Date:
20131001
Docket:
T-1828-12
Citation:
2013 FC 1003
Ottawa, Ontario,
October 1, 2013
PRESENT: The
Honourable Madam Justice Strickland
BETWEEN:
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MUHAMMAD ASAD CHAUDHARY
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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]
Mr.
Muhammad Asad Chaudhary (the Applicant) appeals the decision of Citizenship
Judge Joe Woodward (the Citizenship Judge) denying his application for
citizenship. The basis of the decision was that the Applicant did not meet the
knowledge requirement of subsection 5(1)(e) of the Citizenship Act, RSC,
1985, c C-29 (the Act) and the Citizenship Judge refused to recommend that the
Minister exercise his discretion, pursuant to subsection 15(1) of the Act, to
waive that requirement. This appeal is brought pursuant to
subsection 14(5) of the Act.
Background
[2]
The
Applicant is a citizen of
Pakistan who arrived in Canada on May 6, 2007 and became a permanent resident
that same day.
[3]
On
July 26, 2012, the Applicant appeared at a hearing before the Citizenship Judge
accompanied by his brother Muhammad Zahid Chaudhary who acted as his guardian. At
that time, the Applicant submitted a Citizenship and Immigration (CIC) standard
form, “Request for Medical Opinion” which had been completed by his
psychiatrist on May 29, 2012. This indicated that the Applicant’s medical
condition, including schizophrenia with cognitive deficits, prevented him from acquiring
a general understanding of Canada’s political system, geography and history,
and of the responsibilities and privileges of citizenship (the First Medical
Opinion). Based on this, and pursuant to subsection 5(3) of the Act, the
Applicant requested that the knowledge requirement contained in subsection 5(1)(e)
of the Act be waived on compassionate grounds.
[4]
The
Citizenship Judge requested that the Applicant submit a more detailed medical
opinion, which should include a comment on the permanence of the Applicant’s
medical condition, the details and side-effects of any prescribed medications,
a Global Assessment of Function, a prognosis of his future schooling and career
prospects and any other attending physicians.
[5]
On
August 9, 2013, the Applicant submitted a new standard form “Request for
Medical Opinion”, again prepared by his psychiatrist which provided further details
of his condition (the Second Medical Opinion). By letter dated August 27,
2012, the Citizenship Judge refused the Applicant’s application for Canadian
citizenship and refused to recommend a medical waiver (the Decision).
Decision Under Review
[6]
In
his Decision, the Citizenship Judge informed the Applicant that his application
for Canadian Citizenship was not approved. He stated that:
The
Medical evidence provided for you was not sufficient for me to conclude that
your medical condition is so permanently serious, that you are incapable of
ever acquiring the knowledge of Canada required to satisfy Paragraph
5(1)(e) of the Act […]
[7]
The
Decision sets out the relevant provisions of the Act and the Citizenship
Regulations, SOR/93/246, and states that the Applicant did not meet the
requirements of subsection 5(1)(e) of the Act as, at the hearing, he failed the
knowledge component of the citizenship test, scoring 2 out of 20. The Citizenship
Judge stated that, in accordance with subsection 15(1) of the Act, he had
considered whether to make a favourable recommendation under subsection 5(3)
or 5(4) of the Act. While subsection 5(4) empowers the Governor in Council to
direct the Minister to grant citizenship in cases of special or unusual
hardship, the Citizenship Judge stated that he had been provided with no
evidence of special circumstances to justify such a recommendation of
citizenship.
[8]
The
Citizenship Judge acknowledged that the Applicant had applied for a medical
waiver of the knowledge requirement stating that:
[…]
Subsection 5(3) of the Act confers discretion to the Minister to waive on
compassionate grounds the knowledge requirement that you failed to meet.
Grants of such waivers presuppose however that the Claimant be incapable of ever
satisfying the normal requirements
of
the Act, and it is here that your evidence falls short of justifying my
recommending such a waiver […]
[Emphasis
in original]
[9]
The
Decision describes the evidence given at the hearing and the details of the First
Medical Opinion of the Applicant’s psychiatrist, Dr. Hirst. As to Dr. Hirst’s
Second Medical Opinion, the Citizenship Judge stated:
When
the new documentation arrived after the hearing, however, it was somewhat
incomplete. The
same Dr. Clinton Hirst restated that the Claimant suffers from “schizophrenia
with consequent deficits”. The Claimant’s verbal comprehension is in the 4th
percentile, his working memory in the 18th percentile, and
processing speed in the 5th percentile. He has a current Global
Assessment of Functioning score of 65. The onset of symptoms was in 2007, at
which time medication was initiated. His cognitive deficits “will affect his
ability to support himself”.
However,
despite the fact that the psychiatrist checked off” yes” to the question,
whether the condition is permanent, he did not “comment on permanence of the
condition,” as requested. No record of the medications was provided, as
requested, nor any indication of any side-effects of that medication. There
was no second opinion provided, and no discussion of causes. There was no long
term prognosis for future schooling and career prospects, given a possible
gradual stabilization of the Claimant’s condition and fine-tuning of his
medication.
Decision
I
can only conclude that the lack of conclusive evidence regarding the permanence
of your condition is the consequence of the fact that only three years have
passed since its onset. Certainly your family must hope that that your
condition is not permanent, or that future developments with your medication
will sufficiently alleviate your difficulties…
[Emphasis
in original]
Issues
[10]
In
my view, there is only one issue which arises in this matter being whether the
Citizenship Judge’s refusal to recommend a subsection 5(3) waiver was reasonable.
Standard of Review
[11]
Where
previous
jurisprudence has satisfactorily determined the appropriate standard of review applicable to a
particular issue, that standard may be adopted by a subsequent reviewing court
(Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paras 57, 62
[Dunsmuir]).
[12]
In
this case, prior jurisprudence has determined that the standard of review to be
applied to a
Citizenship Judge’s discretionary determinations under subsections 5(3)
and 5(4) of the Act, is reasonableness (Chen v
Canada (Minister of Citizenship and Immigration), 2012 FC 874 at para 10; Amoah v Canada (Minister
of Citizenship and Immigration), 2009 FC 775 at para 14). On a
reasonableness standard, the Court will only intervene absent justification,
transparency and intelligibility or an unacceptable outcome in light of the
facts and law (Dunsmuir, above at para 47).
Analysis
[13]
As
a preliminary matter, the Respondent takes issue with the admissibility of the medical
evidence filed by the Applicant in support of his appeal which was not before
the Citizenship Judge. The Applicant, who is self represented and whose
brother spoke on his behalf, explains that he did not understand that new
medical evidence could not be submitted on appeal. Further, that he had
provided the Citizenship Judge’s request for further medical information to his
psychiatrist and, until the Decision was issued, had believed that his
psychiatrist had caused all of the necessary information to be submitted.
[14]
I
agree that for the purposes of a subsection 14(5) appeal of the Decision, this
Court can only consider the information contained in the Certified Tribunal
Record that was before the Citizenship Judge when making the Decision (Zhao
v Canada (Minister of Citizenship and Immigration), 2006 FC 1536 at paras
35-36 [Zhao]); Navid Bhatti v Canada (Minister
of Citizenship and Immigration), 2010 FC
25 at para 20 [Navid Bhatti]; Woldemariam v Canada (Minister of Citizenship
and Immigration), 2012 FC 621 at para 14 [Woldemariam]).
[15]
As
to the substantive issue
before this Court, subsection 5(1) of the Act states that the Minister shall
grant citizenship to any person who meets the requirements set out in
subsection (a) to (f) of that provision. Subsection 5(1)(e) requires a person
to have an adequate knowledge of Canada and the responsibilities and privileges
of citizenship. However, subsection 5(3)(a) of the Act states that
the Minister may, in his discretion, waive on compassionate grounds, the
requirements of subsection 5(1)(d) or (e). Subsection 5(4) gives the Minister discretion
to grant citizenship in order to alleviate cases of special and unusual
hardship. Subsection
15(1) of the Act requires a Citizenship Judge to consider whether a
recommendation to the Minister to exercise his or her discretion under
subsection 5(3) or (4) is appropriate before refusing an application. The relevant
provisions of legislation are included in the Annex of this decision.
[16]
In
this case, the Applicant submitted the
required standard form, “Request for Medical Opinion” at his hearing before the
Citizenship Judge in support of his request that the Citizenship Judge exercise
his discretion and recommend that the Applicant be granted a medical waiver of
the knowledge requirement of subsection 5(1)(e) of the Act..
[17]
The
form requires that the patient’s physician answer six questions. In the First
Medical Opinion, Dr. Hirst responded, in answer to question 1, that he had
first examined the Applicant on October 22, 2009. In response to question 2,
that he had last seen the Applicant on May 29, 2012. Question 3 asked “In your
opinion does your patient’s medical condition prevent him/her from a)
acquiring enough knowledge of either English or French in order to be
understood in the community?” Dr. Hirst checked off the “no” box. However, in
response to the second part of that question, being whether the patient’s
medical condition prevented him/her from “b) acquiring a general understanding
of Canada’s political system, geography and history, and of the
responsibilities and privileges of Canada,” he checked the “yes” box.
[18]
As
he answered “yes” to question 3(b), question 4(a) asked him to describe the
medical condition that prevented his patient from acquiring the knowledge
described in that question. Dr. Hirst wrote in the provided space:
Schizophrenia
His
cognitive deficits (ie IQ 73, auditory memory <3% + impaired visual memory)
make it difficult for him to return written or auditory information. These
deficits are exacerbated by schizophrenia.
[19]
Question
4(b) asked “Is the condition permanent?” Dr. Hirst checked off the “yes” box. He
was only required to further specify his response if he answered “no” to that
question.
[20]
Question
5 asked if in the opinion of the physician, his patient suffered from a mental
disability that prevented him or her from a) appreciating the significance of
the oath of citizenship and b) appreciating the consequences of acquiring Canadian
citizenship to which Dr. Hirst checked the “no” box in each case. It was only
if the answer was “yes” to question 5(a) or (b), was the physician required to
respond to question 6. Accordingly, in this case Dr. Hirst did not complete
question 6.
[21]
At
the hearing, the Citizenship Judge provided the Applicant with a form entitled
Medical Opinion Requirements which he had annotated by hand. This required:
•
a formal diagnosis
•
when the
condition developed. And, added by hand, onset and causes, cat scan? MRI’s?
any other attending physicians.
•
when the
condition caused the applicant to become disabled to the point that he/ she
could not learn. Crossed out by hand were the words “or understand the oath”
and inserted by hand was “Canadian political culture”
•
a description
of current treatment. Added by hand was records of prescription
•
when the current
treatment was initiated and
•
whether the
condition prevents the applicant from attending to his/her normal daily
activities and work
If
the condition is psychiatric or psychological in nature, a full report must be
provided which includes both a clarifying report and a “Global Assessment of
Functioning”. Written in hand is “if not available, rough GAT assessment”
In
hand at the top of the form was written by hand “please comment on the permanence
of condition, side-effects of medication, prognosis on future schooling and
career prospects”.
[22]
In
response, Dr. Hirst submitted the Second Medical Opinion. This was the same
standard form, completed in the same manner, but elaborated in response to
question 4:
Schizophrenia
with consequent cognitive deficits:
(ie
verbal comprehension 4th percentile
Working
memory 18th “
Processing
speed 5th “ )
-
onset
of symptoms 2007
-
treatment
includes medication initiated 2007
-
his
cognitive deficits will affect his ability to support himself ie there has been
a psychological decline
-
current
GAF 65
[23]
It
is against this background that the Decision must be considered.
[24]
In
Abdule v Canada (Minister of Citizenship and Immigration), [1999] FCJ No
1524 (QL) (Abdule), Justice McGillis considered whether a citizenship
judge erred in deciding not to recommend an exemption from the knowledge
requirement under the Act. In granting the application, Justice
McGillis wrote the following:
[18] In
outlining her reasons for refusing to make a recommendation for the exercise of
discretion, the citizenship judge noted that the applicant had failed to
provide "any evidence" to establish, among other things, that she had
"a physical disability or disease severe enough to impair the learning
process". However, to the contrary, the applicant had adduced two letters
from a physician outlining medical reasons concerning her inability to learn.
As a result, the statement of the citizenship judge that the applicant had not
adduced "any evidence" establishes unequivocally that she either
failed to consider relevant evidence or misapprehended the evidence before her.
The citizenship judge therefore erred either by failing to consider the medical
evidence or by misapprehending it.
[25]
In
the present case, in addition to the Applicant’s evidence given at the hearing
as to his condition, there was also medical evidence before the Citizenship
Judge. However, the Citizenship Judge found the medical evidence to be
insufficient to conclude that the Applicant’s medical condition is “so
permanently serious” that he was incapable of ever acquiring the required
knowledge of Canada. The Citizenship Judge also stated that the granting of a
waiver presupposes that the Applicant will be incapable of ever satisfying the
normal requirements of the Act and, therefore, the waiver was not justified.
[26]
In
support of this finding, the Citizenship Judge acknowledged that Dr. Hirst
answered “yes” to the question of whether the Applicant’s condition is
permanent. However, he found this answer to be insufficient as the
psychiatrist did not, in addition, “comment on the permanence of the condition,”
as requested by the Citizenship Judge’s hand annotation. In my view, this
finding is perverse and unreasonable. Dr. Hirst twice indicated, on the
standard forms that comprised his First Medical Opinion and his Second Medical
Opinion, that the condition was permanent. That answer is self evident and
complete. Permanent is defined in the Encarta Dictionary as “1. everlasting,
lasting forever or for a very long time, especially without undergoing
significant change 2. unchanging, never changing or not expected to
change”. The Canadian Oxford Dictionary, defines it as “1. lasting or
intended to last or function, indefinitely without change. 2. persistent,
enduring…”
[27]
In
my view, a condition is either permanent or it is not permanent. It cannot be
more permanent or less permanent. Thus, it was reasonable for the psychiatrist
not to further comment on the permanence of the Applicant’s condition as he had
already twice fully responded to the question. Therefore, nothing remained to
be added nor was there anything missing in the response.
[28]
The
Citizenship Judge also noted that there was no record of medications as
requested, or any indication of any side-effects of that medication. It is
correct that Dr. Hirst only indicated that treatment included medication
started in 2007 and did not specify those details. However, the relevant issue
was whether the Applicant’s medical condition prevented him from acquiring a
general understanding of Canada’s political system, geography and history and
of the responsibilities and privileges of citizenship pursuant to subsection
5(1)(e). This was the exact question contained in the Medical Opinion to which
Dr. Hirst twice answered “yes”. Thus, it is not clear why the Citizenship
Judge sought information as to the Applicant’s medication and its side effects as
it would not appear to be relevant nor would be Dr. Hirst’s failure to provide
that information.
[29]
The
Citizenship Judge also states that no second opinion was provided. However, in
his hand annotations he does not require that a second opinion be obtained and
submitted. He merely asks if there were any other attending physicians. Therefore,
in my view, the absence of a second opinion is not a reasonable basis for
concluding that the medical evidence, the credibility of which was not in
question, was insufficient.
[30]
The
Citizenship Judge also complains that there was no discussion of causes as
requested by his annotated request. The Applicant submits that to require an
attending psychiatrist to speculate on the cause of schizophrenia is
unreasonable. To my mind, the absence of an explanation of the cause of
schizophrenia, even if Dr. Hirst could provide it, would add little of
relevance to the medical evidence which sought to respond to the Applicant’s
ability to meet the requirements of subsection 5(1)(e) of the Act given that
his condition is permanent.
[31]
Finally,
the Citizenship Judge states that there was no long term prognosis for future
schooling and career prospects “given a possible, gradual stabilization of the Claimant’s
condition and fine-tuning of his medication”. I have already found that Dr.
Hirst clearly stated, twice, that the Applicant’s condition was permanent. I
would also note that there is nothing in the medical evidence that was before
the Citizenship Judge that suggested a possible gradual stabilization of the
Applicant’s condition or of a “fine tuning” of his medication. This appears to
be speculation on the part of the Citizenship Judge. The medical evidence was
that the Applicant’s condition was permanent, that he suffers from specified
cognitive deficits, that these would affect his ability to support himself and
that he has been in a state of psychological decline.
[32]
As
to the Citizenship Judge’s conclusion that the lack of conclusive evidence
regarding the permanence of the Applicant’s condition is the consequence of the
fact that only three years had passed since its onset, I repeat my comments
above. I would further note that the Second Medical Opinion states the onset of
symptoms was in 2007 predating the Decision by five years. There is no medical
evidence that supports the Citizenship Judge’s conclusion in this regard. I
would also note that no supporting basis was advanced in the Decision or at the
hearing before me for the Citizenship Judge’s interpretation of subsection 5(3),
as requiring that grants of waivers presuppose that a claimant will be
incapable of “ever” satisfying the normal requirements of the Act.
[33]
In
my opinion, the evidence before the Citizenship Judge did not support his finding
that the evidence was insufficient to conclude that the Applicant’s
condition was permanent. There was evidence which supported considering a recommendation
to waive the subsection 5(1)(e) knowledge requirement
(Al-Darawish v Canada (Minister of Citizenship and Immigration), 2011 FC 984 [Al-Darawish]; Navid Bhatti, above). Accordingly,
the Decision is unreasonable as it lacks justification, transparency and
intelligibility and is an unacceptable outcome in light of the facts and law.
[34]
As
regards to the remedy available to the Applicant, the Respondent relies on Zhang
v Canada (Minister of Citizenship and Immigration), [2000] FCJ No 1943 at para
14 (QL) (TD) [Zhang], and submits that this Court does not have
the jurisdiction to grant citizenship, recommend that citizenship be granted or
direct a citizenship judge to make such a recommendation. In Zhang, Justice
Nadon (as he then was) quotes Justice Strayer in Re
Khat (1991), 49 FTR 252 in this regard:
[12] Strayer J then went on to say,
at page 253:
"Section 14(2) provides, however,
that as a precondition to making a decision under that subsection, the
citizenship judge must consider whether or not to make a recommendation under
s. 15(1). While it is not for this court, sitting on appeal, to review the
conclusion of the citizenship judge as to whether a recommendation should be
made, in a proper case it may be open to this court to refer the matter back to
the citizenship judge if this court is not satisfied that relevant factors have
been taken into account in the exercise of that discretion".
[13] […]
[14] With
respect to the first two orders sought by the appellant, I agree with Mr. Justice
Strayer that this Court is without jurisdiction to recommend to the Minister
that she grant citizenship to the appellant, I am further of the view that this
Court cannot direct the Citizenship Judge to recommend to the Minister the
granting of citizenship to the appellant.
[35]
In
Abdule, above,
Justice McGillis allowed
the applicant’s appeal and remitted the matter to the citizenship judge with
the direction that she reconsiders, under subsection 15(1) of the Act, whether
to make such a recommendation.
[36]
Given
this and the
decisions in Al-Darawish and Navid Bhatti, above, I agree with the Respondent
that if, as it has done, the Court determines the Decision to be unreasonable,
then the proper remedy is to remit the matter back to a different citizenship
judge for reconsideration. While the Applicant did not frame the remedy sought
as a request to remit this matter to a different citizenship judge in his
written submissions, he did do so at the hearing. Further this Court has
discretion in this regard (subsection 18.1(3), Federal Courts Act, RSC
1985, c F-7; IMS Health Canada v Maheu, 2003 FCA 462).
[37]
The appeal is granted. The matter is to be remitted back to
another citizenship judge to reconsider whether to make a recommendation that
the Minister waive the knowledge test on compassionate grounds. The reconsideration
should also take into consideration the inclusion of the medical evidence
submitted by the Applicant in support of this appeal, which includes a letter from Dr. Hirst dated September 15, 2012 clarifying his First and
Second Medical Opinions and the Applicant’s medical records obtained from
Alberta Health Services.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
appeal is granted;
2.
The
matter is to be remitted back to another citizenship judge to reconsider
whether to make a recommendation that the Minister waive the knowledge test on
compassionate grounds. The reconsideration should also take into consideration
the inclusion of the medical evidence submitted by the Applicant in support of
this appeal, which includes a letter from Dr. Hirst dated
September 15, 2012 clarifying his First and Second Medical Opinions and the
Applicant’s medical records obtained from Alberta Health Services;
3.
No
order as to costs.
“Cecily Y. Strickland”
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