Amoah v. Canada (Citizenship and Immigration), 2009 FC 775

 

Date: 20090729

Docket: T-1317-08

Citation: 2009 FC 775

Ottawa, Ontario, July 29, 2009

PRESENT:     The Honourable Mr. Justice Kelen

 

 

BETWEEN:

ANDRA AMOAH

Applicant

and

 

THE MINISTER OF

CITIZENSHIP AND IMMIGRATION

Respondent

 

 

 

REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               This is an appeal pursuant to section 14(5) of the Citizenship Act, R.S., 1985, c. C-29 of a decision by a Citizenship Judge, dated June 24, 2008, denying the applicant’s application for Canadian citizenship on the basis that she did not have adequate knowledge of Canada and the responsibilities and privileges of citizenship, as required by subsection 5(1)(e) of the Citizenship Act.  The applicant, who is self-represented and appeared before the Court with an interpreter, submits that the Citizenship Judge should have exercised her discretion under subsections 5(3) and (4) of the Act to exempt the applicant from the knowledge requirements.

FACTS

[2]               The applicant is a citizen of Ghana.  She arrived in Canada and became a permanent resident in 1991.  The applicant’s first application for citizenship was refused in 2002 on the basis that she did not meet the knowledge requirements in subsection 5(1)(e) of the Citizenship Act.

 

[3]               The applicant submitted her second citizenship application, which is the subject of this appeal, in January 2007.  She indicated on her application form that she would be accompanied by an interpreter at her citizenship test.  The form did not, however, indicate that the applicant could not read or write English, and the section on the form to be filled out by any person or organization that assisted in completing the application was left blank.  The applicant signed the form indicating that she understood its contents. 

 

[4]               The applicant appeared for her citizenship test on November 9, 2007 as instructed.  The applicant was not accompanied by an interpreter.  She informed the Officer that she could not read English.  The Officer made a note of this on the applicant’s application form and instructed the applicant to complete the test.  The applicant answered some questions correctly but failed to answer one or more of the mandatory questions and therefore failed the test. 

 

[5]               The applicant was then instructed to attend an interview with the Citizenship Judge on June 12, 2008.  At this interview, the citizenship test was administered orally and the applicant was given an opportunity to respond orally.  The Citizenship Judge reserved her decision and on June 24, 2008, denied the application on the basis that the applicant did not meet the mandatory knowledge requirements of subsection 5(1)(e).

 

Decision under review

[6]               In denying the applicant’s citizenship application, the Citizenship Judge stated:

…At the hearing, you were unable to answer correctly questions in respect to:

-   the voting procedures related to elections

-   the responsibilities of citizenship

-   the history and geography of Canada

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 correctly answer questions prepared by the Minister based on the information contained in self-instructional material approved by the Minister and presented to applicants for the grant of citizenship. 

 

[7]               The Citizenship Judge declined to make a recommendation to the Minister that the applicant should be exempted from the knowledge requirement under the discretionary provisions of the Citizenship Act:

Pursuant to subsection 15(1) of the Citizenship Act, I have considered whether or not to make a recommendation for an exercise of discretion under subsection 5(3) and 5(4) of the Act.  Subsection (3) of the Act confers discretion to the Minister to, among other things, waive on compassionate grounds, in the case of any person, the knowledge requirements you failed to meet.  As to subsection 5(4) of the Act, it empowers the Governor in Council to direct the Minister to grant citizenship to any person in cases of special and unusual hardship or to reward services of an exceptional value to Canada. 

 

There was no evidence presented to me at the hearing of special circumstances that would justify me in making such a recommendation under either of subsections 5(3) or 5(4).  Pursuant to the provisions of subsection 14(3) of the Citizenship Act, you are, therefore, advised that, for the above reasons, your application for citizenship is not approved.

 

[8]               The Citizenship Judge therefore denied the citizenship application.  The Notice to the Minister of the Decision of the Citizenship Judge indicates that the applicant had not satisfied subsection 5(1)(e) of the Act.  The form indicates that the applicant did satisfy the other requirements of section 5, including subsection 5(1)(d), i.e. adequate knowledge of one of the official languages of Canada.

 

RELEVANT LEGISLATION

[9]               Section 5(1) of the Citizenship Act provides:

 

[10]           Sections 5(3) and 5(4) of the Act provide:

[11]           Section 15(1) of the Act provides that a Citizenship Judge shall consider whether a recommendation to the Minister to exercise his discretion under subsection 5(3) or (4) is appropriate before refusing an application:

 

[12]           Section 15 of the Citizenship Regulations, SOR/93-246 sets out the criteria for determining whether an applicant meets the knowledge requirement of section 5(1)(e) of the Citizenship Act:

 

[13]           Section 14(5) and (6) of the Citizenship Act provides that an applicant may appeal the decision of a Citizenship Judge to this Court, and that the decision of this Court is final:

 

 

STANDARD OF REVIEW

[14]           This Court has held that the standard of review for the decision of a citizenship judge is reasonableness: Zhao v. Canada (MCI), 2006 FC 1536, 306 F.T.R. 206, per Russell J. at para. 45; Chen v. Canada (MCI), 2006 FC 85, 145 A.C.W.S. (3d) 770, per Phelan J. at para. 6.  Prior to Dunsmuir v. New Brunswick, 2008 SCC 9, discretionary decisions under subsection 5(3) and 5(4) were also subject to a patent unreasonableness standard: Arif v. Canada (MCI), 2007 FC 557, 157 A.C.W.S. (3d) 557, per Blais J. at para. 8.  In Dunsmuir, the Supreme Court eliminated the patent unreasonableness standard of review.  Post-Dunsmuir, the appropriate standard of review for all decisions of a citizenship judge is reasonableness simpliciter: Canada (MCI) v. Aratsu, 2008 FC 1222, per Russell J. at paras. 16-20.  

 

[15]           In reviewing the Citizenship Judge’s decision on a reasonableness standard, the Court will consider "the existence of justification, transparency and intelligibility within the decision-making process” and “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir at para. 47). The Court will only intervene if the decision falls outside the "range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir at paragraph 47).

 

ISSUES

[16]           The issue raised by the applicant in this appeal is whether the Citizenship Judge failed to consider her educational background in deciding not to recommend the applicant for a discretionary exemption under ss. 5(3) or (4) of the Citizenship Act. 

 

ANALYSIS

[17]           In her affidavit, the applicant states that she cannot read or write English, and that she speaks English “with some difficulty”.  The applicant states that she did not have any formal education in Ghana.  The applicant submits that the Citizenship Judge should have taken these factors into account in considering whether an exemption under subsections 5(3) or (4) was appropriate.

 

[18]           Subsection 5(3) allows a Citizenship Judge to recommend that an applicant be exempted, on compassionate grounds, from the knowledge requirement of subsection 5(1)(e), or the language requirement of subsection 5(1)(d).  The relevant issue raised by the applicant is whether she should be exempted from the knowledge requirement on compassionate grounds.  The reason given by the applicant as the basis for the request is her lack of English language skills.  However, the applicant was found by the Citizenship Judge to have adequate language skills satisfying the language requirement of subsection 5(1)(d).  The language assessment is based on the test and/or oral interview.  In this case, the Citizenship Judge, who found the applicant’s language skills adequate, had conducted an oral interview with the candidate. 

 

[19]           Under these circumstances, it was reasonable for the Citizenship Judge to conclude that an exemption to the knowledge requirement was not warranted on the basis of the applicant’s poor English language skills.  The applicant had been deemed to have sufficient language skills such that she met the language requirement.  The Citizenship Judge, in conducting her oral interview with the applicant, was able to assess the applicant’s comprehension and language skills.

 

Judge found no evidence of special circumstances for exemption

[20]           Subsection 5(4) provides that an exemption to the knowledge requirement may be granted in cases of special or unusual hardship.  The Citizenship Judge stated in her decision that no evidence of special circumstances had been presented at the hearing.  The applicant has not made any submissions before this Court as to any evidence that was before the Citizenship Judge, or as to any special or unusual hardship that would warrant an exemption under subsection 5(4).  The applicant’s English language skills were assessed by the Citizenship Judge and found to be adequate, and therefore do not constitute special or unusual hardship.  The applicant’s lack of formal education likewise should not have precluded her from completing an oral exam.  If the applicant’s lack of formal education has created special learning difficulties for the applicant, aside from poor language skills, she has not made any submission to this effect. Accordingly, it was reasonable for the Citizenship Judge to conclude that no special or unusual hardship existed as no evidence was put before her of any such hardship.

 

[21]           For these reasons, this appeal is dismissed.

 

[22]           The applicant can re-apply for Canadian citizenship, and either learn the required basic knowledge about Canada, the voting procedures related to elections, and the responsibility of citizenship or seek exemption from these requirements on compassionate grounds. Such compassionate grounds were explained to the Court by the applicant at the hearing, through the aid of an interpreter, and they include:

a.       the applicant is illiterate in English, i.e. she cannot read or write English;

b.      the applicant speaks the English language with difficulty;

c.       the applicant has twice failed the citizenship test after studying with the assistance of her children. She does not have the ability to retain the information; and

d.      the applicant has had no education either in her country of origin, Ghana or in Canada.

 

[23]           The applicant also stressed that she cannot afford the $200 application fee to apply for citizenship a third time, and asked the respondent for relief. This Court does not Rule on compassionate grounds for an applicant seeking an exemption from the legal requirements for citizenship. That is the prerogative of the Citizenship Judge.

 

 

 

JUDGMENT

 

THIS COURT ORDERS AND ADJUDGES that:

            This appeal is dismissed.

 

 

 

“Michael A. Kelen”

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          T-1317-08

 

STYLE OF CAUSE:                          ANDRA AMOAH v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION

 

 

 

 

PLACE OF HEARING:                    Toronto, Ontario

 

DATE OF HEARING:                      July 21, 2009

 

REASONS FOR JUDGMENT

AND JUDGMENT:                          KELEN J.

 

DATED:                                             July 29, 2009

 

 

 

APPEARANCES:

 

Ms. Andra Amoah	FOR THE APPLICANT (SELF-REPRESENTED)
Mr. David Joseph	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Ms. Andra Amoah	FOR THE APPLICANT (SELF-REPRESENTED)
John H. Sims, Q.C. Deputy Attorney General of Canada	FOR THE RESPONDENT