Ovcina (Re), docket T-969-97

Date: 19981222

Docket: T-969-97

BETWEEN:

     Appellant.

     REASONS FOR JUDGMENT

ROULEAU, J.

[1]      This is an appeal from a decision dated March 3, 1997. The Citizenship Judge refused to grant Canadian citizenship to the appellant. The Judge determined that Ms. Ovcina did not comply with paragraph 5(1)(d) of the Citizenship Act, R.S.C. 1985, c. C-29. He decided against making an affirmative recommendation under subsection 5(3) or 5(4) of the Act. Ms. Ovcina filed an appeal on April 28, 1997. She claims that her case should have been recommended for the exercise of ministerial discretion.

[2]      Ms. Ovcina was born in Bileca, Bosnia Hercegovina on March 8, 1941. She and her husband arrived in Canada as landed immigrants on February 18, 1993. Their son joined them in 1996. She is a housewife and her mother tongue is serbo-croatian.

[3]      Ms. Ovcina claims to have suffered severe hardship and trauma as a result of the war. Her husband had been incarcerated in a concentration camp, where he had been subjected to mental and physical torture. They were homeless and became refugees in Montenegro. Through the intervention of the Canadian government and the International Red Cross, they were admitted to Canada. They now live in Burnaby, B.C.

[4]      She claims that those hardships affected her health. She suffers from chronic back pain and has been through several operations, from which she has recovered with difficulty. Physicians have told her she has a 50 percent disability, and as a result, have exempted her from attending English classes. She was unable to find employment because of her age, her health and the language barrier. Both she and her husband live off her income assistance of $953.00 a month.

[5]      Ms. Ovcina applied for citizenship on March 18, 1996 and appeared before a Citizenship Judge on February 3, 1997. She was unable to answer the following questions:

Through the assistance of an interpreter the appellant was able to satisfy the Judge that she complied with the knowledge section of the test but he did not grant citizenship to the appellant since she had not complied with subsection 5(1)(d), which requires that an applicant have an adequate knowledge of one of Canada's official languages. The Citizenship Judge also refused to recommend the exercise of ministerial discretion pursuant to paragraphs 5(3) and 5(4) of the Citizenship Act. He was of the view that there was no evidence of any health problems, special or unusual hardship or services of exceptional value to Canada.

[6]      At the time of the hearing before this Court the amicus curiae put a number of questions to the appellant in the English language and without the assistance of an interpreter; she was able to state her name, her address, her telephone number. She was also capable of telling the court that she was married, had three children, two boys and one girl; that she arrived in Canada in 1993 and had been here for five years.

[7]      It was explained through her son, acting as interpreter, that she was unable to attend English classes (ESL) offered in her area during the day because of the severity of the husband's health.

[8]      Madame Justice Reed, in Re Koo, [1992] 1 F.C. 286 (F.C.T.D.), stated it is open to Federal Court Judges to censor a Citizenship Judge for failing to recommend to the Minister that citizenship should be granted pursuant to paragraph 5(4) and many judges do not hesitate to make recommendations to the executive. In Re Karroum (1990), 39 F.T.R 116, Pinard J. recommended that the ministerial discretion be exercised with regard to the language requirement of the Act. The appellant was a 61 year old illiterate person who was ill and had difficulty walking. Denying her citizenship would not serve public interest.

[9]      In Re Ngo (1986), 6 F.T.R. 81 (F.C.T.D.), the Court recommended that the Minister waive the requirements of sections 5(1)(d) and (e). The appellant had lived through the difficulties of a communist takeover in Vietnam. His family moved to Canada, where he joined them two years later. His children were well-integrated into Canadian life and made contributions to support their parents. The appellant had little formal education and had difficulties learning an official language, but he could do errands and use public transportation without assistance.

[10]      Finally, in Re Adèle Goshgarian (February 3, 1978), T-4025-77 (F.C.T.D.), the appellant was a 59 year old illiterate housewife, who suffered from diabetes, high blood pressure and obesity. She had come to Canada with her husband, who had since died. Her world was limited to her family and to provide for its daily needs. Décary, J. felt that such a person with an extremely limited knowledge of an official language could function within the framework without speaking either language. Accordingly, the appeal was allowed.

[11]      Ms. Ovcina is a 57 year old housewife with a grade 11 education, who had fled the horrors of the Balkans war. She had complied with all the other citizenship requirements. She has been in Canada since 1993 and it seems she has been able to communicate with doctors and the Ministry of Social Services. Her husband has become a Canadian citizen.

[12]      I am satisfied that the appellant suffers from a medical condition which prevents her to be gainfully employed or take English classes. Ms. Ovcina submitted three medical certificates. A note from Dr. John McMorran dated June 4, 1993 reveals that the appellant had a 40% disability. She suffers from a lumbo-sacral syndrome and cannot sit for an extended period of time. On February 5, 1994, Dr. McMorran certified that Ms. Ovcina suffered from chronic back pain and that her condition precluded her from seeking employment for 6 months. Dr. P. Jaffer certified on February 21, 1996 that Ms. Ovcina suffers from chronic back pains and that her condition precludes her from seeking employment. The expected duration of her condition is subject to review.

[13]      Before the Court the appellant did satisfy the amicus curiae that she has had made progress in English and was sympathetic to her plight and was satisfied that she could communicate sufficiently if she encountered problems outside of the home.

[14]      It should be remembered that this appellant was subjected to atrocities in the Balkans; her husband still suffers from his days of internment and incarceration; he had become a citizen of Canada; she came to this country under the assistance of the International Red Cross and was accepted by Canadian authorities as a landed immigrant from a country in which she had been a refugee.

[15]      I would recommend the exercise of the ministerial discretion in this case. It seems Ms. Ovcina can function in her limited framework as an unemployable housewife. Denying her citizenship would not serve any public interest.

[16]      The appeal is allowed.

                                 (Sgd.) "P. Rouleau"

                                     Judge

Vancouver, British Columbia

December 22, 1998