Date: 19990709
Docket: T-1809-98
OTTAWA, ONTARIO, JULY 9, 1999
PRESENT: THE HONOURABLE MR. JUSTICE LEMIEUX
BETWEEN:
SYED ZAHID HUSSAIN
Applicant
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
J U D G M E N T
The appeal and application are allowed, the decision of Citizenship Judge Hong, dated February 20, 1998, refusing to approve the applicant's application for Canadian citizenship is set aside and the applicant's citizenship application is remitted to a different Citizenship Judge for redetermination as soon as practicable.
"François Lemieux"
J U D G E
Date: 19990709
Docket: T-1809-98
BETWEEN:
SYED ZAHID HUSSAIN
Applicant
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
LEMIEUX J.:
INTRODUCTION
[1] Syed Zahid Hussain (the "applicant"), a citizen of Pakistan, appeals to this Court the decision of Citizenship Judge Jay Hong, dated February 20, 1998, refusing to approve the applicant's application for Canadian citizenship dated March 14, 1995, on the grounds that the applicant did not have an adequate knowledge of Canada and of the responsibilities and privileges of citizenship as required by paragraph 5(1)(e) of the Citizenship Act (the "Act").
[2] The applicant was interviewed by Citizenship Judge Hong on February 20, 1998. He made his decision later that day. However, his decision letter was only mailed to the applicant on July 2, 1998 and received by the applicant on September 8, 1998.
[3] The material part of Citizenship Judge Hong's decision is as follows:
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Subsection 5(1)(e) of the Citizenship Act provides that an applicant for citizenship must have an adequate knowledge of Canada and of the responsibilities and privileges of Canadian citizenship in order to qualify for citizenship. At the hearing, you were unable to answer correctly the simple questions set forth in Schedule "A" attached hereto. |
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According to section 15 of the Citizenship Regulations, which prescribes the criteria for determining whether or not an applicant has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship, you must be able to understand and answer correctly, simple oral questions based on the information contained in self-instructional material approved by the Minister and presented to applicants for the grant of citizenship. |
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[4] A review of the certified record indicates that Citizenship Judge Hong asked the applicant fifteen questions. The applicant answered eight correctly but seven incorrectly.
[5] The appeal before me did not proceed by way of trial de novo but by way of application under rule 300 of the Federal Court Rules, 1998. The applicant and the respondent filed affidavits but there was no cross-examination.
[6] The applicant came to Canada in 1970 as a permanent resident. He immediately left to pursue studies in industrial engineering at Western Michigan University from 1970 to 1974. Between 1974 and 1982, the applicant worked abroad. He has lived in Canada since 1982 and throughout this time, worked as a self-employed individual in different businesses.
THE ISSUES
[7] The principal issue raised by the applicant is one of procedural fairness. He states he did not receive proper notice of hearing which would canvass the issues of adequate knowledge of Canada and the responsibilities and privileges of citizenship. More substantively, he asserts that he has adequate knowledge of Canada and the responsibilities and privileges of citizenship. He asked me to approve his application for Canadian citizenship. I could not grant this request because the proceeding was not de novo.
ANALYSIS
(a) Procedural Fairness
[8] The respondent's facts were provided through the affidavit of Helen Rooney, a clerk at the Court of Canadian Citizenship in Scarborough, Ontario, who said that one of her duties as a clerk is to schedule interviews for clients who have applied for citizenship. Ms. Rooney deposed the applicant was scheduled for a hearing on January 12, 1998, at 11:45 a.m. She deposed the applicant was sent a form letter concerning the interview, appended as Appendix A to her affidavit, a type of form letter which the applicant would have received. The first two paragraphs of such form letter read as follows:
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The Hearing will be a personal interview between you and the Citizenship Judge. By law, it is your responsibility to demonstrate an adequate knowledge of either the English or French language. You must also have an adequate knowledge of Canada and of: |
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1. responsibilities of citizenship; |
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2. privileges (rights) of citizenship; |
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3. enumerating and voting procedures relating to elections. |
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Helen Rooney, in her affidavit, could not swear that the applicant had been sent this letter nor could she swear to the fact that he had received such a form letter.
[9] The applicant swears that he never received a letter convening him to an interview on January 12, 1998. He says on January 11, 1998, he received a telephone call from the Citizenship Court; the person from the Citizenship Court left a message on the applicant's voice mail asking him to come to the Court before 1:00 p.m. the next day with no indication why. The applicant deposes he showed up at the court's office only to be informed by the receptionist that he had missed his interview time of 11:45 a.m. The applicant then deposes that he received a letter from the Citizenship Court dated February 2, 1998, via registered mail, the first sentence reading as follows:
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Please consider this a "Final Notice" for you to appear for a Hearing which will be a personal interview between you and a Citizenship Judge. If you do not appear at this time, your application for Canadian Citizenship will be recorded as abandoned; no further action can be taken on that application. |
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[10] The applicant deposes that previously he had requested the Citizenship Court for the written test which he says is an option generally available to citizenship applicants; he deposes he was told there would be an interview and to his question as to why not a written test, he says, the staff handling his case gave him to understand that the hearing would pertain to his absences from Canada which he had not mentioned in his application. The applicant says he thought the February 20, 1998 hearing was about his absences from Canada and that when Judge Hong started asking him questions about knowledge of Canada and the rights and privileges of Canadian citizenship, he brought this fact to his attention.
[11] After he received the decision letter on September 8, 1998, the applicant wrote to Judge Hong. The second paragraph of that letter dated September 15, 1998, reads:
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This letter is to bring my protest on record about the way my application was processed. I had informed during the oral hearing of February 20, 1998 that your letter did not mention about the verbal test. I showed you the letter. I further informed you that I was given to understand that the hearing will be about my absence from Canada and the test on the knowledge of Canada will come later. Seeing my letter, you admitted that it is a clerical error. I requested for a second chance for the test and you mentioned that I should be talking to the Administration Department. |
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(b) Application to this Case
[12] The respondent countered the applicant's submission he was not given proper notice is not supported by the evidence before the Court. The respondent argues when the applicant made his application for Canadian citizenship he was provided with study material which indicates knowledge of Canada is a prerequisite for the granting of citizenship. Moreover, counsel for the respondent argues that the applicant admits in his submission that he did not answer the questions correctly.
[13] Examining all of the circumstances of this case which are somewhat unusual, I find the applicant did not have adequate notice when he met Judge Hong on February 20, 1998, he would be questioned on his knowledge of Canada and the rights and privileges of Canadian citizenship. In my view, fairness demands he be given the same notice and study opportunity in this respect that any other applicant for Canadian citizenship is given.
[14] From the material before me, it is clear that a citizenship judge's questions (when the written test option is not given) are based on the information contained in self-instructional material approved by the Minister and presented to applicants for grant of citizenship. Applicants for Canadian citizenship who are to be interviewed receive notice of the purpose of the interview so that they can review the self-instructional material prescribed by the Minister in preparation for the interview. On the record available to me, I am satisfied the applicant did not receive the standard notice letter; the February 2, 1998 letter, which he did receive, did not identify the purpose of the interview. I also find that the applicant had reasonable grounds to think the February 20, 1998 interview would be about his absences.
[15] It is true, as counsel for the respondent points out, the applicant failed to answer seven questions. The record indicates he, however, answered eight questions correctly. The correctly answered questions mostly related to current affairs. In my view, it is a reasonable inference, on this record, that the answers to six of the seven questions which the applicant failed to answer correctly were contained in the self-instructional material.
DISPOSITION
[16] This appeal and application are allowed, the decision of Citizenship Judge Hong, dated February 20, 1998, refusing to approve the applicant's application for Canadian citizenship is set aside and the applicant's citizenship application is remitted to a different Citizenship Judge for redetermination as soon as practicable.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
JULY 9, 1999
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