[31]
We are not told in the Decision what it was, precisely, the
Applicant did not answer in relation to this specific question, but the
Applicant himself knew what he had done and had failed to do because he sets it
out in his affidavit:
34.
I
attended the hearing on April 5, 2007 at 8:00 a.m. before Judge Assadovrian.
35.
At the
hearing the Judge asked me a number of questions to test my knowledge of
Canada. He asked me about the politics and geography of Canada.
36.
I was
able to answer all her questions correctly.
37.
However,
when the Judge asked me about who can vote in a Federal election, I answered
that in order to vote, one must be at least 18 years old and a Canadian
citizen.
38.
Unfortunately,
the Judge was not satisfied with my answer because I did not state the third
requirement for voting, namely, that the voter must be registered on the voters
list.
[32]
The Respondent does not dispute these facts. So the Applicant knew
why he was rejected, either because the Judge told him at the time that he had
not referred to the registered voter requirement, or because it was clear from
the self-instructional material that a complete answer to the voting
requirement question required a reference to voter registration.
[33]
So as regards this Applicant, I think that the reasons are
adequate because he was given a clear explanation and rationale for why he had
failed, and it was something he understood.
[34]
In the
present case, the reasons provided by the Citizenship Judge are not, in my
view, inadequate. They clearly indicate the facts, the Judge’s conclusion and
the reasons supporting the decision. The Applicant was found not to have met
the knowledge requirement because he was unable to answer a mandatory question
correctly. The question was in relation to who can vote in a federal election.
[35]
Given the
particular circumstances of this case (that the Applicant failed to correctly
answer a mandatory question) the Citizenship Judge was not required to provide
a lengthy analysis. Had the Applicant answered the mandatory questions
correctly, but answered a number of other questions incorrectly, then the
Citizenship Judge would have been required to offer a more extensive analysis
of her reasons for finding that the Applicant had not satisfied section 5 of
the Act on a balance of probabilities. But this is not the case here.
[36]
Further,
the Citizenship Judge did not err by failing to indicate the Applicant’s score,
as it was irrelevant once the Judge concluded that the Applicant had failed to
answer correctly a mandatory question. Also, in order to protect the integrity
of the citizenship testing process, the examination questions were not
disclosed.
[37]
There
was no reviewable error on this issue. For these reasons, the appeal is
dismissed.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
the appeal is dismissed.
“James
Russell”
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