Docket: T-2031-13
Citation:
2014 FC 1018
Ottawa, Ontario, October 27, 2014
PRESENT: The
Honourable Mr. Justice Boswell
|
BETWEEN:
|
|
EFAT SALLAHI
|
|
Applicant
|
|
and
|
|
THE
MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Nature of the Proceeding
[1]
The Applicant applied for Canadian citizenship
in April, 2010, but her application was refused by a Citizenship Judge in a
letter dated November 14, 2013. She now appeals that decision pursuant to section
14(5) of the Citizenship Act, RSC 1985, c C-29 [the Act], by way of an
application in this Court under Rule 300(c) (Federal Courts Rules,
SOR/98-106).
[2]
By virtue of section 39 of the Strengthening
Canadian Citizenship Act, SC 2014, c 22, an appeal such as this one, which
was initiated before recent changes to the Act were enacted, must be decided
under the Act as it was on June 18, 2014.
[3]
The Applicant requests that the decision of the
Citizenship Judge be set aside and the matter referred to a different decision-maker
for re-determination.
II.
Background
[4]
The Applicant is an Iranian citizen who was born
in the Town of Sanadaj, Iran, on December 22, 1965. The Applicant became a permanent resident of Canada on June 27, 2005.
[5]
On November 13, 2013, the Applicant appeared before a Citizenship Judge in Toronto. Although the Applicant met all the other
requirements of what was then section 5 of the Act, she did not satisfy
paragraph 5(1)(e), in that she correctly answered only 12 out of 20 questions
on the knowledge test administered pursuant to section 15 of the Citizenship
Regulations, SOR/93-246 [the Regulations]. Since the passing grade was 75%,
or 15 out of 20 questions, she failed the test and the Citizenship Judge denied
her application for citizenship. The Citizenship Judge explained this to the
Applicant in the decision letter dated November 14, 2013.
[6]
That letter also advised the Applicant that,
before deciding not to approve the Applicant’s citizenship application, the
Citizenship Judge, in accordance with section 15(1) of the Act (as it appeared
on June 18, 2014), had considered whether to make a favourable recommendation
under sections 5(3) or 5(4) of the Act. The Citizenship Judge declined to
make such a recommendation and advised the Applicant as follows:
After careful consideration of all the material
before me, including all of the information you filed in support of your
application, I have decided not to make a favourable recommendation for a
waiver under subsection 5(3) or for a discretionary grant of citizenship under
subsection 5(4) as you did not present evidence to me of special circumstances
that would justify me in making such a recommendation.
III.
Issues
[7]
The Applicant submits that there are two issues
to be decided by the Court:
a.
Whether the Citizenship Judge unduly fettered
his discretion under section 5(3) of the Act and thereby rendered a decision
that was unreasonable.
b.
Whether the Citizenship Judge erred in refusing
to recommend an exercise of discretion by the Minister or by the Governor in Council
by ignoring relevant evidence submitted at the hearing by the Applicant.
[8]
In my view, however, the issues before the Court
should be rephrased as follows:
a.
What is the standard of review?
b.
Was the decision of the Citizenship Judge
unreasonable?
IV.
The Parties’ Submissions
[9]
The substance of the Applicant’s argument is
that there was a lot of evidence or factors in her favour by which the
Citizenship Judge should have made a recommendation for a waiver by the
Minister of Citizenship and Immigration [the Minister] under section 5(3) of
the Act, including the following:
a.
her first language is Farsi;
b.
she is working hard to improve her English;
c.
she is the primary caregiver for two minor
children; and
d.
she is an artist who is pre-occupied with
exhibiting her artworks.
The Applicant submits that the Citizenship
Judge should have considered the combined challenges of these factors faced by
the Applicant, but he did not do so. The Applicant argued that these were “special circumstances”, such that the Citizenship Judge
should have recommended an exercise of discretion by the Minister to waive the
knowledge requirement under paragraph 5(1)(e) of the Act.
[10]
The Respondent submits that the Citizenship
Judge made no error. The onus was upon the Applicant to convince the
Citizenship Judge that she met the requirements of the Act, something which she
did not do by failing the knowledge test. The Respondent further contends that
the Citizenship Judge considered all of the Applicant’s circumstances,
including her language ability, and that his decision and determination not to
make a recommendation under section 15(1) of the Act was reasonable.
[11]
The Respondent also takes issue with some of the
exhibits to the Applicant’s affidavit since they were not in the Certified
Tribunal Record. I agree with the Respondent on this issue. For the purposes
of an appeal pursuant to section 14(5) of the Act, this Court, as Strickland J.
stated in Chaudhary v Canada (Minister of Citizenship and Immigration),
2013 FC 1003 at para 14, [2013] FCJ No 1250 (QL) [Chaudhary], “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 [Bhatti]; Woldemariam
v Canada (Minister of Citizenship and Immigration), 2012 FC 621 at
para 14 [Woldemariam]).”
V.
Analysis
A.
What is the standard of review?
[12]
I agree with the parties’ submissions that the
jurisprudence has satisfactorily established that the standard of review in
respect of the Citizenship Judge’s decision is one of reasonableness (Dunsmuir
v New Brunswick, 2008 SCC 9 at paras 53, 62, [2008] 1 S.C.R. 190, [Dunsmuir]; Zhou v Canada (Citizenship and Immigration), 2013 FC 313 at
para 10, [2013] FCJ No 350 (QL) [Zhou]; Arif v Canada (Citizenship
and Immigration), 2007 FC 557 at paras 7-8, [2007] FCJ No 750 (QL).
[13]
This being so, the Citizenship Judge’s decision
should not be disturbed by this Court so long as it is justifiable,
transparent, intelligible, and defensible in respect of the facts and the law (Dunsmuir
at para 47). These criteria are satisfied whenever “the
reasons allow the reviewing court to understand why the tribunal made its
decision and permit it to determine whether the conclusion is within the range
of acceptable outcomes” (Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 16, [2011] 3
SCR 708 [Newfoundland Nurses]).
B.
Was the decision unreasonable?
[14]
I agree with the Respondent that the Citizenship
Judge’s decision was reasonable and should be upheld.
[15]
I see no merit in the Applicant’s argument that,
even though she failed the knowledge test, she was still able to demonstrate a “general understanding” of the chief characteristics of
Canadian political and military history, Canadian social and cultural history
and Canadian physical and political geography.
[16]
An applicant’s “general
understanding” is not assessed abstractly. Rather, under section 15(1)
of the Regulations, applicants are tested “based on their
responses to questions prepared by the Minister”. Although section 15(1)
of the Regulations does not specify that the passing grade for the test is 75%,
that threshold has not been challenged by the Applicant here and, indeed, it
has been respected by this Court (see e.g.: Abrar v Canada (Citizenship and
Immigration), 2014 FC 550 at paras 6, 21, [2014] FCJ No 585 (QL) [Abrar];
Zhou at paras 3, 28-29). The Citizenship Judge found that the Applicant
failed the knowledge test. As noted above, she (like the applicant in Abrar)
correctly answered only 12 out of 20 questions on the knowledge test. It was
reasonable for the Citizenship Judge to deny the Applicant’s application for
citizenship on this basis.
[17]
The Applicant also argued that the Citizenship
Judge “fettered his discretion” under section 5(3) of the
Act. I see no merit in this argument either.
[18]
Firstly, it is the Minister who has the discretion
under section 5(3) of the Act, not citizenship judges. The only discretion the
Citizenship Judge had in relation to that is found in section 15(1) of the Act,
which authorizes a recommendation by a citizenship judge that the Minister
waive the requirements of paragraph 5(1)(e) of the Act “on
compassionate grounds”.
[19]
Secondly, the onus was on the Applicant to bring
any special circumstances or “compassionate grounds”
to the Citizenship Judge’s attention (Abrar, at para 17). Although the
Applicant offered evidence about her special circumstances in her affidavit,
the Respondent correctly pointed out that she does not say that she told the
Citizenship Judge about those circumstances, and there is no other evidence
that she did so.
[20]
The fact of the matter is that the Applicant’s
alleged “special or extenuating circumstances” are
not compelling. Even if the Applicant had told the Citizenship Judge about such
circumstances, her evidence amounts to little more than that she was too busy in
her roles as a mother and an artist to learn enough about Canada and the responsibilities and privileges of citizenship to pass the knowledge test. The
Citizenship Judge’s decision not to make a recommendation under section 15(1) of
the Act was reasonable.
[21]
The Applicant’s situation is not at all like
that of the applicant in Abdule v Canada (Minister of Citizenship and
Immigration), 176 FTR 282 at para 10, 3 Imm LR (3d) 85, where McGillis J. determined
that the citizenship judge should have made a recommendation under section
15(1) of the Act since the citizenship judge had failed to consider or
misapprehended the medical evidence concerning the applicant’s inability to
learn. Nor is the Applicant’s situation like that of the applicants in Bhatti
and Chaudhary. As Gagné J. recently said about those cases in Abrar
at para 16:
[16]… in both of those cases a specific request
was made to the Citizenship Judge to consider special or extenuating
circumstances for which evidence was adduced by the applicant. In addition, it
should be noted that Justice Mandamin’s decision in Bhatti is
essentially based on the inadequacy of the Citizenship Judge’s reasons, and
that, as it was rendered before the Supreme Court’s decision in Newfoundland
Nurses, it may no longer stand as a precedent.
[22]
In the result, therefore, the Court finds that
the Citizenship Judge’s decision in respect of the Applicant’s citizenship
application was reasonable and should be upheld.
Email this Content