Docket: T-1591-14
Citation:
2015 FC 239
Vancouver, British Columbia, February 24, 2015
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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FATEMEH ESKANDARI
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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]
These are the reasons why I indicated to the
parties at the close of the oral hearing of this appeal that it had to be
dismissed.
[2]
This is an appeal of a decision of a citizenship
judge who determined that Ms. Eskandari failed to meet the knowledge
requirement under paragraph 5(1)(e) of the Citizenship Act, RSC 1985 c
C-29, and who further determined that he would not make a recommendation to the
Minister under the Act to waive on compassionate grounds the knowledge requirement
that was not met.
[3]
Ms. Eskandari, her husband, and two daughters
became permanent residents of Canada in July 2006. In February of 2010, Ms.
Eskandari submitted an application for Canadian citizenship. She wrote and
failed a citizenship test on April 28, 2011.
[4]
Ms. Eskandari was sent a Notice to Appear for an
oral hearing before a citizenship judge on August 2, 2012, but it was returned
as she had a change in address. On May 21, 2014, she did appear before a
citizenship judge and she was again tested for her knowledge of Canada and scored 10 out of 20, whereas a passing mark is 15 out of 20.
[5]
The citizenship judge decided not to exercise
his discretion on compassionate grounds under subsections 5(3) or (4) of the
Act, finding that Ms. Eskandari had not presented evidence of special or
unusual hardship or services of an exceptional value to Canada. It is this aspect of the decision that is under appeal.
[6]
Ms. Eskandari submitted to the court that there
were a number of factors that prevented her from doing well on the test. These
include that she has exam phobia and that her mother had a stroke one week
prior to her appearance before the citizenship judge. She also submits that
she is suffering from some physical and mental health problems. She says that
these factors weigh in favour of granting her citizenship.
[7]
The legal framework for citizenship appeals was
recently described by Justice Manson in Desai v Canada (Minister of
Citizenship and Immigration), 2013 FC 194 at paragraphs 7-9:
The applicable standard of review for a
decision of a Citizenship Judge, including discretionary determinations is
reasonableness (Chen v Canada (Minister of Citizenship and Immigration),
2012 FC 874 at paras 10-11; Amoah v Canada (Minister of Citizenship and
Immigration), 2009 FC 775 at para 14).
Citizenship appeals are not trials de novo
and are to be based on the record before the Citizenship Judge (Lama v Canada (Minister of Citizenship and Immigration), 2005 FC 461 at para 21; Hassan v Canada (Minister of Citizenship and Immigration), 2002 FCT 755 at para 10).
Therefore, the Court will only intervene
where there is a lack of justification, transparency and intelligibility or an
unacceptable outcome in light of the facts and law (Dunsmuir v New Brunswick,
2008 SCC 9 at para 47).
[8]
The suggestion that the results may have been
adversely affected because of the various circumstances Ms. Eskandari now
raises were not known to the citizenship judge. Accordingly, they could not
have been taken into account when he was administering the test.
[9]
Similarly, these claims and her history with her
family members, all of whom are now Canadian citizens, were also not before the
judge as a basis upon which he might exercise his discretion to grant
citizenship on compassionate grounds. Accordingly, the citizenship judge
reasonably found that there were no special circumstances to waive the
knowledge requirement.
[10]
For these reasons, this appeal must be
dismissed. Ms. Eskandari is free to reapply for citizenship. The court hopes
that she does and that she makes known in her application all of the
information disclosed to the court in this appeal.
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