Date: 20030602
Docket: T-368-02
Citation: 2003 FCT 690
Ottawa, Ontario, June 2, 2003
PRESENT: THE HONOURABLE MADAM JUSTICE JOHANNE GAUTHIER
BETWEEN:
DONA ZIAD HADDAD
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Dona Ziad Haddad is a twenty-eight year old citizen of Lebanon. She came to Canada with her mother and sister on October 18, 1994. Pursuant to subsection 14(5) of the Citizenship Act, R.S.C., 1985, c. C-29 (the Act), she is appealing the decision of Judge George Springate refusing her application for citizenship.
[2] Judge Springate stated in his letter of refusal dated January 31, 2002, that (i) Ms. Haddad failed to provide satisfactory evidence that she had resided in Canada for at least three years during the four years immediately preceding the date of her application, which was April 18, 2000, (paragraph 5(1)(c) of the Act) and (ii) she did not prove she has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship, given that she correctly answered only 6 of the 19 questions put to her and did not correctly answer three of the mandatory questions (paragraph 5(1)(e) of the Act).
[3] Judge Springate also stated that he had considered whether he should make a recommendation to the Minister under subsection 15(1) of the Act for a waiver on humanitarian grounds:
[TRANSLATION] At the interview, I tried to find out whether special circumstances existed that could warrant such a recommendation. Since you submitted no evidence in that regard, I have no reason to make such a recommendation to the Minister.
[4] It is to be noted that Judge Springate also refused the applications for citizenship of Ms. Haddad's mother and sister on similar grounds, and that the three appeals were heard together by the Court.
Issues
[5] Dona Zia Haddad contends that the decision of Judge Springate is ill-founded in fact and in law for the following reasons:
(i) regarding the refusal based on paragraph 5(1)(e) of the Act, the Judge should have made a recommendation for a waiver under subsection 15(1) of the Act, because Ms. Haddad suffers from a mental disability, which is why she was unable to correctly answer all the questions put to her at the interview.
ii) regarding paragraph 5(1)(c) of the Act, the Judge failed to consider the judgment of the Immigration and Refugee Board dated January 6, 2000, and imposed too high a burden of proof, higher than the balance of probabilities. The Judge also neglected or refused to consider all the evidence in the file, which indicates that he was biased.
[6] In addition to these substantive issues, the parties are raising two preliminary objections to the admissibility of certain documents in the appeal book.
[7] The respondent submits that documents P-4 and P-5 filed by Ms. Haddad were not before the Citizenship Judge and therefore cannot be used to assess whether he was justified in not making a recommendation for a waiver under subsection 15(1) of the Act.
[8] Ms. Haddad objects to the Court considering certain documents in Judge Springate's file that were part of an affidavit filed barely ten days before the hearing. In particular, she objects to the filing of (i) a memo from a citizenship officer dated September 14, 2001, and (ii) handwritten notes and detailed reasons of Judge Springate that were not provided to her on January 31, 2002.
[9] After reviewing the authorities submitted by the respondent, Ms. Haddad decided at the hearing to withdraw exhibits P-4 and P-5 describing her mild psychomotor delay, which is
well-controlled and does not require any medical treatment.
[10] With respect to the second objection, Ms. Haddad's only argument is that the filing was late and that the delay caused her harm, because she did not have the opportunity to familiarize herself with these documents before the affidavit was served. The respondent submits that Ms. Haddad could have obtained a copy of Judge Springate's file at any time, either by an application under section 29 of the Citizenship Regulations SOR/93-246 or by a request under rule 317 of the Federal Court Rules, 1998, SOR/98-106. He also argues that Ms. Haddad was not taken by surprise, because the respondent's memorandum, which was served and filed on July 10, 2002, makes numerous references to the file of the Citizenship Judge, including the notes and reasons to which Ms. Haddad now objects.
[11] The Court believes it is in the interest of justice that the entire file of the Citizenship Judge be filed. The Court notes that it could have required the filing of this evidence under rule 313 of the Federal Court Rules, 1998. The Court therefore allows the late filing of the affidavit of Ms. Dominque Toillon dated February 25, 2003.
Analysis
[12] As I have said, Ms. Haddad admits that she failed to satisfy the requirements of paragraph 5(1)(e) of the Act. She maintains that Judge Springate did not take into account her mental disability when deciding whether to recommend a waiver (subsections 15(1) and 5(3) of the Act).
[13] The Court notes that there was a discussion as to whether recommending or refusing to recommend an exercise of discretion under subsection 15(1) of the Act is a "decision" within the meaning of subsection 14(2) from which an appeal lies under subsection 14(5) of the Act, or whether the decision to recommend or not recommend a waiver must be challenged by way of judicial review under section 18.1 of the Federal Court Act, R.S.C.1985, c. F-7, (see Abdule v. Canada (M.C.I.), [1999] F.C.J. No. 1524 (QL) and Zhang v. Canada (M.C.I.), [2000] F.C.J. No. 1943 (QL)).
[14] Ms. Haddad filed her application under subsection 14(5) of the Act. However, like Mr. Justice Kelen in Hassan v. Canada (M.C.I.), [2002] F.C.J. No. 1049 (QL), I do not believe that I must dismiss Ms. Haddad's application on that basis. As of 1998, the appeal under 14(5) of the Act is not a de novo appeal, and the Court file contains the same evidence on an appeal or on an application for judicial review. The other differences between the two proceedings are not relevant in this case, because I am of the view that the Citizenship Judge did not make a reviewable error. Therefore, I am adopting the practical solution proposed by Kelen J. in the above-noted case, in order to prevent a defect in form from needlessly delaying a decision on this application.
[15] The standard of review of a decision to recommend or not recommend a waiver is different from the standard applicable to the assessment of the conditions in subsection 5(1) of the Act. The exercise of a discretion such as the one set out in subsection 15(1) of the Act is entitled to more deference. See Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817; [1982] 2 S.C.R. 2">Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2).
[16] As I said above, it appears from the letter of refusal that before refusing the application for citizenship, the Citizenship Judge considered whether he should recommend a waiver. Accordingly, the only issue is whether he considered Ms. Haddad's disability.
[17] On that issue, Ms. Haddad states that her disability is self-evident and that therefore she did not have to submit any other evidence to warrant a recommendation for a waiver.
[18] The Citizenship Judge stated in his notes:
In submitted documents, the family presents the applicant as handicapped. She reportedly stays with her parents at all times. No medical documents were submitted to support the family's statements.
The applicant was not accompanied during her hearing with she [sic]. I found her polite, composed and fully capable of being part of the same discussion. Moreover, I found no reason to refer her to the Minister for special consideration.
[19] The Court notes that the affidavit of April 16, 2002, was made in the name of Dona Ziad Haddad but signed by her mother, Carmella Khalil Henoud, who says she is her legal guardian. The fact that Ms. Haddad has a guardian does not appear in the other documents filed in her name. She herself signed her application for citizenship. As Judge Springate states, it is interesting to note that Ms. Henoud thought her daughter was capable of going to her interview with Judge Springate on her own. It is also appropriate to note on this point that Judge Springate indicates in his interview notes that "daughter is somewhat slow - but she can study says mother". Ms Haddad is described as a "[TRANSLATION] student" in her record of landing.
[20] In the circumstances, the Court cannot conclude that Judge Springate failed to exercise his discretion or breached his obligation to consider all the evidence in the file. His decision to not recommend a waiver and to refuse the application under paragraph 5(1)(e) of the Act is not unreasonable.
[21] It is not necessary to decide whether the Citizenship Judge erred in his assessment of the residency within the meaning of paragraph 5(1)(c) of the Act.
[22] For these reasons, the application is dismissed.
THE COURT ORDERS:
1. The application is dismissed.
"Johanne Gauthier"
Judge
Certified true translation
Mary Jo Egan, LLB
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
DOCKET: T-368-02
STYLE OF CAUSE: Dona Ziad Haddad v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 10, 2003
REASONS FOR ORDER: The Honourable Madam Justice Johanne Gauthier
DATED: June 2, 2003
APPEARANCES:
Annie Kenane FOR THE APPLICANT
Diane Lemery FOR THE RESPONDENT
SOLICITORS OF RECORD:
Annie Kenane FOR THE APPLICANT
1640 - 630, René-Lévesque Blvd. West
Montréal, Quebec H3B 1S6
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec H2Z 1X4
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