Date:
20130327
Docket:
T-1238-12
Citation:
2013 FC 313
Ottawa, Ontario,
March 27, 2013
PRESENT: The
Honourable Madam Justice Strickland
BETWEEN:
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WEI ZHOU
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an appeal by Wei Zhou (Applicant), brought pursuant to subsection 14(5) of the
Citizenship Act, RSC 1985, c C-29 (the Act), of the decision of a
citizenship judge denying her application for citizenship. The denial was
based on the Applicant’s failure to achieve the required passing grade on the
citizenship test and, thereby, to demonstrate that she has adequate knowledge
of Canada and of the responsibilities and privileges of citizenship as required
by subsection 5(1)(e) of the Act. The present appeal is brought in accordance
with section 18.1 of the Federal Courts Act, RSC 1985, c F-7 and Rule
300(c) of the Federal Courts Rules, SOR/98-106 (the Rules).
Background
[2]
In
1999 the Applicant came to Canada as a student. She became a permanent
resident on October 17, 2003 and in 2010 submitted a citizenship application,
which was received by the Respondent on July 9, 2010. By way of a notice dated
September 14, 2011, the Applicant was directed to write a citizenship test on
September 29, 2011. She advised the Respondent that she was unable to attend
as she would be away from Canada from June 28, 2011 to March 2012. She was
then directed to appear on December 28, 2011 at a hearing before a citizenship
judge.
[3]
The
Applicant attended as directed and a citizenship test was administered by Citizenship
Judge George Khouri (Citizenship Judge). By letter dated April 26, 2012, the
Applicant was notified by the Citizenship Judge that her application was not
approved because she had not demonstrated, through her responses to questions
prepared by the Minister, the requisite level of knowledge per subsection
5(1)(e) of the Act. More specifically, the Applicant had answered only
thirteen out of twenty questions correctly, obtaining a score of 65%, and
thereby failing to obtain the required passing grade of 75% (the Decision).
[4]
The
Applicant appealed and, in support of her application for judicial review of
the Decision, filed an affidavit wherein she stated that that she had correctly
answered all of the test questions and that the Citizenship Judge had made
statements during the interview which, she argued in her application, gave rise
to a reasonable apprehension of bias.
The
Impugned Decision
[5]
In
his Decision, the Citizenship Judge advised the Applicant that he was providing
her with notice of his decision in accordance with subsection 14(3) of the Act.
He set out the legislative requirements that were relevant to her application
and the Decision and explained that subsection 5(1)(e) requires
an applicant for citizenship to have an adequate knowledge of Canada and of the responsibilities and privileges of citizenship. Further, the Citizenship Judge
indicated that pursuant to subsection 15(1) of the Citizenship Regulations,
SOR/93-246 a person is considered to have adequate knowledge of Canada if they
demonstrate, based on their responses to questions prepared by the Minister,
that they know the national symbols of Canada and have a general knowledge of
specified subjects, and, pursuant to subsection 15(2) of the Citizenship
Regulations, if they similarly demonstrate an adequate knowledge of
the responsibilities and privileges of citizenship.
[6]
The
Citizenship Judge concluded by stating:
The citizenship test
questions on knowledge of Canada and of the rights and responsibilities of
citizenship are based on information provided in the study guide, Discover
Canada: The Rights and Responsibilities of Citizenship. The citizenship
test consists of 20 questions and the pass mark is of 75% (15 questions
answered correctly out of 20 questions).
At the hearing, I asked you questions based on
questions prepared by the Minister to determine if you met the requirement of
paragraph 5(1)(e) of the Act and you obtained 13 out of 20 resulting in a
score of 65%. You were unable to answer correctly to questions related to the
following topics:
•
voting
procedures and how to register yourself as a voter;
•
Canada’s history;
•
Canada’s geography; and
•
the
responsibilities and privileges of citizenship
For those reasons, you do not meet the requirements
of paragraph 5(1)(e) of the Citizenship Act in order to be granted
Canadian citizenship.
[…]
Issues and
Standard of Review
[7]
The Applicant submits
that there are three issues; the Respondent adds a fourth:
i.
Did
the Citizenship Judge err in law and lose jurisdiction to refuse the
citizenship application because he failed to render his Decision within 60 days
as required by subsection 14(1) of the Act?
ii.
Did
the Citizenship Judge err by failing to provide adequate reasons for his
Decision?
iii.
Was
the Citizenship Judge biased?
iv.
Did
the Citizenship Judge err in finding that the Applicant had failed to obtain
the minimum pass mark on the citizenship test and thereby failed to satisfy
subsection 5(1)(e) of the Act?
[8]
Given the guidance of the
Supreme Court of Canada in Newfoundland and Labrador Nurses' Union
v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at
para 14,
that the
reasons offered for a decision are to be assessed along with the outcome of
that decision to determine whether the decision as a whole is reasonable,
“adequacy of reasons” is no longer a stand-alone ground for challenging a
decision. As such, I
find that the second and fourth issues should be considered together and would
rephrase the issues as follows:
i.
Did
the Citizenship Judge err in law and lose jurisdiction to refuse the
citizenship application because he failed to render his Decision within 60 days
as required by subsection 14(1) of the Act?
ii.
Was
the Citizenship Judge’s finding that the Applicant had failed to obtain the
minimum pass mark on the citizenship test and thereby failed to satisfy
subsection 5(1)(e) of the Act reasonable?
iii.
Has
the Applicant satisfied the burden of establishing that there was a reasonable
apprehension of bias on the part of the Citizenship Judge?
[9]
The Supreme
Court of Canada has held that a standard of review analysis need not be
conducted in every instance. Instead, where the standard of review applicable
to a particular question before the court is well settled by past
jurisprudence, the reviewing court may adopt that standard of review (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 57 [Dunsmuir]).
[10]
It
is well-established that a citizenship judge’s finding that an applicant failed
a citizenship test is to be measured against a standard of reasonableness (Desai
v Canada (Minister of Citizenship and Immigration), 2013 FC 194 at para 7; Zhou v Canada
(Minister of Citizenship and Immigration), 2013 FC 19 at
para 13; El-Kashef
v Canada (Minister of Citizenship and Immigration), 2012 FC 1151
at para 10).
[11]
When
reviewing a decision on the reasonableness standard, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (see Dunsmuir, above, at
para 47 and Canada (Minister of Citizenship and Immigration) v Khosa,
2009 SCC 12 at para 59 [Khosa]).
[12]
In
contrast, no such deference is owed to an administrative decision-maker on issues
of procedural fairness (Khosa, above, at para 43; Raad v Canada (Minister of
Citizenship and Immigration),
2011 FC 256 at para 23). Thus, the question of whether the Citizenship Judge
was biased will be assessed on the standard of correctness.
[13]
For
the reasons set out below, the standard of review applicable to the
jurisdictional issue need not be addressed.
Analysis
i) Loss of Jurisdiction
[14]
In
her written submissions the Applicant argued that the Citizenship Judge had
lost jurisdiction to decide on her citizenship application because he had not
rendered the Decision within sixty days as required by subsection 14(1) of the Act.
However, at the hearing before this Court, the Applicant conceded that this was
solely an issue of costs, and not one of jurisdiction or procedural fairness.
ii) The Reasonableness
of the Citizenship Judge’s Decision
[15]
Prior
to assessing the reasonableness of the Decision, I will first set out what
properly forms part of the record before me. This requires background
regarding a confidentiality issue and a ruling on the appropriateness of
content in a proffered affidavit.
[16]
First,
in terms of the confidentiality issue, the specific questions that the
Citizenship Judge determined were answered incorrectly by the Applicant were
not disclosed in his reasons nor was the citizenship test that had been
administered provided as a part of the certified tribunal record (CTR). The
CTR was provided to the parties and filed with the Federal Court Registry by
way of a covering letter dated July 10, 2012 from Ms. Anna Del Medico,
Citizenship Counsellor, Citizenship and Immigration Canada (CIC). In that
letter, Ms. Del Medico specifically noted that pages 06, 07 and 08 of the
record had been omitted in their entirety as they contained the Applicant’s
responses to the citizenship test. Pursuant to Rule 318(2), CIC objected to
the release of that information on the grounds that its disclosure would
jeopardise the integrity of the test.
[17]
Rule
317 states that a party may request that it be provided with material relevant
to an application that is in the possession of a tribunal whose decision is the
subject of the application. This can be done as a part of its notice of
application as was the case in this matter. Rule 318(2) states that where the
tribunal objects to a Rule 317 request it shall inform all parties of the
reason for the objection.
[18]
Although
CIC objected to the disclosure of the citizenship test when the CTR was
produced, on September 7, 2012 the Respondent brought a motion seeking a
confidentiality order concerning the citizenship test. This would permit the
filing of a sealed and confidential copy of the test and review of the test, in
accordance with the terms of the confidentiality order, by counsel and the
parties. The Applicant opposed that motion.
[19]
By
order dated October 2, 2012 Prothonotary Milczynski indicated that she was
satisfied that it was in the public interest to maintain the confidentiality of
the information sought to be sealed so as to ensure the integrity of the
citizenship testing process. She ordered CIC to file the pages not included in
the original CTR (the citizenship test) with the Court to be sealed and treated
as confidential pursuant to Rule 152. Upon the filing of written undertakings of
counsel in accordance with Rule 152(2)(b), the solicitors of record and the
parties would be permitted to access the sealed pages, referred to as the
Confidential CTR Material.
[20]
The
confidential citizenship test was duly filed with the Court on October 5, 2012
and the solicitor for the Respondent subsequently filed the required written
undertaking. The solicitor for the Applicant did not file an undertaking. At
the time of the hearing before this Court neither counsel for the Applicant nor
the Applicant had reviewed the subject citizenship test.
[21]
The
Applicant argues that she disagrees with the Order of the Prothonotary that it
is a matter of public interest to maintain as confidential the citizenship test
questions and asserts that there is no authority or direction provided by the
Minister to do so. However, what is before me is the appeal of the Citizenship
Judge’s Decision, not an appeal of the Prothonotary’s Order, with which I agree
in any case.
[22]
On
September 13, 2012 the Applicant brought a motion challenging an affidavit of
Ms. Del Medico, dated August 15, 2012. That affidavit was filed by
the Respondent as a part of its record. Attached as Exhibit “A” to the
affidavit was the July 10, 2012 letter from Ms. Del Medico providing the
parties with the CTR. The Applicant sought to have paragraphs 3, 4, 5, 6 and 7
of the affidavit struck out pursuant to Rule 81 as she alleged that those
paragraphs were not made within the affiant’s personal knowledge. By Order
dated October 2, 2012 Prothonotary Milczynski dismissed the motion on the basis
that the issue should be addressed by the Judge hearing the appeal on its
merits.
[23]
Before
this Court, the Applicant asserted that the affidavit was inadmissible as it
was intended to bolster the record and the reasons of the Citizenship Judge.
Further, the Applicant argues that because the CTR, including the citizenship
test, are exhibits to the affidavit they too are inadmissible and do not
comprise a part of the record that can be reviewed by this Court in this
appeal. In short, the Applicant contends that there is no admissible evidence
as to the outcome of the citizenship test other than the unchallenged affidavit
of the Applicant stating that she correctly answered all of the test questions.
[24]
The
affidavit reads as follows:
I, Anna Del Medico, Citizenship Officer, Citizenship
and Immigration Canada, Scarborough Citizenship, SWEAR THAT:
1. I am employed with the
Government of Canada at the local office of Citizenship and Immigration Canada
(“CIC”) in Scarborough. I am Citizenship Officer and responsible for
responding to requests for documents in possession of our office. As such, I
have knowledge of the matters thereafter deposed.
2. The Applicant is appealing
the decision of Citizenship Judge George Khouri. On his notice of application
the applicant requested that CIC Scarborough Citizenship office at 200 Town Centre Court, Suite 370 Scarborough ON M1P 4X8 send to the parties and the Registry
of the Federal Court a certified copy of the Citizenship Judge’s complete file
relating to the Applicant’s citizenship application.
3. As a Citizenship Officer, it
is my responsibility to prepare the true copies of documents requested by the
Applicant. I reviewed the citizenship file and prepared a true copy of this
file. I sent the letter dated July 10, 2012 and addressed to the Registry,
Federal Court of Canada, certifying the record. I also sent the certified true
copy of the record with the letter to the parties and the Court.
4. Attached as Exhibit “A” is a
true copy of the certified tribunal record previously sent to the parties and
the Court.
5. When I put together the
Certified Tribunal Record and filed the documents with the Federal Court
registry on July 7, 2012, I redacted the list of questions used and annotated
by Citizenship Judge George Khouri in assessing the Applicant’s knowledge of Canada pursuant to section 318(2) of the Federal Court Rules.
6. In order to ensure fair
treatment to all applicants and to ensure the integrity of the citizenship
testing process is not compromised, Citizenship and Immigration Canada never
discloses the copies of the tests, including the questions and answers.
7. I have reviewed the notes
from the oral examination of the applicant’s knowledge of Canada and the responsibilities and privileges of Canadian citizenship on her file and I can attest
that Ms. Zhou correctly responded to 13 questions out of 20. As a result,
she obtained a score of 13 out of 20 (65%) and failed the test.
Specifically, Ms. Zhou failed to correctly answer questions 1, 2, 7, 11, 14, 16 and 18. I
have further reviewed Ms. Zhou’s answers and confirm that her answers to
questions 1, 2, 7, 11, 14, 16 and 18 are incorrect.
[…]
[25]
Paragraphs
1 to 5 of the affidavit are factual and are matters of which Ms. Del Medico
would have personal knowledge as a result of her stated position and the
responsibilities that go along with that position. Those paragraphs attest to
the compiling and certification of a true copy of the CTR and are admissible as
is Exhibit “A”. This includes the citizenship test which was originally
identified as forming a part of, but redacted from, the CTR and which was
subsequently provided as the Confidential CTR in accordance with the
confidentiality order. As to paragraphs 6 and 7 of the affidavit and Exhibits
“B” and “C”, these attestations are evidentiary in nature and could be
interpreted as intended to support the Respondent’s position. Further, the
exhibits do not comprise a part of the tribunal record. As such, I afford
paragraphs 6 and 7 and Exhibits “B” and “C” no weight (Sellathurai v Canada (Minister of Public Safety and Emergency Preparedness), 2008 FCA 255 at paras 45-47; Qin
v Canada (Minister of Citizenship and Immigration), 2013 FC 147 at paras
17-18).
[26]
I
now turn to the substance of the Decision. Simply put, there is no evidence on
the record before me that the Citizenship Judge erred in his Decision or, more
precisely, in his assessment of the Applicant’s knowledge under subsection
5(1)(e) of the Act. Indeed, the record clearly confirms his conclusion.
[27]
In
this regard, the Confidential CTR is comprised of the three pages which were
redacted from the CTR, being a document entitled Canadian Citizenship Test -
Oral Hearing, a standard document. In the Client Name section is entered by
hand “Zhou Wei”, in the File Number section is entered by hand 3981286, and, in
the Date section is stamped Dec 28, 2011. Questions numbered one to twenty are
set out. Under each question is listed the correct answer (or answers if more
than one is acceptable). The test is annotated by hand to indicate which
questions were answered correctly and which were answered incorrectly. Where a
correct answer was given by the Applicant this is underlined by hand and a
check mark placed by the question. Where an incorrect answer was given an “X”
is placed by the question and the incorrect answer given by the Applicant is
recorded by hand. Seven questions are marked as answered incorrectly and
thirteen are marked as answered correctly. In one case the recorded answer is
“I can’t remember, I’m sorry” and in another it is “no answer”. The test is
signed by the Citizenship Judge.
[28]
The
CTR also contains a copy of the Notice to the Minister of the Decision of the
Citizenship Judge dated December 28, 2011. This was prepared and signed by the
Citizenship Judge and confirms that all of the citizenship requirements,
including residency, had been met by the Applicant with the exception of
subsection 5(1)(e). In the reasons set out in that document the Citizenship
Judge wrote that “The Applicant has not complied with paragraph 5(1)(e)
(knowledge) as per attached assessment, correctly answered 13/20, 65% on “The Knowledge
of Canada”, when the minimum requirement is 15/20 – 75%.”
[29]
Not
having taken the opportunity to review the answers noted, the Applicant has
offered no specific challenges to the Decision, other than her general claim to
have answered all of the questions correctly. This is contradicted by the
tribunal record. Based on that record, the Citizenship Judge’s Decision was
justifiable, transparent and intelligible and the only possible outcome.
[30]
At the
hearing, the Applicant also submitted that it was unfair that she was required
to have an interview before a citizenship judge and have a citizenship test
given orally. She submits that because she was unavailable to write the test
when it was originally scheduled that it should simply have been rescheduled. She
claims that due to a clerical error of the Respondent, she was required to
appear before the Citizenship Judge and that had it been otherwise she would
have passed the test. The Applicant did not refer me to any regulation, policy
or directive indicating that if an applicant cannot attend a scheduled written
citizenship test then the applicant is entitled to a second scheduled written
test rather than being directed to attend before a citizenship judge. In my
view the Applicant’s argument cannot succeed in the absence of a supporting
legislative or other basis.
iii) Bias
[31]
In
her affidavit the Applicant states:
9. The Judge made me feel
nervous right away by the tone of his voice.
10. He said to me ‘Do you
know you don’t live in Canada for a long time, but you still take advantage of
the benefits and welfare. It is not fair to Canadian.’
[…]
16. As I got up to leave
after the interview the judge said to me
‘I think you better tell your other friends if they
don’t live in Canada for the long term, do not apply for citizenship. It is
not fair to Canadians.’
[…]
[32]
The
Applicant submits that these comments meet the test for a reasonable
apprehension of bias as set out in the dissenting opinion of Justice de Grandpré
in Committee for Justice and Liberty et al v National Energy Board et al,
[1978] 1 S.C.R. 369 at 394, being “what would an informed person, viewing the
matter realistically and practically – and having thought the matter through –
conclude. Would he think that it is more likely than not that [the decision
maker], whether consciously or unconsciously, would not decide fairly.” The
Applicant further submits that because this evidence has not been challenged or
contradicted, the appeal must succeed.
[33]
The
Respondent submits that it is presumed that administrative tribunals act fairly
and without bias and that allegations of bias and misconduct are serious and
should not be taken lightly. The Respondent further submits that the threshold
for the finding of bias is very high and has not been met in this case (Committee
for Justice and Liberty et al v National Energy Board et al; R v S (RD),
[1997] 3 S.C.R. 484; Tchiegang v Canada (Minister of Citizenship and
Immigration), 2003 FCT 249). The Respondent points to the decision of the Federal
Court of Appeal in Es-Sayyid v Canada (Minister of Public Safety and
Emergency Preparedness), 2012 FCA 59, in which the Court cautioned against
unsubstantiated allegations of bias against the Court and public officials
given the harm caused to the administration of justice. The Respondent notes
that there are credibility concerns with the Applicant, as she asserted in her
Affidavit that she answered all of the citizenship test questions correctly
when the record shows that this is not true, and submits that her claims of
bias lack credible basis.
[34]
In
Lin v Canada (Minister of Citizenship and Immigration), 2010 FC 108 at para 23, Justice Zinn
canvassed the presumption that allegations are true, unless there is reason to
doubt their truthfulness:
[23] “[W]hen an applicant swears to the
truth of certain allegations, this creates a presumption that those allegations
are true unless there be reason to doubt their truthfulness”: Maldonado
v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302
at 305 (C.A.). “The ‘presumption’ that a claimant's sworn testimony is
true is always rebuttable, and, in appropriate circumstances, may be rebutted
by the failure of the documentary evidence to mention what one would normally
expect it to mention” [emphasis added]: Adu v. Canada (Minister
of Employment and Immigration), [1995] F.C.J. No. 114 (F.C.A.) (QL) at
para. 1. […]
[35]
In
this case, the Applicant’s affidavit evidence was not challenged by the
Respondent by way of cross examination or by the filing of an affidavit by the
Citizenship Judge denying the allegation of bias. However, there is reason to
doubt the truthfulness of the allegations contained in the Applicant’s
affidavit. As is argued by the Respondent, the Applicant’s claim to have
answered all of the questions on the Citizenship exam correctly is not borne
out by the record. Further, given that the record indicates she failed to
answer two of the questions, she cannot reasonably claim to have mistakenly
stated that she correctly answered every question nor does she make such a
claim. Rather, she contends that the citizenship test is inadmissible, she has
declined to review the test when it was made available by way of the confidentiality
order and relies on her unchallenged affidavit as evidence that she did correctly
answer all of the questions. This undermines the Applicant’s credibility.
[36]
The
Respondent also argues that the Applicant did not raise the issue of bias until
after the Decision was rendered. However, I give less weight to this fact as
it could reasonably be attributed to reluctance to risk alienating the decision-maker
while a decision was outstanding and a positive outcome was anticipated.
[37]
Given
the uncertainty attached to the Applicant’s credibility, and the fact that her
statements are the only evidence on record regarding bias, I find that the
Applicant has failed to meet the high threshold for establishing a reasonable
apprehension of bias.
Costs
[38]
As
to costs, the Applicant refers to Yan v Canada (Minister of Citizenship and
Immigration), 2009 FC 1153 at para 38. There a decision of a citizenship
judge was delayed, without reason, for fifteen months rather than being issued
within sixty days as required by subsection 14(1) of the Citizenship Act.
Costs were awarded because it was held that a failure to comply with a
directory requirement should not be sanctioned. Here the delay was of
approximately sixty days. While this is not condoned or sanctioned, in the
circumstances of this case as a whole I am not prepared to award costs to the
Applicant.
JUDGMENT
THIS
COURT’S JUDGMENT is that the appeal is dismissed and there shall
be no order as to costs.
“Cecily Y. Strickland”
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