Docket: T-139-13
Citation:
2014 FC 550
Ottawa, Ontario, June 6, 2014
PRESENT: The
Honourable Madam Justice Gagné
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BETWEEN:
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KOUSAR ABRAR
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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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JUDGMENT AND REASONS
[1]
This is an appeal under subsection 14(5) of the Citizenship Act, RSC, 1985, c
C-29 [Act], section 21 of the Federal Courts Act, RSC, 1985, c F-7, and
Rule 300(c) of the Federal Courts Rules, SOR/98-106 [Rules], from
the decision of a Citizenship Judge, dated October 31, 2012, denying the
applicant’s Canadian citizenship application for failing to meet the knowledge
requirement, pursuant to paragraph 5(1)(e) of the Act. The Citizenship
Judge further considered whether to recommend the exercise of the respondent’s
discretion under subsections 5(3) or 5(4) of the Act, but found that the
applicant had not presented evidence as to any special circumstances or
hardship to justify it.
[2]
The applicant, who represented herself at the
hearing before the Citizenship Judge, argues that she had not been aware that a
request for special relief could be made and that she was not afforded the
opportunity to present such evidence. Had it been the case, she would have
presented medical evidence demonstrating that she suffers from anxiety and
panics attack when in a crowd.
[3]
For the reasons discussed below, this appeal
will be dismissed.
Background
[4]
The applicant, Kousar Abrar, is a citizen of Pakistan who landed in Canada as a permanent resident on August 14, 2006. Her application for
Canadian citizenship was received by Citizenship and Immigration Canada on
September 29, 2010.
[5]
The Certified Tribunal Record shows that the
applicant failed the written test administered by the Immigration Officer and
that as a consequence, she was referred to a Citizenship Judge for a hearing
that was held on October 31, 2012. At the hearing, the Citizenship Judge
administered an oral knowledge test.
[6]
By letter dated October 31, 2012, the
Citizenship Judge notified the applicant that her citizenship application was non-approved,
as she failed to demonstrate through her responses to the test questions the
requisite knowledge of Canada and of the responsibilities and privileges of
citizenship as per paragraph 5(1)(e) of the Act. The applicant had
answered 12 out of 20 questions correctly thereby failing to obtain the
required passing grade of 75%.
[7]
The Citizenship Judge further explained that, as
he found the applicant to have failed the knowledge requirement under paragraph
5(1)(e) of the Act, he proceeded, in accordance with subsection 15(1),
to consider whether to make a favourable recommendation to the Minister of
Citizenship and Immigration [Minister] to exercise his discretion to grant
citizenship under subsections 5(3) or 5(4) of the Act. Upon the review and
assessment of all of the applicant’s materials before him, including the
supporting information filed by her, the Citizenship Judge found that the
applicant failed to present sufficient evidence of any compassion-worthy circumstances
or special hardship warranting a favourable recommendation.
Issues and Standard of Review
[8]
The respondent raises a preliminary argument,
objecting to the introduction of the applicant’s affidavit, as it fails to
conform to Rule 80(2.1) of the Rules, which requires a jurat in a prescribed
form to be appended to an affidavit by someone who does not speak English or
French. The respondent argues that the applicant’s affidavit, as it has no
translator’s jurat attached, should carry little or no weight (Liu v Canada (Minister of Citizenship and Immigration), 2003 FCT 375 at paras 9-13; Velinova v Canada (Minister of Citizenship and Immigration), 2008 FC 268). Considering that the
facts found in her affidavit form the heart of this judicial review, adds the
respondent, her appeal ought to be dismissed.
[9]
While I agree that the facts found in the
applicant’s affidavit are crucial for this appeal, I have a hard time
understanding how she passed the language requirement for citizenship, as set
forth in paragraph 5(1)(d) of the Act, if she does not somewhat
understand English. Under those circumstances, I will exercise the discretion
granted to me by section 3 of the Rules and accept the applicant’s affidavit,
as it is in the interest of justice to do so (Zaldana v Canada (Minister
of Citizenship and Immigration), 2013 FC 1156).
[10]
That said, this appeal raises the issue as to whether
the Citizenship Judge’s decision was reasonable, in that:
i) it was not based on an erroneous
finding of fact made in a perverse or capricious manner or without regard to
the evidence before him; and
ii) the Citizenship Judge’s reasoning was
adequate.
[11]
The applicant argues that the standard of review
for adequacy of reasons is correctness (Pourzand v Canada (Minister of Citizenship and Immigration), 2008 FC 395 at para 21). However,
since the decision of the Supreme Court of Canada in Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62 [Newfoundland Nurses], the adequacy of reasons is to be subsumed
under an analysis of reasonableness. As such, the respondent argues that the
decision is only amenable to judicial review in the following instances: if the
applicant demonstrates that the written reasons preclude understanding of how
the Citizenship Judge arrived at his final determination; if the decision has
no basis in the evidence; and if the reasons exclude the result from the range
of acceptable, rational and possible outcomes.
[12]
Consequently, the applicable standard of review for
the issue raised by this appeal is reasonableness. The law is well established
that a Citizenship Judge’s findings with regard to the adequacy of an
applicant’s knowledge of Canada, as well as his decision to recommend a waiver
by the Minister under subsection 5(3) or 5(4) of the
Act, are to be accorded a substantial degree of deference (Zhou v Canada
(Minister of Citizenship and Immigration), 2013 FC 313 at paras 10-11).
Analysis
[13]
The applicant argues that at the oral interview,
the Citizenship Judge failed to ask her to present evidence of her special
circumstances, which could justify a positive recommendation under subsections
5(3) or 5(4) of the Act. The applicant states that she suffers from anxiety and
panic attacks, which not only affected her test performance, but rendered
her unable to raise these issues on her own. The applicant filed
medical letters to support her affidavit, which note her health problems. She
also further submits that, in addition to her health problems, she raises and
cares for her five children (three still being under 18 years of age), as well
as works a full time job. These special circumstances warrant a discretionary
granting of citizenship. None of this evidence was before the Citizenship
Judge.
[14]
In support of her position, the applicant cites two
cases: Navid Bhatti v Canada (Minister of Citizenship and Immigration),
2010 FC 25 [Bhatti] and Chaudhary v Canada (Minister of Citizenship
and Immigration), 2013 FC 1003 [Chaudhary]. In both cases, the Court
granted the applicant’s appeal as the Citizenship Judge failed to consider
evidence that was before him.
[15]
As for the respondent, he considers the
Citizenship Judge’s decision to be reasonable, reminding the Court that a grant
of citizenship from a country where one was not born is a privilege, not a
right (Arif v Canada (Minister of Citizenship and Immigration), 2007 FC
557). An ability to have a basic fundamental knowledge of the history,
political structure, and characteristics of Canada are reasonable requirements
to be granted the privilege of citizenship.
[16]
The applicant’s situation differs from that of
the applicants in Bhatti and Chaudhary, as in both these 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.
[17]
The applicant bears the onus of satisfying the
Citizenship Judge with sufficient evidence that she fulfils all the
requirements under the Act or that her circumstances warrant an exercise of the
Minister’s discretion. The evidence of any special or extenuating circumstances
must be brought to his attention before or at the time of the hearing—not after
the decision has been made. I reproduce Justice Harrington’s reasons on these
criteria in full (Huynh v Canada (Minister of Citizenship and Immigration),
2003 FC 1431):
[5] All this
information was available to Mrs. Huynh when she applied for Canadian
citizenship. One of the boxes in the form required her to state
"yes" or "no" whether she had special needs and if so, to
explain. Mrs. Huynh, who was not represented by counsel at that time,
indicated that she had no special needs. Consequently the Citizenship Judge
can hardly be criticized for not considering whether to make a recommendation
to the Minister to grant Mrs. Huynh's citizenship on compassionate grounds on
material which was not before him.
[6] However, Mrs.
Huynh submits that the process is unfair. If the Applicant does not fare well
on the writing test, she is called to appear in person before a Citizenship
Judge. The forms do not specifically state that she is entitled to bring
material which would at least give rise to the consideration of humanitarian
issues. The imperfections of the forms were noted by Gibson J. in Maharatnam v.
Canada (Minister of Citizenship and Immigration), [2000] F.C.J. 405. He said,
and I agree, that since "most applicants appear before a Citizenship Judge
without counsel, and are likely to be unfamiliar with the existence of
humanitarian and compassionate discretion, in the interests of fairness, it
might be useful to include a brief notice regarding the existence of discretion
in the "NOTICE TO APPEAR"".
[7] I am sure that
in fact Mrs. Huynh was not fully aware of her legal rights. However, in law she
is deemed to have as much knowledge as the Minister (Anticosti Shipping Co. v.
Saint-Amand, 1959 CanLII 61 (SCC), [1959] S.C.R. 372). [Emphasis added]
[18]
The applicant’s factual situation mirrors that
of Mrs. Huynh rather closely. She had not retained counsel. She failed to make
the Citizenship Judge aware, by way of a doctor’s note or other evidence, that
her medical condition and other demanding personal circumstances impeded her
ability to study and perform well on knowledge tests. Similarly, it was
incumbent on the applicant to alert the Citizenship Judge to her struggles with
anxiety and intimidation during the citizenship interview. Finally, in her
application for citizenship, she checked off “No” in response to the question
about any special needs (Certified Tribunal Record at page 17). There was
simply no way for the Citizenship Judge or anyone to know of these special
circumstances.
[19]
With respect to the adequacy of reasons, the
applicant argues that subsection 14(3) of the Act requires the Citizenship
Judge to provide more detailed reasoning in denying her application. She cites
Canada (Minister of Citizenship and Immigration) v Li, 2008 FC 275 at
para 6 for the proposition that the reasons must be sufficient to enable the
appeal court to discharge its appellate function. With respect, in that case Justice
Blanchard was discussing the following factual scenario:
[7] In the instant
case, the Notice of the Decision to the Minister, under the heading “Reasons”, is
left entirely blank. Since there are no other statements or endorsements
which explain the Citizenship Judge’s thought process, I am left to conclude
that the Judge failed to discharge his duty under subsection 14(2) of
the Act. […] [Emphasis added]
[20]
The applicant also argues that the Citizenship
Judge failed to specifically note how he found her answers to his oral test
inadequate. This is all the more the case since the Minister has not released
the test.
[21]
In communicating the negative decision to an
applicant, a Citizenship Judge is required to explain the criteria used to find
the applicant lacking adequate knowledge of Canada and to specify the
percentage of correct test answers necessary to satisfy the requirement of
paragraph 5(1)(e) of the Act (Abdollahi-Ghane v Canada (Attorney General),
2004 FC 741 at para 23). In the case at bar, the Citizenship Judge did just
this.
[22]
It was the Minister who refused to disclose the
questionnaire when it filed the Certified Tribunal Record in this Court. I
agree with the respondent that since the applicant never objected to the refusal
of the Minister to provide her with her test answers, she cannot now submit
that the Citizenship Judge erred in failing to explain the questions put to the
applicant (Liu v Canada (Minister of Citizenship and Immigration), 2008
FC 836 [Liu]). The burden was on her to establish any error on the part
of the Citizenship judge. As Justice Dawson explains in Liu:
[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. […]
[…]
[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. […]
[23]
In conclusion, the Court finds that the
applicant has failed to identify any basis upon which her appeal could be allowed.
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