Date: 20080704
Docket: T-1438-07
Citation: 2008 FC 836
Ottawa,
Ontario, July 4,
2008
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
GUI
FANG LIU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Ms
Gui Fang Liu’s application for citizenship was refused because a citizenship
judge found that she did not have an adequate knowledge of either English or
French as required by paragraph 5(1)(d) of the Citizenship Act,
R.S.C. 1985, c. C-29 (Act). This appeal from that decision is dismissed
because Ms Liu has not established that the citizenship judge erred.
Legislative Provisions
[2] Subsection
5(1) of the Act reads as follows:
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. [emphasis added]
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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. [Non
souligné dans l’original.]
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[3] Also
relevant to this appeal are subsection 11(7) and sections 14 and 15 of the Citizenship
Regulations, 1993, SOR/93-246 (Regulations). The procedure to be followed
when an application for citizenship is received is set out in section 11 of the
Regulations. Subsection 11(7) of the Regulations deals with requiring the
personal attendance of an applicant before a citizenship judge. Section 14 of
the Regulations sets out the criteria for determining what constitutes adequate
knowledge of one of Canada's official languages. Section 15 of the Regulations
sets out the criteria for determining what constitutes adequate knowledge of Canada.
These provisions are as follows:
11(7) Where it
appears to a citizenship judge that the approval of an application referred
to the citizenship judge under subsection (5) may not be possible on the
basis of the information available, that citizenship judge shall ask the
Minister to send a notice in writing by ordinary mail to the applicant, at
the applicant’s latest known address, giving the applicant an opportunity to
appear in person before that citizenship judge at the date, time and place
specified in the notice.
[…]
14. The
criteria for determining whether a person has an adequate knowledge of one of
the official languages of Canada are, based on questions prepared by
the Minister,
(a) that the
person comprehends, in that language, basic spoken statements and questions;
and
(b) that the
person can convey orally or in writing, in that language, basic information
or answers to questions.
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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11(7)
Lorsque le juge de la citoyenneté saisi de la demande conformément au
paragraphe (5) estime qu’il lui est impossible d’approuver celle-ci sans de
plus amples renseignements, il demande au ministre d’envoyer un avis écrit au
demandeur à sa dernière adresse connue, par courrier ordinaire, l’informant
qu’il a la possibilité de comparaître devant ce juge aux date, heure et lieu
qui y sont précisés.
[…]
14. Une
personne possède une connaissance suffisante de l’une des langues officielles
au Canada si, à l’aide de questions rédigées par
le ministre, il est établi à la fois :
a) qu’elle
comprend, dans cette langue, des déclarations et des questions élémentaires;
b) que son
expression orale ou écrite dans cette langue lui permet de communiquer des
renseignements élémentaires ou de répondre à des questions.
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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Facts
[4] On
July 13, 2006, Ms Liu made an application for Canadian citizenship. In due
course, she was given a notice to appear on December 18, 2006, for the written
test of her knowledge of Canada and of the rights and responsibilities of
citizenship.
[5] On
December 18, 2006, Ms Liu attended for her written test. At that time, a
citizenship officer noted Ms Liu’s poor English and indicated that an oral
hearing before a citizenship judge might be appropriate.
[6] Ms
Liu successfully completed the written test. However, on June 21, 2007, Ms Liu
was given a notice to appear on July 18, 2007, for an oral hearing. On July
18, 2007, Ms Liu appeared before a citizenship judge and was asked a
number of questions in English.
[7] On
July 20, 2007, the citizenship judge advised Ms Liu that her application for
citizenship was not approved. The judge concluded that Ms Liu did not have
adequate knowledge of English and that no special circumstances existed in her
case which would justify a recommendation to the Minister that the language
requirement be waived.
The Asserted Errors
[8] Ms
Liu argues that the decision of the citizenship judge should be set aside on
any one of the following four grounds:
1.
The citizenship judge was without jurisdiction to conduct an oral
hearing to test her comprehension of English. Having passed the written test
of her knowledge of Canada, it was not open to the citizenship judge to “re-test”
her knowledge of English. Ms Liu contends that nothing in the Act or the
Regulations contemplates a citizenship judge conducting another language test.
According to Ms Liu, the relevant edition of the Citizenship Manual issued by
Citizenship and Immigration Canada “clearly states” that the written test is
used to assess both an applicant’s ability to communicate and their knowledge
of Canada. That Citizenship Manual “further states” an oral hearing is only
for persons failing the written test. Ms Liu notes that she passed the
written test. As to the provision found in the current edition of the Citizenship
Manual, which permits a citizenship judge to determine an applicant’s language
comprehension even if the written test is passed, Ms Liu claims that this
change was introduced in March, 2007, after she had passed the written test in
December, 2006.
2.
In the alternative, if the citizenship judge was entitled to
conduct an oral hearing, there was no evidence that the questions put to Ms Liu
were "prepared by the Minister" as required by section 14 of the
Regulations.
3.
Subsection 11(7) of the Regulations requires the citizenship
judge to determine when a hearing is required. There is no evidence in this
case to show that the decision to require Ms Liu to attend before the
citizenship judge was made by the judge.
4.
Finally, the reasons of the citizenship judge were inadequate.
[9] In
oral argument, Ms Liu did not pursue her argument that the citizenship judge
erred by failing to consider whether to exercise the discretion found in
section 15 of the Act and confirmed that the threat to invoke section 15 of the
Charter, which was made at the conclusion of her memorandum of argument, was an
empty one.
Standard of Review
[10] The
first three asserted errors put in issue whether the requirements of the Act
and Regulations were complied with. In my view, those are questions of law
that are reviewable on the standard of correctness. This reflects the
importance that the administrative system and procedural safeguards established
by Parliament in the Act, and by the Governor-in-Council in the Regulations, be
uniformly and consistently applied. It also reflects that these questions of
law fall outside of the expertise of a citizenship judge or those who
administer the system. See: Dunsmuir v. New Brunswick, 2008 SCC
9 at paragraphs 50 and 60.
[11] The
last issue inquires whether the requirements of procedural fairness were met.
That too is reviewable on the standard of correctness in the sense that no
deference is owed to the decision-maker. It is for the Court to determine
whether the requirements of procedural fairness were met. See: Canadian Union of Public
Employees v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539 at paragraph 100, and Dunsmuir at paragraphs 129 and 151.
Consideration of the asserted
grounds of error
(1) Could the citizenship
judge conduct an oral hearing after Ms Liu passed the written test of her
knowledge of Canada?
[12] In
my view, the citizenship judge had jurisdiction to conduct an oral hearing
after Ms Liu had successfully completed the written test of her “knowledge
of Canada and of the responsibilities and privileges of citizenship.”
Subsection 5(1) of the Act sets out knowledge of an official language of Canada
and knowledge of Canada as separate requirements, which permits, in my view, an
independent assessment of each by the citizenship judge.
[13] This
conclusion is also supported by the fact that the Regulations also contemplate
separate analyses, setting out the criteria for assessing an applicant’s
knowledge of French or English in section 14 and prescribing the relevant
factors for determining an applicant’s knowledge of Canada in section 15.
While both provisions are grounded in questions prepared by the Minister, the manner
in which those questions are used is different.
[14] Further,
the plain meaning of section 14 of the Regulations is that a person has an
adequate knowledge of English where he or she: (a) understands basic spoken
statements and questions; and (b) can convey orally or in writing basic
information or answers to questions. Subsection 14(a) of the Regulations
clearly includes an oral component. A citizenship judge must be satisfied than
an applicant can understand basic spoken statements and questions in English.
[15] As
for Ms Liu’s reliance, at least in her written submissions, upon the
Citizenship Manual, contrary to those submissions, the Citizenship Manual in
place at the time of Ms Liu’s written test provided as follows in section
5.6 of Chapter 4:
Language
Applicants for a grant of
Canadian citizenship must have an adequate knowledge of either English or
French. This means being able to communicate in everyday situations, such as
shopping, using public transport, understanding simple questions, and conveying
information reliably.
[…]
Knowledge
Applicants for a grant of
citizenship must show that they have an adequate knowledge of Canada and the
rights and responsibilities of citizenship. The citizenship test asks
questions about voting, Canada’s history, geography, and government; and about
the rights and responsibilities of Canadian citizenship. All questions are
based on the study guide A Look at Canada.
[16] On
the specific procedure for assessing the language requirement, section 5.9 of
Chapter 4 provided in part as follows:
Policy
CIC [Citizenship and Immigration
Canada] officials confirm some of the basic information on the application for
citizenship with the client at the time of testing. Where there is an
indication that the applicant does not comprehend basic spoken statements
and/or questions, this information is to be passed on to the citizenship
judge. The judge may then take this information into consideration when
determining whether the applicant meets the language requirement pursuant to
paragraph 5(1)(d) of the Citizenship Act.
Principles
• Responsibility
- Judges must approve each adult application before it can be granted. The
role of the test administrator is to gather information and evidence regarding
a citizenship applicant before a file is referred to a citizenship judge for
decision. CIC officials do not assess language. The test administrator is,
however, responsible for identifying to the judge, any person who appears to
have no knowledge of one of Canada’s official languages, or
appears not to comprehend oral statements.
[…]
What?
At the time of testing, test
administrators will verify information pertaining to the citizenship
application by asking the client to respond to statements and/or questions
related to the basic personal information indicated on the application form.
[…]
How?
Where there is an indication that
the applicant does not have a basic command of the language, this information
is to be identified on the [Citizenship Application Review Form]. A
notation “L” should be placed on the [Citizenship Application Review Form] to
indicate to the judge that the client has been identified as one who may have
difficulty communicating in one of Canada’s official languages.
It is then up to the citizenship judge to indicate whether he or she wishes to
conduct an oral interview with the client. Where a client clearly
understood the questions, there is no need to place a note on the file
regarding language capability.
Note: Even if the
client has passed the written test, it is up to the judge to determine whether
a hearing is necessary to assess the applicant’s oral comprehension and ability
to respond to oral statements. [emphasis added]
[17] Thus,
the relevant Citizenship Manual does not support Ms Liu’s contention that the
citizenship judge lacked jurisdiction to conduct an oral hearing. It
contemplated the very process that occurred.
(2) Were the questions
put to Ms Liu during the oral hearing prepared by the Minister as required by
section 14 of the Regulations?
[18] Five
pages of the 318 page certified tribunal record were redacted. The certifying
officer wrote:
Please note that pursuant to Rule
318(2), the information on pages 24, 25, 26, 283 and 286 is not included.
These pages contain Gui Fang Liu’s citizenship language oral assessment and the
knowledge test answer sheets of both applicants on file. We object to the
release of this information on the grounds that its disclosure would jeopardize
the integrity of the language oral assessment and citizenship knowledge tests.
[19] Ms
Liu therefore argues that there is no evidence as to what questions were put to
her during the oral hearing. She also states that it is "procedurally
unfair" for the respondent not to disclose the recorded results of the
oral English test.
[20] In
my view, these submissions fail to take into account that the burden is upon Ms
Liu to establish any error on the part of the citizenship judge. If Ms Liu was
of the view that the redactions to the tribunal record were improper, her
remedy was to proceed under Rule 318(3) of the Federal Courts Rules,
SOR/98-106. She cannot fail to challenge the tribunal's objection to disclose
information and then rely on the omissions from the tribunal record to argue
that there is no evidence to support the conclusion of the citizenship judge.
See: Baltruweit v. Canada (Attorney General), [2003] F.C.J. No. 1279 (C.A.)
at paragraph 8. (Rule 318 of the Federal Courts Rules is set out
in the appendix to these reasons.)
[21] Further,
the notes of the citizenship judge record:
Does not meet 5(1)(d): unable
to provide appropriate response to following questions because she did not
understand them. #s 26, 37, 42, 56, 64 and when she did understand a question
gave one-two word or short phrased answers.
[22] A
reasonable inference to be drawn from that note, pages 24, 25 and 26 of the
tribunal record, and the tribunal's objection to disclosure is that the
questions put to Ms Liu were standard questions prepared by the Minister.
(3) Was subsection 11(7)
of the Regulations complied with?
[23] When
Ms Liu attended to complete her written test, an officer noted on the File Requirements
Checklist her "poor English (son was translating behind her). I had to
tell him to be seated."
[24] Ms
Liu argues that there is no evidence to establish that the decision to require
her to attend an oral hearing was made by a citizenship judge as required by
subsection 11(7) of the Regulations. She places particular reliance upon the
fact that the citizenship judge did not sign the Citizenship Application Review
Form (CARF).
[25] Relevant
extracts from Chapter 4 of the Citizenship Manual are set out above at
paragraph 16. Also relevant are sections 1.15, 1.16, 3.4, 3.11, and 3.12
of Chapter 2 of the Citizenship Manual. They are as follows:
1.15. "Whoever
hears the parties makes the decision."
It is up to whoever
examines the evidence and documents submitted to make the decision.
1.16.
Exception
There is one exception
that is frequent in government: one person reads, hears and evaluates all the
pertinent information and then submits a report to another official who makes
the decision. This exception is allowed as long as the decision-maker takes all
the information into account. An example of this is found in the citizenship
process. Officers gather information, administer citizenship tests and then
provide the material evidence to a citizenship judge.
[…]
3.4.
Information judge should receive
Only refer
an application to a judge when all the needed documents and information are available.
The applicant's file
should include, at least:
• the application
form;
• the decision form
(for a 5(1) grant, the complete Citizenship Application Review Form (CARF));
• the results of the
written citizenship test, if relevant;
• any relevant
residence documents and information;
• any other documents
and/or information that might help the citizenship judge make a decision.
[…]
3.11. Judge says
what documents needed
A judge may want a
personal interview with an applicant. The judge should say what documents he or
she wants the applicant to provide.
3.12. Applicant
invited to interview by mail
When a judge requests
an interview with an applicant, citizenship officials send a written notice by
ordinary mail to the applicant's last-known address:
• giving the applicant a date, time and place for an
interview before the judge;
• telling the
applicant what documents the applicant should bring to the interview;
• telling the
applicant to ignore any notice of a time and place for swearing the oath of citizenship
he or she may have received.
[26] Ms
Liu has not pointed to any evidence in the tribunal record that is inconsistent
with the procedure set out in the Citizenship Manual. At the time of testing,
there was an indication that Ms Liu did not understand English. This
information was recorded for the citizenship judge. There is no evidence that
anyone other than a citizenship judge required Ms Liu to attend a hearing. The
fact that the judge did not sign the CARF does not by itself establish that the
decision to require Ms Liu to attend an interview was not made by the judge.
Section 3.14 of Chapter 2 of the Citizenship Manual only requires that a
citizenship judge check the appropriate box and sign the CARF when an application
for citizenship is approved.
(4) Were the reasons of
the citizenship judge adequate?
[27] Ms
Liu complains that: the reasons do not take into account that she passed the
written test; the decision letter does not say what oral questions she answered
correctly; and, the decision letter cites only four questions that Ms Liu is
said not to have been able to answer, but the judge’s notes list five questions
that she did not answer.
[28] There
is no discrepancy between the decision letter and the citizenship judge’s
notes. The four questions listed in the decision letter were expressly stated
to be illustrative – not exhaustive. The balance of Ms Liu's complaints do not
detract from the fact that the reasons allowed her to know why her application
for citizenship was refused and to consider whether to pursue an appeal. The
reasons fulfill the functions for which they are required. The reasons are,
therefore, adequate. See: VIA Rail Canada Inc. v. National Transportation
Agency, [2001] 2 F.C. 25 (C.A.) at paragraphs 21 and 22.
Conclusion
[29] For
these reasons, the appeal is dismissed. No costs are awarded because costs are
generally not awarded on citizenship appeals. See: Canada (Minister
of Citizenship and Immigration) v. Kovarsky, [2000] F.C.J. No. 1544 (QL) at
paragraph 12.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. The appeal is dismissed.
“Eleanor
R. Dawson”
APPENDIX
Rule 318
of the Federal Courts Rules
reads as
follows:
318(1) Within
20 days after service of a request under rule 317, the tribunal shall
transmit
(a) a
certified copy of the requested material to the Registry and to the party
making the request; or
(b) where the
material cannot be reproduced, the original material to the Registry.
(2) Where a
tribunal or party objects to a request under rule 317, the tribunal or the
party shall inform all parties and the Administrator, in writing, of the
reasons for the objection.
(3) The Court
may give directions to the parties and to a tribunal as to the procedure for
making submissions with respect to an objection under subsection (2).
(4) The Court
may, after hearing submissions with respect to an objection under subsection
(2), order that a certified copy, or the original, of all or part of the
material requested.
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318(1)
Dans les 20 jours suivant la signification de la demande de transmission
visée à la règle 317, l’office fédéral transmet :
a) au greffe
et à la partie qui en a fait la demande une copie certifiée conforme des
documents en cause;
b) au greffe
les documents qui ne se prêtent pas à la reproduction et les éléments
matériels en cause.
(2)
Si l’office fédéral ou une partie s’opposent à la demande de transmission,
ils informent par écrit toutes les parties et l’administrateur des motifs de
leur opposition.
(3)
La Cour peut donner aux parties et à l’office fédéral des directives sur la
façon de procéder pour présenter des observations au sujet d’une opposition à
la demande de transmission.
(4)
La Cour peut, après avoir entendu les observations sur l’opposition, ordonner
qu’une copie certifiée conforme ou l’original des documents ou que les
éléments matériels soient transmis, en totalité ou en partie, au greffe.
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