Docket: T-19-15
Citation: 2015 FC 1036
Ottawa, Ontario,
September 1, 2015
PRESENT: The Honourable Mr. Justice Manson
BETWEEN:
NAFISEH ZARANDI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
[1]
This is an application for judicial review of
the refusal of the Applicant’s application for Canadian citizenship under
section 5 of the Citizenship Act, 1985, c C-29. The Applicant seeks to
set aside the decision of a Citizenship Judge for failing to provide satisfactory
proof of her residence in Canada.
I.
Background
[2]
The Applicant is a citizen of Iran and became a
permanent resident of Canada on August 3, 2007. She applied for Canadian
citizenship in February 2012. The relevant residency period was from February
2, 2008 to February 2, 2012. In her application for Canadian citizenship, the
Applicant declared a total of 322 days of absences from Canada for a claimed
physical presence of 1138 days.
[3]
On March 11, 2013, the Applicant was sent a
residency questionnaire [RQ] that was to be completed and returned to the CIC
office in Vancouver. The RQ directed the Applicant to provide full copies of
all pages of expired passports and travel documents. It also specified that all
foreign stamps need to be translated into English or French by a certified
translator. The Applicant failed to respond to this request.
[4]
By letter dated February 26, 2014, the Applicant
was sent a “LAST NOTICE” requesting the completed RQ, additional documentary
evidence and certified translations of her passports in support of her
application for citizenship.
[5]
The Applicant, with the assistance of her
designated representative, Mohammad Rouhi, submitted a completed RQ, a
photocopy of the bio-pages from the Canadian passports belonging to her husband
and their two children and a copy of a property tax bill. The Applicant did not
include copies of pages of her passport and travel documents, nor translations
of foreign stamps, as requested. No other supporting documentation was
submitted.
[6]
On August 19, 2014, Citizenship Officer E. Ko
conducted a review of the Applicant’s file and prepared a CIT 0509 – File
Preparation and Analysis Template – Long form. The Officer concluded: “There is insufficient documentary evidence provided by the
[sic] Ms. Zarandi on file to determine if she meets residence requirements as
per 5(1)(c) […] I recommend a residence hearing with a Citizenship Judge”.
The Officer also remarked:
The Citizenship Language Screening Tool
(CLST) was completed in the process of interviewing the client. She
demonstrated a minor inability of basic grammar [sic] and use of past tense.
When asked “How did you learn English?” she responded “I at home”. […] It is
apparent that her low language skills inhibited her ability to communicate
clearly at the interview. I recommend a language hearing for this application.
[7]
On November 27, 2014, the Applicant appeared
before a Citizenship Judge. The Citizenship Judge reviewed the Applicant’s
documents and answers to her questions given at the hearing, and reached the conclusion
that she did not meet the requirements of the Citizenship Act. In
addition, the Citizenship Judge decided that her case did not warrant making a
favourable recommendation for the use of discretion.
[8]
By letter dated December 23, 2014, the Citizenship
Judge advised the Applicant of her decision and gave the following reasons for
not approving the Applicant’s application for citizenship:
a)
the information provided by the Applicant did
not accurately reflect the number of days that she was physically present in
Canada;
b)
there was insufficient objective evidence to
establish the Applicant’s residence in Canada during the relevant time period;
c)
the pattern of physical presence clearly
indicated a returning home to Iran and not to Canada;
d)
the Applicant was not employed when she was in
Canada and did not do any community or volunteer work, or engage in any groups
or organizations;
e)
the Applicant did not declare all of her
absences from Canada during the relevant period and a number of her declared
absences were incorrect.
[9]
According to the testimony of the
Applicant, the citizenship hearing ended up being a fundamentally unfair
proceeding. Allegations have been made that during the hearing, the Citizenship
Judge was belligerent and belittling towards both the Applicant and her
counsel, creating a hostile hearing environment. It is alleged that the Citizenship
Judge curtailed the Applicant’s counsel’s ability to speak in the hearing and
thereby impaired, if not terminated, his ability both to translate for the
Applicant and to act as counsel on her behalf. After the hearing was concluded,
the Applicant’s counsel wrote to the Citizenship Judge the next day to complain
about the Citizenship Judge’s conduct at the hearing.
[10]
The Respondent did not cross-examine the Applicant
on her affidavit or submit rebuttal evidence, but the Citizenship Judge stated
in the last full paragraph of her decision:
As a final matter, I would like to address
certain concerns raised in Mr. Rouhi’s letter dated November 28, 2014 (received
in my office December 4, 2014). First, he argued that the evidence supported a
finding that the Applicant’s physical presence exceeded 1095 days. I do not
agree and the deficiencies in Mr. Rouhi’s analysis of the evidence concerning
the Applicant’s absences during the relevant period have been fully canvassed
above. Second, I regret that the Applicant and her consultant found the hearing
to be a difficult experience. However, I note that the Applicant’s responses
were consistently vague and often contradictory which required me to repeat
many questions. I explained the material gaps in the Applicant’s documentary
evidence several times during the hearing yet neither the Applicant nor her
consultant were responsive to the questions raised by such gaps. In large measure
because of the apparent difficulty evidenced by the Applicant and her
consultant in understanding this evidence, a hearing that was scheduled for the
customary one and one half hours in fact continued for two hours. Further, the
Applicant was given the opportunity to add any additional comments or thoughts
at the end of the hearing.
[11]
The Applicant asserts that the Citizenship Judge’s
decision was unreasonable, that there is a reasonable apprehension of bias by
the Citizenship Judge against her, and that the hearing was procedurally
unfair.
II.
Issues
[12]
The issues in the present application are as
follows:
- Did the Applicant satisfy the requirement
prescribed under section 5(1)(c) of Citizenship Act?
- Did the Citizenship Judge deny the
Applicant her right to an interpreter and counsel, such that the citizenship
hearing and decision was procedurally unfair?
- Did the Citizenship Judge demonstrate a
reasonable apprehension of bias?
III.
Standard of Review
[13]
The determination of sufficient residency by a Citizenship
Judge is reviewable on a standard of reasonableness (Kohestani v Canada
(Minister of Citizenship and Immigration), 2012 FC 373 at para 12).
[14]
The issues of procedural fairness, including an
apprehension of bias, are reviewable on a standard of correctness (Khosa v
Canada (Minister of Citizenship and Immigration), 2009 SCC 12 at para 43; Malik
v Canada (Minister of Citizenship and Immigration), 2009 FC 1283 at para
23; Fletcher v Canada (Minister of Citizenship and Immigration), 2008 FC
909 at paras 6-8).
IV.
Analysis
[15]
For the reasons that follow, I find that the
Applicant was denied a procedurally fair hearing and that the application for
judicial review is allowed.
[16]
Attached as Annex A is the relevant legislation.
A.
Preliminary Evidentiary Issues
[17]
Let me first deal with several evidentiary
issues raised by the Applicant:
- The Applicant’s position is that the
affidavit of the Applicant, Ms. Zarandi, sworn February 4, 2015, must be
taken as true and accepted at face value, given there was no attempt to
cross-examine her on her affidavit (Mei v Canada (Minister of
Citizenship and Immigration), 2009 FC 1040 at para 6; Zhen v Canada
(Minister of Citizenship and Immigration), 2006 FC 408 at para 9). I
agree. However, the presumption of truthfulness may be rebutted if facts
on the record indicate credibility issues or other failures to provide
sufficient evidence that would be expected to be provided in a particular
case (Lin v Canada (Minister of Citizenship and Immigration), 2010
FC 108 at para 23).
- The Applicant also argues that the Citizenship
Judge’s notes are not admissible as proof of their truth or content and
cannot be used to establish controversial facts to the facts alleged in
Ms. Zarandi’s affidavit; the notes can only be used to prove the state of
the Citizenship Judge’s mind at the time of the interview, as they are not
provided as affidavit evidence (Kovacs v Canada (Minister of
Citizenship and Immigration), 2003 FCT 167 at paras 9-10). The
Respondent argues that the notes are admissible, as part of the Certified
Tribunal Record. I agree with the Respondent. Rule 17 of the Federal
Courts Citizenship and Immigration Refugee Protection Rules governs
the production and admissibility of material in the tribunal’s possession.
The Court will decide what weight should be given to the material within
the certified tribunal record.
- The Applicant asks the Court to give
weight to the allegations of fact in the letter submitted by the
Applicant’s agent, Mohammad Rouhi, dated November 28, 2014. This letter is
provided as unsworn evidence, uses highly inflammatory language, and is
not admissible as to the truth or content of the letter, as it does not
meet the hearsay evidence admissibility requirement of being necessary and
reliable.
B.
Did the Applicant satisfy the requirement
prescribed under section 5(1)(c) of Citizenship Act?
[18]
Three tests for meeting residency requirement
under section 5(1)(c) have been used by this Court and the Citizenship Judge
has discretion to apply any one of those three tests. Here, the Citizenship
Judge adopted the test set out in Re Koo, [1993] 1 FC 286 at para 10.
The Koo test requires a citizenship judge to determine whether Canada is
the place where the applicant “regularly, normally or
customarily lives”. Another formulation of the same test is whether
Canada is the country in which he or she has centralized his or her mode of
existence. Questions that assist in such a determination are:
(1) Was the individual physically present in
Canada for a long period prior to recent absences which occurred immediately
before the application for citizenship?
(2) Where are the applicant's immediate
family and dependents (and extended family) resident?
(3) Does the pattern of physical presence in
Canada indicate a returning home or merely visiting the country?
(4) What is the extent of the physical
absences? If an applicant is only a few days short of the 1,095-day total it is
easier to find deemed residence than if those absences are extensive.
(5) Is the physical absence caused by a
clearly temporary situation such as employment as a missionary abroad,
following a course of study abroad as a student, accepting temporary employment
abroad, accompanying a spouse who has accepted employment abroad?
(6) What is the quality of the connection
with Canada: is it more substantial than that which exists with any other
country?
[19]
The Citizenship Judge gave a negative decision
in response to all six of these questions. The Applicant had not accumulated at
least three years of residence in Canada in the four years immediately
preceding the date her application was received by the Citizenship Court, as
required by section 5(1)(c) of the Act, did not show a central, quality
connection to Canada, and nor could the Citizenship Judge exercise her
discretion to approve the application based on humanitarian or compassionate
grounds.
C.
Did the Citizenship Judge deny the Applicant her
right to an interpreter and counsel, such that the Citizenship hearing and
decision was procedurally unfair?
[20]
It is not disputed that the Applicant was
entitled to an interpreter (R v Tran, [1994] 2 S.C.R. 951 at para 77 [Tran];
Indran v Canada (Minister of Citizenship and Immigration), 2015 FC 412
at para 12 [Indran]).
[21]
The Applicant argues that given the Citizenship
Judge’s interference with her interpreter and counsel during the course of her
hearing, his ability to serve as her interpreter was effectively extinguished
early on in the hearing. As such, the Applicant’s failure to understand and fully
reply to the Citizenship Judge’s questions led to an unfair hearing given her inability
to meaningfully participate in the proceeding.
[22]
According to the Applicant’s uncontested
evidence, the Applicant’s interpreter, Mr. Rouhi, was:
- prohibited from speaking unless he was
being directly looked at by the Citizenship Judge;
- repeatedly stopped from speaking
throughout the course of the interview; and
- constantly prohibited from providing
translation services in all but three instances.
[23]
The Applicant also states that the Citizenship
Judge’s own observations during the course of the hearing indicate that the
Applicant had trouble understanding and communicating, as did her interpreter
and counsel, Mr. Rouhi. As such, there was no “continuous,
precise, competent, impartial and contemporaneous interpretation, which the
Applicant was entitled to, during the hearing” (Mohammadian v Canada
(Minister of Citizenship and Immigration), 2001 FCA 191 at para 4; Tran,
above, at paras 58-67).
[24]
The Applicant further argues that if the Citizenship
Judge believed that the interpreter, Mr. Rouhi, was at fault as not being
capable as an interpreter, then the Citizenship Judge should have rescheduled
the hearing until a competent interpreter could be engaged by the Applicant (Indran,
above, at paras 10-13; Kalkat v Canada (Minister of Citizenship and
Immigration), 2012 FC 646 at paras 46-48).
[25]
Finally, the Applicant takes the position that
this is not a case where the rationale of Mobil Oil Canada Ltd v
Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202 at para 53,
can apply: this is not a case where the matter on redetermination, being a
question of fact as to whether the Applicant’s centralized mode of living is in
Canada or not, is a “particular kind of legal question,
viz., one which has an inevitable answer” and “the
demerits of the claim are such that it would in any case be hopeless”. I
agree.
[26]
The Respondent’s position is that the Applicant
had a fair and meaningful hearing and was represented by her interpreter and
counsel, Mr. Rouhi. The fact that Mr. Rouhi proved not to be effective or
persuasive as her representative does not result in a denial of procedural
fairness.
[27]
In my opinion the Applicant was denied
procedural fairness. While the right to counsel is not guaranteed in
citizenship hearings, the right to continuous and contemporaneous interpretation
is a fundamental right and is necessary for ensuring a full and fair hearing.
[28]
Mr. Rouhi was at the hearing to both represent
and interpret for the Applicant. The Applicant’s evidence describes a hearing
where Mr. Rouhi was repeatedly stopped from speaking throughout the interview
and was prohibited from providing translation services. Clearly, this would
impede his ability to translate. Without his translation, the Applicant – who
had “low language skills” that inhibited her ability to communicate clearly –
was unable to meaningfully participate, a requirement for procedural fairness.
[29]
The Citizenship Judge notes that she provided an
additional 30 minutes for the hearing, and provided an opportunity to provide
comments at the end. One wonders, though, realistically how effective this
would have been to rectify the procedurally unfair hearing to that point. It
clearly did not provide the interpreter with an opportunity to clear up
misunderstandings that had occurred over the previous two hours.
D.
Did the Citizenship Judge demonstrate a
reasonable apprehension of bias?
[30]
As stated above, I give no weight to the letter
of Mr. Rouhi, given the letter amounts to unsworn statements which are neither
reliable nor necessary. Ms. Zarandi’s affidavit also makes serious allegations
of misconduct on the part of the Citizenship Judge, resulting in a reasonable
apprehension of bias – this is a question of procedural fairness. I must decide
whether the process followed by the Citizenship Judge satisfied the level of
fairness required (Khosa v Canada (Citizenship and Immigration), 2009
SCC 12 at para 43).
[31]
Ms. Zarandi alleges that the Citizenship Judge
was belligerent and belittling towards both the Applicant and her counsel,
creating an “intensely hostile hearing environment”.
It is the Applicant’s position that the Citizenship Judge’s conduct shows
antagonism and open hostility towards the Applicant and her counsel throughout
the proceeding, effectively denying the Applicant her right to her interpreter
and counsel, and repeatedly berated her for not understanding the questions put
forward, or for providing vague or nonsensical responses.
[32]
Given that the Applicant’s affidavit regarding
the conduct of the Citizenship Judge is uncontroverted, and the Respondent
elected not to cross-examine her on her affidavit, the Applicant states that I
must accept this evidence.
[33]
As stated by Justice Mactavish in Shahein v
Canada (Minister of Citizenship and Immigration), 2015 FC 987 at paras
19-21:
[19] The test for determining whether
actual bias or a reasonable apprehension of bias exists in relation to a
particular decision-maker is well known: the question for the Court is what an
informed person, viewing the matter realistically and practically - and having
thought the matter through - would conclude. That is, would he or she think it
more likely than not that the decision-maker, either consciously or
unconsciously, would not decide the matter fairly: see Committee for Justice
and Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978]
1 S.C.R. 369, at p. 394, 68 D.L.R. (3d).
[20] Dr. Shahein notes that the
evidence in his affidavit regarding the conduct of the Citizenship Judge is
uncontroverted, and that the respondent elected not to cross-examine him on his
affidavit. As a consequence, Dr. Shahein submits that I must accept his
evidence on this point. I do not agree.
[21] An allegation of bias, especially
an allegation of actual, as opposed to apprehended, bias, is a serious
allegation. Indeed, it challenges the very integrity of the adjudicator whose
decision is in issue. As a consequence, the threshold for establishing bias is
high: R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at
para. 113, 151 D.L.R. (4th) 193.
[34]
This approach to questioning whether an apprehension
of bias exists has been considered by Justice Zinn as well, in Fletcher v
Canada (Minister of Citizenship and Immigration), 2008 FC 909 at paras 6-8:
6 Allegations
of an apprehension of bias must be examined within the context of challenges to
the right to procedural fairness. As the Supreme Court of Canada noted in Baker
v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817,
"the more important the decision is to the lives of those affected and the
greater its impact on that person or those persons, the more stringent the
procedural protections that will be mandated". I can think of few
processes more important to the lives of immigrants to Canada than the
citizenship process.
7 The other
four factors discussed in Baker - the closeness to the judicial process, the
nature of the statutory scheme, the expectations of the parties, and the
choices of procedure made by the decision-maker - do not suggest that in the
citizenship process the applicant is to be afforded less than a high degree of
procedural fairness.
8 The burden
of showing that there is a reasonable apprehension of bias is on the party who
alleges it. While that burden may be high, the Court must not hesitate to find
that the allegation has been made out where the facts warrant, even in
circumstances where the result reached was reasonable and appropriate based on
the facts. The issue is a party's right to receive procedural fairness; not the
decision reached.
[35]
As well, in Zhou v Canada (Minister of
Citizenship and Immigration), 2013 FC 313 at paras 34, 35, 37, Justice
Strickland found:
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.
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.
[36]
Given the many credibility concerns raised not
only by the Citizenship Judge, but also by Officer Ko during his interview with
the Applicant, I do not find that there was any basis for actual bias or a
reasonable apprehension of bias.
THIS
COURT’S JUDGMENT is that:
1.
The application is allowed and the Applicant’s
citizenship application is remitted to a different citizenship judge for re-determination;
2.
No costs.
"Michael D. Manson"
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