Docket: T-1953-14
Citation:
2015 FC 412
Vancouver, British Columbia, March 31, 2015
PRESENT: The
Honourable Mr. Justice Mosley
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BETWEEN:
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VIJAYAKUMARI INDRAN
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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]
The sole issue in this matter is whether the
applicant was denied procedural fairness in an interview with a Citizenship
Judge. For the reasons that follow, I find that she was not treated unfairly
and that the application must be dismissed.
I.
Facts
[2]
The applicant, Mrs Indran is a Tamil-speaking
citizen of Sri Lanka. She first entered Canada in 1998 and became a permanent
resident in 2008. Her husband is a Canadian citizen. On July 9, 2012,
Citizenship and Immigration Canada [CIC] received Mrs Indran’s application for
citizenship.
[3]
Paragraph 5(1)(e) of the Citizenship Act,
RSC 1985, c C-29 [the Act], establishes a knowledge requirement for a grant of
Canadian citizenship. A candidate must have an adequate knowledge of Canada and of the responsibilities and privileges of citizenship. Subsections 15(1) and
15(2) of the Citizenship Regulations, SOR/93-246, list various subjects
relevant to the knowledge requirement such as the chief characteristics of
Canadian history, geography and our system of government.
[4]
Mrs Indran failed her first two attempts at the
written knowledge test in November 2012 and July 2013. On July 16, 2014, she
attended a hearing with a Citizenship Judge for a third try at the test. This
time, it was administered orally. The test consists of 20 questions and the
pass mark is 75% (15 questions answered correctly out of 20).
[5]
Mrs Indran had been notified that she could
bring an interpreter. She brought her husband, who speaks English better than
she does and had already qualified for citizenship. He signed an
interpreter’s oath before the hearing began.
[6]
According to Mrs Indran, her husband experienced
some difficulty in translating the questions spontaneously. She alleges that
the Citizenship Judge suspected that her husband was telling her the answers
and cautioned him several times that this was forbidden, threatening
to eject him from the hearing if he continued. Mrs Indran further alleges
that her husband eventually stopped translating altogether. It is undisputed
that the Citizenship Judge administered the entire test to Mrs Indran and that
she failed again, answering correctly only 6 questions out of 20. As she
erred in answering 6 of the first 7 questions, she failed as soon as she
answered question 7 incorrectly.
[7]
The results were conveyed to her in a decision
letter dated July 22, 2014. The applicant was advised of her right to appeal
the decision or to reapply. The Citizenship Judge further stated that she would
not make a favourable recommendation under subsections 5(3) or 5(4) of the Act,
as there was insufficient evidence of special circumstances that would justify
such a recommendation.
[8]
There is no record of the oral test other than
the question and answer sheet which bears the Citizenship Judge’s notations
about the answers provided and whether they were correct or not. The applicant
submitted an affidavit. She was cross-examined by counsel for the respondent
and the transcript was filed in evidence. Neither the husband nor the
Citizenship Judge provided affidavit evidence as to what occurred during the
test.
II.
Standard of Review
[9]
Procedural unfairness is reviewable on the
standard of correctness: Dunsmuir v New Brunswick, 2008 SCC 9 at para
129; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at
para 43; Mission Institution v Khela, 2014 SCC 24 at para 79. If
the Court is of the view that the Citizenship Judge behaved unfairly, it must
grant the application for judicial review.
III.
Analysis
[10]
The applicant argues that her right to
procedural fairness was breached in two ways. First, the Citizenship Judge
interfered with her right to interpretation during the hearing without just
cause. Second, the Citizenship Judge did not follow the procedure of suspending
the hearing and directing the applicant to return with a different interpreter
on a rescheduled date, as is required in circumstances where interpretation is
problematic.
[11]
Candidates for Canadian citizenship may have
legitimate expectations, as the applicant argues, that Citizenship Judges will
follow the guidance provided by the CIC policy manual prescribing procedures
for citizenship hearings (CP 13 Administration, dated 2008-01-17). This was
accepted in Hernandez v Canada (Minister of Citizenship and Immigration),
2005 FC 429 at para 67 (albeit in the context of inadmissibility reports) and
is consistent with the principles set out by the Supreme Court in Baker v
Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paras
26-27 and Agraira v Canada (Public Safety and Emergency Preparedness),
2013 SCC 36 at paras 93-98.
[12]
Section 3 of the manual pertains to the use of
interpretation. It recognizes that applicants have the right to an interpreter
pursuant to section 14 of the Canadian Charter of Rights and Freedoms
and section 2(g) of the Canadian Bill of Rights. Section 3.7 provides
that the decision to permit an interpreter at a hearing rests with the
Citizenship Judge. It goes on to state:
The citizenship
judge, at any time during a hearing or ceremony, or a citizenship officer, at
any time during an interview, may decide to suspend the proceedings if the
judge/officer feels that the interpreter is not providing a faithful
interpretation of the questions asked or the answers provided by the client.
The appointment will be rescheduled and the client will be directed to provide
a different interpreter.
[13]
The CIC website provides similar information. It
explains that a Citizenship Judge or Officer “has the
discretion to stop the proceedings if they feel that the interpreter is not
providing a faithful interpretation… The appointment will be rescheduled and
the client will be directed to provide a different interpreter.”
[14]
The applicant argues that the Citizenship Judge
took hesitation and pauses as signals that misconduct was occurring. She says
that her husband explained that he was having difficulty finding the right
words. He then stopped interpreting entirely, which prevented her from properly
understanding and answering the questions.
[15]
Even if the Citizenship Judge had reasonable
suspicions, the applicant submits, she should have followed CIC’s policy of
suspending and rescheduling the hearing to allow the applicant to find a
qualified interpreter. Such recourse would strike a proper balance between the applicant’s
right to a fair hearing and the Minister’s interest in ensuring honest
examinations. Instead of following this protocol, the Citizenship Judge moved
forward with the examination – even though the husband had stopped interpreting
due to her admonitions. This infringed the applicant’s right to interpretation.
[16]
I agree with the respondent that the evidence is
not sufficient to support the applicant’s allegations. First, her right to an
interpreter was respected. She selected her husband as her interpreter and he
was permitted to perform that role. Unfortunately, as the applicant herself
acknowledged on cross-examination, he was not very good at it. Secondly, the
applicant’s evidence is unclear as to when her husband stopped interpreting.
Her evidence does not convincingly establish the moment her husband allegedly
ceased to interpret. In her affidavit, she says that this occurred “after a few questions”. Under cross-examination, she
was even more vague and non-committal.
[17]
At best, the applicant’s evidence indicates that
the Citizenship Judge warned her husband against providing her with the answers
and that, at some point in time, he stopped interpreting. It does not
establish that, on a balance of probabilities, the husband stopped by reason of
intimidation by the Citizenship Judge.
[18]
It is clear from the test results that Mrs
Indran failed 6 out of the first 7 questions, thereby determining the outcome.
Even if the Court were to accept that the Citizenship Judge breached the duty
of fairness, it would be unable to determine whether that breach had a material
effect on the outcome. If Mrs Indran’s husband had gone mute after the eight or
ninth or seventeenth question, nothing would turn on it. I note that the
applicant states in her affidavit that she had studied the citizenship guide
assiduously whenever she had spare time, yet on cross-examination she stated
that she did not know she would be questioned on the guide and had no idea what
kind of questions would be asked. This admission, combined with the answers Mrs
Indran actually gave to the questions she got wrong, suggests that the problem
with her performance on the test did not lie with the interpretation.
[19]
It is trite law that sworn testimony must be
presumed to be true unless there exist valid reasons to question its
truthfulness: see e.g., Maldonado v Canada (Minister of Employment and
Immigration), [1979] FCJ No 248 (FCA). In this matter, the issue is not so
much the credibility of Mrs Indran’s testimony as it is the probative value
which it deserves. She bears the burden of proof. She cannot establish a
breach of procedural fairness just by asserting that it occurred, in the
absence of any corroborating evidence and in the presence of ambiguous and
inconsistent sworn statements. When it was put to her on cross-examination that
her husband did interpret the questions and she simply failed to answer them,
the applicant stated that she did not know what happened.
[20]
Each party invited me to draw an adverse
inference from the other’s failure to submit evidence from the husband or the
Citizenship Judge, respectively, citing R v Starr, 2000 SCC 40 at paras
153, 160 and 162; Ellis-Don Ltd v Ontario (Labour Relations Board), 2001
SCC 4 at paras 73 and 88. The applicant further urged that I draw such an
inference from the failure of the respondent to record the test interview. I
will draw no adverse inference, although I note that the respondent bears no
onus to prove that a procedural breach did not occur. The party which seeks to
invalidate an administrative decision must persuade the Court that the decision
contains some error. In this instance, it would have been helpful to the
applicant’s case to have submitted an affidavit from her husband.
[21]
Since the applicant has failed to prove that the
Citizenship Judge deprived her of her right to an interpreter, she has
necessarily failed to prove that the Citizenship Judge should have rescheduled
the hearing. The CIC manual only prescribes that course of action in cases
where a Citizenship Judge decides that an interpreter is not performing his
task faithfully. On the face of the record, it would appear that the
Citizenship Judge did not believe that line was crossed. Nothing prevents a
Citizenship Judge from warning an interpreter when she suspects error or cheating,
instead of summarily terminating the examination and rescheduling it. In the
circumstances, the applicant has not proven that the Citizenship Judge
prevented her husband from continuing, so she has not proven that the duty to
adjourn the matter was triggered.
[22]
Having reached these conclusions, it is unnecessary
for me to decide whether Mrs Indran waived her right to complain of
procedural unfairness, as the respondent argued in the alternative.
However, I do agree with the Minister that she should have spoken up if she was
dissatisfied with her husband’s performance. As her final answer on
cross-examination indicates, he was not doing a good job. But she was aware
that she could bring the interpreter of her choosing and he was her
choice. She could have reasonably brought the problem to the Citizenship Judge’s
attention at some point by mentioning that she could not understand the
questions.
[23]
The relevant provisions of the Strengthening
Canadian Citizenship Act, SC 2014, c 22 governing applications
for judicial review of Citizenship Court judges came into force on August 1,
2014, by Order in Council (PC Number: 2014-0891) – before Mrs Indran applied
for judicial review in this case. The parties were therefore given an
opportunity to propose serious questions of general importance in keeping with
section 22.2 of the Act as it now reads. No questions were proposed and none
will be certified.
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