Date: 20080910
Docket: T-1830-07
Citation: 2008
FC 1018
Ottawa, Ontario, September 10,
2008
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
INDIRA
SADYKBAEVA
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
appeal brought pursuant to subsection 14(5) of the Citizenship Act,
R.S.C. 1985, c. C-29 (Citizenship Act) and section 21 of the Federal
Courts Act, R.S.C. 1985, c. F-7, of the decision of Citizenship Judge Agnes
Potts dated August 22, 2007. The Citizenship Judge concluded that the applicant
did not have an adequate knowledge of Canada
and of the responsibilities and privileges of Canadian citizenship, as required
by paragraph 5(1)(e) of the Citizenship Act. The applicant seeks to set
aside that decision and to refer this matter back to a different citizenship
judge for reconsideration.
I. Background
[2]
The
applicant is a thirty-six year old citizen of Kyrgyzstan who was admitted to Canada with her son and husband as a
permanent resident on July 26, 2001.
[3]
In
December 2005, the applicant submitted her application for Canadian
citizenship, although she had accumulated only 944 days of residence within the
four years preceding her application. Despite her absences from Canada, due in part to her husband’s
frequent business trips overseas and visits to her parents in Kyrgyzstan, the
applicant felt that she and her family had made Canada their home.
[4]
In
February of 2006, the applicant received two letters indicating that both her
application and her son’s application had been received by the Case Processing
Centre in Sydney and they were being
reviewed. The material part of that letter reads as follows:
It will take approximately 12-15 months
from the date of this letter to complete your application(s). This is the
routine processing time. Some applications may take longer. If you are a person
who is required to write the test, we suggest you use this time to prepare for
the citizenship test.
To become a Canadian citizen, persons aged
18 to 54 years must meet language and knowledge requirements. You must know
enough English or French to carry on a simple conversation. You must know
enough about Canada’s history, geography and
government, and the rights and responsibilities of citizenship to pass a test. The
written test will take about 30 minutes to complete. All of the questions on
the citizenship test are about the information in the enclosed book, A Look at Canada.
[5]
In July of
2006, Citizenship and Immigration Canada (CIC) sent the applicant a letter
indicating that she was required to complete a “residence questionnaire”, which
would “assist the citizenship judge in determining whether [she met] the
residence requirement of the Citizenship Act”.
[6]
In July of
2007, the applicant was given notice to appear at a hearing with a citizenship
judge. This letter provides the applicant with the date of the interview and
the name of the Citizenship Judge who will conduct the interview. The opening
paragraph of that letter states:
The Citizenship Judge needs more
information to make a decision about your citizenship application and you must
appear for a hearing. At this hearing, the Judge will determine whether you
meet all the requirements for citizenship and you may be asked questions to
determine if you have an adequate knowledge of English or French and an
adequate knowledge of Canada.
[7]
The
applicant attended the interview on August 14, 2007. After questioning the
applicant on her absences from Canada and on her current activities
within Canada, the Citizenship Judge proceeded to an oral examination about the
applicant’s knowledge of Canada and of the responsibilities
related to citizenship. The applicant, who was expecting that she would be
given the opportunity to write the citizenship test at a later date, explained
to the Citizenship Judge that she was unprepared and too nervous to undergo an
oral citizenship test. The Citizenship Judge nevertheless administered the test
and read aloud the questions.
[8]
By letter
dated August 22, 2007, the applicant received notice of the Citizenship Judge’s
negative decision on her citizenship application. In her decision, the
Citizenship Judge denied the application, not on the basis of the residency
requirement, but due to poor performance on the oral citizenship test. The
material part of Citizenship Judge Potts is as follows:
I found, at that time, that you did not
have an adequate knowledge of Canada and of the responsibilities
and privileges of citizenship. Subsection 5(1)(e) of the Citizenship Act
provides that an applicant for citizenship must have an adequate knowledge of Canada and of the responsibilities
and privileges of Canadian citizenship in order to qualify for citizenship. At
the hearing, you did not have adequate knowledge of the geography, the history,
the levels of government, the political structure of government, the voting
procedures for a federal election, or the responsibilities of citizenship.
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.
[9]
The
applicant submitted two arguments in support of her application for judicial
review of that decision. First, she argued that the Citizenship Judge gave her
inadequate notice of the test, therefore breaching her right to procedural
fairness. Second, she asserts that she had a legitimate expectation that the
CIC Policy and Program manuals would be applied in a fair and consistent
manner, and she would either be given the opportunity to demonstrate her
knowledge of Canada through the provision of a written citizenship test, or to
receive proper notice that the oral test was her only opportunity to prove this
requirement.
II. Analysis
A. Statutory framework
[10]
Paragraph
5(1)(e) of the Citizenship Act provides that an applicant for
citizenship must have an adequate knowledge of Canada and of the responsibilities and
privileges of Canadian citizenship in order to qualify for citizenship. The Citizenship
Act, however, does not specify what constitutes “adequate knowledge of Canada and of the responsibilities
and privileges of citizenship”; this is left to section 15 of the Citizenship
Regulations, 1993, SOR/93-246 (Regulations), which prescribes the
following:
|
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).
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[11]
As can be seen from
these provisions, there is nothing in the Citizenship Act or in the Regulations
directing how the assessment of an applicant’s knowledge is to be performed. Rather,
one must turn to the publicly available CIC “Policy and Program Manuals”
applicable to section 5 of the Citizenship Act for assistance in
understanding the procedure employed by CIC in its assessment of an applicant’s
adequate knowledge of Canada. I shall come back to this policy shortly.
B. Standard of review
[12]
There is no dispute
between the parties as to the applicable standard of review. As this
application only raises issues of procedural fairness, the pragmatic and
functional analysis does not apply. As the Federal Court of Appeal found in Sketchley
v. Canada (AG), 2005 FCA 404, [2006] 3 F.C.R. 392, those issues are always
reviewed as questions of law and call for the application of the correctness
standard.
C. Inadequate notice
[13]
The applicant argues
that her procedural fairness rights were breached because she did not receive
proper notice of the oral citizenship test. In response, the Minister argues
that neither the Citizenship Act nor the Regulations require that
a written test be given for all applicants. In any event, the letter convoking
the applicant for an interview indicated that the applicant “may be asked
questions” to determine her knowledge of Canada.
[14]
There is no question
that a duty of procedural fairness applies to the decision to grant or deny
citizenship. But that begs the question. As Justice L’Heureux-Dubé wrote in Knight
v. Indian Head
School Division No. 19,
[1990] 1 S.C.R. 653, [1990] S.C.J. No. 26 (QL) at p. 682, “the concept of
procedural fairness is eminently variable and its content is to be decided in
the specific context of each case”. She subsequently developed a list of
factors to be taken into consideration in determining what procedural rights
the duty of fairness requires in a given set of circumstances: see Baker
v. Canada (MCI), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 at
paras. 22(ff) (Baker). These are the nature of the decision, the statutory
scheme, the importance of the decision to the individual affected, the
legitimate expectations of the individual, and the choice of procedures.
[15]
Applying these
criteria to the case at hand, I am of the view that a fairly high standard of
procedural fairness must inform the decision-making process followed in a
citizenship application. I am mindful of the fact that decisions to deny
citizenship applications are not final and may be appealed to the Federal Court
pursuant to section 14(5) of the Citizenship Act, and that the
discretion bestowed on Citizenship Judges is quite broad and affords them a
wide margin of appreciation to decide on proper information gathering
procedures.
[16]
That being said, the
nature of the decision clearly resembles an adjudication. It is based on facts
concerning an individual, which are assessed in light of reasonably objective
criteria, and the outcome applies only to the individual party. Moreover, the
decision to grant or deny citizenship is obviously of great importance to the
applicant as it affects her rights, privileges and responsibilities in this
country, as well as those of her son. Finally, the applicant had an expectation
that a certain procedure would be followed with respect to the assessment of
her knowledge of Canada. While the Supreme Court stressed in Baker
that legitimate expectations can not create substantive rights, it did
emphasize that they could inform the content of the duty of fairness owed to an
individual.
[17]
As previously
mentioned, the CIC letter acknowledging receipt of her citizenship application
of February 27, 2006, stated not only that persons aged 18 to 54 years must
meet language and knowledge requirements, but also that “[T]he written test
will take about 30 minutes to complete. All of the questions on the test are
about the information in the enclosed book, A Look at Canada. A CIC office will inform you of the date, time and place
of your test”. Since the written test was the only form of evaluation mentioned
in the letter, it clearly gave rise to the expectation that the applicant would
be tested in that way.
[18]
Such an expectation
was clearly legitimate, especially in light of the publicly available CIC
“Policy and Program Manuals” applicable to section 5 of the Citizenship Act.
While not binding, these policy manuals are clearly meant to offer some
assistance in understanding the procedure employed by CIC. The CP4 Manual
explains:
|
5.3.
Applicants between 18 and 54 years of age write the test
All applicants
18 to 54 years of age applying for citizenship must write the citizenship
test.
An applicant
who fails the written test must pass an oral interview with a citizenship
judge on the knowledge and language requirements.
5.7
Notifying applicants
Send each
applicant for a grant of citizenship a Notice to Appear - To Write a
Citizenship Test [CIT 0023E], by regular mail, at least 14 days before the
test date.
(…)
Include in
notice
Include the
following information in the notice to appear about the test:
• the date and
time of the test;
• the place of
the test;
• that the
test will be a written test;
• the
identification and supporting documents the applicant must bring to the test.
|
5.3.
Les demandeurs âgés de 18 à 54 ans font l’examen
Toute
personne âgée de 18 à 54 ans qui présente une demande de citoyenneté doit
subir
l'examen
écrit de citoyenneté. Si un demandeur échoue à l'examen écrit, il doit avoir
une
entrevue
personnelle avec un juge de la citoyenneté qui évaluera ses aptitudes
linguistiques et ses connaissances.
5.7.
Procédure pour aviser les demandeurs
Il
faut envoyer à chaque personne qui fait une demande de citoyenneté un Avis de
convocation – Examen de citoyenneté [CIT 0023F], par courrier ordinaire, au
moins 14 jours avant la date de
l'examen.
Renseignements
à fournir dans l'avis
L'avis
de convocation à l'examen doit contenir les renseignements suivants :
•
la date et l'heure de l'examen;
•
le lieu de l'examen;
•
indication que l'examen se fait par écrit;
•
les pièces d'identité
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[19]
It is true, as the
respondent submits, that the notice to appear at a hearing with a Citizenship
Judge sent to the applicant in July of 2007 did mention that she “may” be asked
questions to determine if she had an adequate knowledge of Canada. But was that sufficient to displace her legitimate
expectation that she would be tested in writing? I do not believe so. Not only
was this notice vague and written in a permissive language, but it did not
clearly and explicitly state that, contrary to information provided in earlier
correspondence and the Policy Manual, she would only be tested orally.
[20]
Indeed, the CP2
Manual, “Decision-Making”, explains the purpose behind these hearings with a
Citizenship Judge:
|
3.10. When
interview necessary
As a general
rule, citizenship judges should interview applicants who:
• fail the
written citizenship test;
• are caught
cheating on the written citizenship test;
• have a
criminal, immigration or residence issue that must be resolved.
|
3.10.
Circonstances dans lesquelles une entrevue avec le juge est nécessaire
En
règle générale, un demandeur doit avoir une entrevue avec le juge de la
citoyenneté dans les
circonstances
suivantes :
•
le demandeur échoue à l'examen écrit de citoyenneté ;
•
le demandeur est pris à tricher à l'examen écrit de citoyenneté ;
•
la demande comporte une question judiciaire, d'immigration ou de résidence
qui doit être résolue.
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[21]
The CP4 Manual
confirms this practice, indicating:
|
6.3.
Purpose
The oral
interview for applicants who fail the written test assesses the applicant’s
ability to communicate in English or French, and the applicant’s knowledge of
Canada and the responsibilities and
privileges of citizenship.
6.5.
Interview is new test
The oral
interview is a new test of the applicant's language and knowledge
capabilities.
Keep the
applicant's failed written test in his or her file.
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6.3.
Objet
Si
un demandeur échoue à l'examen écrit, il doit avoir une entrevue orale qui
sert à évaluer sa capacité de communiquer en français ou en anglais et sa
connaissance du Canada et des responsabilités et privilèges rattachés à la
citoyenneté.
6.5.
L'entrevue est un autre examen
L'entrevue
personnelle est un autre examen des aptitudes linguistiques et des connaissances
du demandeur.
Conservez
dans le dossier du demandeur l'examen écrit auquel il a échoué.
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[22]
The applicant had not
written and failed her citizenship test prior to being called in for an
interview to determine her residency in Canada. Further, she has provided undisputed
affidavits of the applicant (based on information from friends and acquaintances)
and of her counsel (based on her practice as an immigration lawyer and on the
Policy Manuals published by CIC) to the effect that written citizenship tests
are the standard procedure. Therefore, the applicant could reasonably have been
under the impression that she would not be questioned orally on her knowledge
of Canada at the August 2007 interview. In light
of all the circumstances, the permissive language employed in the notice letter
of July 2007 was not sufficient to put her on notice that she would not have
the benefit of a written exam but would only be tested orally.
[23]
On the basis of the
factors developed in Baker to determine the content of procedural
fairness in a given set of circumstances, and taking into particular
consideration the legitimate expectations of the applicant, I am of the view
that she was entitled to proper notice that she would not go through a written
exam but would only be given one opportunity to demonstrate orally that she had
an adequate knowledge of Canada. Had her notice letter of July 2007 been more
explicit, and/or had the language employed been mandatory, she might have known
that CIC was not allowing her the opportunity to write a citizenship test and
she might have prepared accordingly.
[24]
This finding is
consistent with the decision recently reached by my colleague Justice Danièle Tremblay-Lamer
in Santos v. Canada (MCI), 2008 FC 205, 164
A.C.W.S. (3d) 744. In that case, the applicant had successfully taken a written
test to determine whether she met the minimum language and knowledge
requirements. When she appeared before the Citizenship Judge for a hearing of
her application for Canadian citizenship, she was given an oral test to assess
her knowledge of Canada. Her application for citizenship was
eventually denied as the Judge found that the applicant had not fulfilled the
knowledge requirement.
[25]
After having gone
through the five factors set out in Baker, Justice Tremblay-Lamer came
to the conclusion that fairness requires, at minimum, that applicants be
re-tested solely where there is a valid reason to do so and where adequate
notice of the impending second test has been given. In light of the fact that
the applicant had successfully passed the written test, she had reasonable
grounds to believe that the subject of the interview would be her absences from
Canada. Not only were there no valid reasons to
re-test the applicant, but the notice of interview indicating that some
knowledge questions may be asked was found to be too vague and not specific
enough to signal what amounted to a re-test. While this case is factually
different from the case at bar, the issue of procedural fairness raised in both
situations is very similar and thus the logic of Justice Tremblay-Lamer’s
decision equally applicable here. See also Hussain v. Canada (MCI),
[1999] F.C.J. No. 1130 (QL).
[26]
I am aware of the
decision rendered by this Court in El Fihri v. Canada (MCI), 2005 FC
1106, 147 A.C.W.S. (3d) 745 (El Fihri), where it was held that the
applicant could not claim that she should have received a written examination
and that the Judge should not have asked her the questions verbally. In
reaching that decision, the Court relied on the fact that nothing in the Citizenship
Act or in the Regulations prescribed a written test, and that a
notice to appear similar to the one received by Ms. Sadykbaeva in July of 2007
provided sufficient notice. I am further aware that the primary issue, there as
here, was the assessment of the residence requirement. However, there is no
reference in that decision to the Policy Manuals issued by CIC, and there is no
indication that they were filed as part of the record. Indeed, this case seems
to have focused on the merit and on the substantive issues more than on
procedural fairness. This is borne out by the fact that the Court applied a
standard of reasonableness simpliciter to determine that the Citizenship Judge
had made no error in his analysis or in his application of the Citizenship Act.
It is therefore with these caveats that I respectfully beg to disagree with
that ruling.
[27]
This is not to say
that CIC cannot change its policy on the provision of citizenship tests. Since
the Citizenship Act and its Regulations are silent as to how an
applicant is to be assessed with respect to his or her knowledge of Canada, the
respondent could modify its process and decide to give all or some applicants
only one opportunity to demonstrate, orally or in writing, their knowledge of Canada. Should CIC decide to move in that direction, however, this
modification should be reflected in the Policy and Program Manuals which govern
the process by which applicants apply for Canadian citizenship. If CIC intends
to rely on the manuals as they are published on its website, adequate notice of
this change in policy should be given to all applicants who may be affected.
[28]
Having come to that
conclusion, it is not necessary to deal with the second argument put forward by
the applicant. As indicated by the Supreme Court of Canada in Baker, the
doctrine of legitimate expectations does not have an independent life of its
own in Canada but is rather subsumed under the
doctrine of fairness or natural justice. As I have already decided that the
applicant had a legitimate expectation which, in turn, affected the content of
the duty of fairness that was owed to her, I need say no more on this subject.
[29]
For these reasons,
the appeal is granted. As a result, the decision of the Citizenship Judge Agnes
Potts dated August 22, 2007, refusing to approve the applicant’s application for
Canadian citizenship, is set aside. The matter is returned to a different
Citizenship Judge to be decided in accordance with these reasons, as soon as
practicable.
ORDER
THIS COURT ORDERS that the appeal is granted. The
decision of the Citizenship Judge Agnes Potts dated August 22, 2007, refusing
to approve the applicant’s application for Canadian citizenship, is set aside. The
matter is returned to a different Citizenship Judge to be decided in accordance
with these reasons, as soon as practicable.
"Yves
de Montigny"
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