Date: 20070529
Docket: T-1800-06
Citation: 2007 FC
557
Ottawa, Ontario, May 29, 2007
PRESENT: The Honourable Mr. Justice Blais
BETWEEN:
JAMILA
ARIF
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an appeal under
subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 (the Act),
from the decision of citizenship judge William L. Day, dated August 29, 2006,
wherein he denied the applicant’s application for Canadian citizenship.
BACKGROUND
[2]
Jamila Arif (the applicant) immigrated to Canada from Afghanistan in 2001, accompanied by her husband and children. She applied for
citizenship on August 28, 2004.
[3]
The citizenship judge met with the applicant for an
interview on August 23, 2006. The applicant had already satisfied the residency
requirement, as per paragraph 5(1)(c) of the Act, and the sole issue before the
citizenship judge was whether she satisfied the knowledge requirement, as per
paragraph 5(1)(e) of the Act.
DECISION
UNDER REVIEW
[4]
In his August 29, 2006 decision, the citizenship judge
rejected the applicant’s application for citizenship, on the ground that she did not have an
adequate knowledge of Canada and of the responsibilities and
privileges of citizenship, as per the requirements of paragraph 5(1)(e) of the
Act. The citizenship judge also considered whether to make a recommendation for
an exercise of ministerial discretion under subsections 5(3) and 5(4) of the
Act, but concluded that there was no evidence presented at the hearing of
special circumstances that would justify making such a recommendation.
ISSUES FOR
CONSIDERATION
[5]
The issues for consideration in this citizenship appeal are
as follows:
1)
Did the citizenship judge commit a reviewable error when he
concluded that the applicant did not have an adequate knowledge of Canada and of the responsibilities and privileges of citizenship?
2)
Did the citizenship judge commit a reviewable error when he
concluded that there were no special circumstances that would justify a recommendation
to the Minister that he waive the knowledge requirement or otherwise grant
citizenship to the applicant?
STANDARD OF
REVIEW
[6]
A number of judgments from the Federal Court have
considered the proper standard of review for a decision of a citizenship judge,
in light of the test set out by the Supreme Court of Canada in Dr. Q. v.
College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R.
226. The general consensus has been that reasonableness simpliciter is
the proper standard of review, as I myself noted in El Fihri v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1106.
[7]
However, in the present situation, the decision at issue is
one that is essentially factual, as the citizenship judge was asked to
determine whether the applicant had sufficient knowledge of Canada, as opposed
to determining whether the applicant met the residency requirement based on the
tests set out in the jurisprudence, which would be a question of mixed fact and
law. Therefore, I would follow the decisions of Mr. Justice Michel M.J. Shore
in Abdollahi-Ghane v. Canada (Attorney General), 2004 FC 741, and Mr. Justice
Richard Mosley in Huang v. Canada (Minister of Citizenship and Immigration),
2005 FC 861, to the effect that greater deference should be shown to the
citizenship judge for pure questions of fact and that the standard of review
should be patent unreasonableness.
[8]
With respect to the decision of the citizenship judge not
to recommend that the Minister exercise his discretion pursuant to subsections
5(3) and 5(4) of the Act, the proper standard of review will also be patent
unreasonableness, given that it is a discretionary decision and is thus
entitled to great deference (Henoud v. Canada (Minister of Citizenship and
Immigration), 2003 FCT 691).
[9]
Since patent unreasonableness is the proper standard, I
must consider whether the citizenship judge rendered a decision based on an
erroneous finding of fact that he made in a perverse or capricious manner or
without regard for the material before him.
ANALYSIS
1) Did the citizenship judge commit a reviewable error when
he concluded that the applicant did not have an adequate knowledge of Canada and of the
responsibilities and privileges of citizenship?
[10]
Paragraph 5(1)(e) of the Act reads as follows:
|
5. (1) The Minister shall grant citizenship to any
person who
[…]
(e) has an adequate
knowledge of Canada and of the responsibilities and privileges of
citizenship; and
|
5. (1) Le
ministre attribue la citoyenneté à toute personne qui, à la fois :
[…]
e) a une connaissance suffisante du Canada et des responsabilités
et avantages conférés par la citoyenneté;
|
[11]
Additional information is provided at section 15 of the Citizenship
Regulations, 1993, S.O.R./93-246, which states:
|
15.
The criteria for determining whether a person has an adequate knowledge of Canada
and of the responsibilities and privileges of citizenship are that, based on
questions prepared by the Minister, the person has a general understanding of
(a) the right to vote in
federal, provincial and municipal elections and the right to run for elected
office;
(b) enumerating and voting
procedures related to elections; and
(c) one of the following
topics, to be included at random in the questions prepared by the Minister,
namely,
(i) the chief characteristics
of Canadian social and cultural history,
(ii) the chief characteristics
of Canadian political history,
(iii) the chief characteristics
of Canadian physical and political geography, or
(iv) the responsibilities and privileges of citizenship,
other than those referred to in paragraphs (a) and (b).
SOR/94-442, s. 3.
|
15. Une personne possède une connaissance suffisante du
Canada et des responsabilités et privilèges attachés à la citoyenneté si, à
l'aide de questions rédigées par le ministre, elle comprend de façon
générale, à la fois :
a) le
droit de vote aux élections fédérales, provinciales et municipales et le
droit de se porter candidat à une charge élective;
b) les
formalités liées au recensement électoral et au vote;
c) l'un
des sujets suivants, choisi au hasard parmi des questions rédigées par le
ministre :
(i) les principales
caractéristiques de l'histoire sociale et culturelle du Canada,
(ii) les principales
caractéristiques de l'histoire politique du Canada,
(iii) les
principales caractéristiques de la géographie physique et politique du
Canada,
(iv) les
responsabilités et privilèges attachés à la citoyenneté autres que ceux visés
aux alinéas a) et b). DORS/94-442, art. 3.
|
[12]
During the interview on August 23, 2006, the citizenship judge
asked the applicant 36 questions to assess her knowledge of Canada and of the responsibilities and privileges of citizenship.
Unfortunately, the applicant was unable to answer the majority of these
questions.
[13]
The citizenship judge, in his letter to the applicant,
provided a list of 10 questions among others, which the applicant failed to
answer correctly, including 3 key questions and 1 mandatory question.
[14]
In light of these facts, and of the applicable standard of
review, I am satisfied that the decision of the citizenship judge to the effect
that the applicant did not have the requisite knowledge of Canada was
reasonable.
2) Did the citizenship judge commit a reviewable error when
he concluded that there were no special circumstances that would justify a recommendation
to the Minister that he waive the knowledge requirement or otherwise grant
citizenship to the applicant?
[15]
Under article 15 of the Act, the citizenship judge is
required, upon determining that he is unable to approve an application for
citizenship, to consider whether or not to recommend to the Minister that he
exercise his discretion under subsections 5(3) and 5(4) of the Act, which read
as follows:
|
5.
[…]
(3)
The Minister may, in his discretion, waive on compassionate grounds,
(a) in the case of any
person, the requirements of paragraph (1)(d) or (e);
(b) in the case of a minor,
the requirement respecting age set out in paragraph (1)(b), the
requirement respecting length of residence in Canada set out in paragraph
(1)(c) or the requirement to take the oath of citizenship; and
(c) in the case of any
person who is prevented from understanding the significance of taking the
oath of citizenship by reason of a mental disability, the requirement to take
the oath.
(4)
In order to alleviate cases of special and unusual hardship or to reward
services of an exceptional value to Canada, and notwithstanding any other
provision of this Act, the Governor in Council may, in his discretion, direct
the Minister to grant citizenship to any person and, where such a direction
is made, the Minister shall forthwith grant citizenship to the person named
in the direction.
|
5.
[…]
(3) Pour des raisons d’ordre humanitaire, le ministre a le pouvoir
discrétionnaire d’exempter :
a) dans tous les cas, des conditions prévues aux alinéas (1)d)
ou e);
b) dans le cas d’un mineur, des conditions relatives soit à l’âge
ou à la durée de résidence au Canada respectivement énoncées aux alinéas (1)b)
et c), soit à la prestation du serment de citoyenneté;
c) dans le cas d’une personne incapable de saisir la portée du
serment de citoyenneté en raison d’une déficience mentale, de l’exigence de
prêter ce serment.
(4) Afin de remédier à une situation particulière et inhabituelle
de détresse ou de récompenser des services exceptionnels rendus au Canada, le
gouverneur en conseil a le pouvoir discrétionnaire, malgré les autres
dispositions de la présente loi, d’ordonner au ministre d’attribuer la
citoyenneté à toute personne qu’il désigne; le ministre procède alors sans
délai à l’attribution.
|
[16]
In the affidavits supporting this appeal, the applicant’s
husband and daughters speak to the many tragedies experienced by the applicant
in her life, to the fact that she has raised twelve children, including six
children left behind by her deceased sister, and that she never had the
opportunity to attend school in Afghanistan. However, from the tribunal record,
it does not appear that such information was before the citizenship judge and
therefore it cannot be considered as part of this appeal, which is not an
appeal de novo.
[17]
However, the applicant did include in her application for
citizenship copies of medical reports, which showed that she suffered from
thyroid problems, arthritis and migraines. According to her doctor, these
medical conditions prevented her from attending her ESL classes. Her doctor
also stated that both her English and her memory were very poor and that she
should be exempted from the citizenship exam, as she was not medically capable
of completing this exam at that time, because of these medical problems.
[18]
In his letter to the applicant, the
citizenship judge did not provide detailed reasons for his decision to refuse
to recommend the use of ministerial discretion, other than to say that:
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).
[19]
In his notice to the Minister, the citizenship judge noted
the following:
Applicant is basically
healthy – see Doctors’ comments. Despite protestations, speaks and understands
basic English.
[20]
In Abdule v. Canada (Minister of Citizenship and Immigration),
[1999] F.C.J. No. 1524 (QL), Madam Justice Donna McGillis considered whether a
citizenship judge erred in deciding not to recommend an exemption from the
knowledge requirement under the Act. In granting the application, Justice
McGillis wrote the following at paragraph 18:
¶ 18 In
outlining her reasons for refusing to make a recommendation for the exercise of
discretion, the citizenship judge noted that the applicant had failed to
provide "any evidence" to establish, among other things, that she had
"a physical disability or disease severe enough to impair the learning
process". However, to the contrary, the applicant had adduced two letters
from a physician outlining medical reasons concerning her inability to learn.
As a result, the statement of the citizenship judge that the applicant had not
adduced "any evidence" establishes unequivocally that she either
failed to consider relevant evidence or misapprehended the evidence before her.
The citizenship judge therefore erred either by failing to consider the medical
evidence or by misapprehending it.
[21]
In Henoud, above, Madam Justice Johanne Gauthier
took a slightly different approach in considering the citizenship judge’s
comment to the affect that the applicant had not provided any evidence that
special circumstances existed that would justify recommending the exercise of
ministerial discretion. Justice Gauthier concluded that when the citizenship
judge stated that there was no evidence, he meant that there was no evidence that
could prompt the citizenship judge to make such a recommendation, as opposed to
there being no evidence that was presented by the applicant.
[22]
In light of the fact that the citizenship judge spoke of
evidence that would “justify” him making such a recommendation, and that his notice
to the Minister makes reference to the comments by the applicant’s doctor, I
believe that the present case is more in line with Justice Gauthier’s analysis.
Since the evidence before me is insufficient to overcome the presumption that
the decision-maker considered all of the evidence submitted, I am left to
consider whether the citizenship judge’s conclusion was patently unreasonable,
in light of the evidence before him.
[23]
While the applicant’s doctor clearly stated that she should
be exempt from taking the citizenship exam due to her medical problems, as
noted above, he also stated in his written medical opinion that the condition
preventing her from meeting the requirements of the Act was not permanent.
[24]
While I am sympathetic to the fact that the applicant has
experienced much hardship in her life, including her recent medical problems, I
cannot conclude that the citizenship judge’s decision not to recommend the use
of ministerial discretion pursuant to subsections 5(3) and 5(4) of the Act was based
on an erroneous finding of fact that he made in a perverse or capricious manner
or without regard for the material before him, such that it was patently
unreasonable and should be set aside.
[25]
For the above reasons, this citizenship appeal is denied.
[26]
Having said that, I wish to emphasize once again that I
sympathize with the fact that the applicant has faced many challenges in her life,
and that she was not afforded the opportunity to attend school in Afghanistan. It is therefore understandable that she
would find the process of mastering the content of the 45-page booklet prepared
by Citizenship and Immigration Canada to be able to respond to a series of
questions before a citizenship judge, to be quite difficult.
[27]
However, it remains that becoming a Canadian citizen is a
great privilege and that, in order to fully exercise the rights and
responsibilities associated with citizenship, one is required to have a basic
knowledge of Canada. The applicant has only been
in this country since 2001, and already she has made a lot of progress in that
respect, but not enough to meet the requirements of the Act. I have no doubt
that her knowledge will continue to improve with the help of her family, so
that when she is ready to re-apply for citizenship, she will be successful.
JUDGMENT
The citizenship appeal is denied.
Pierre Blais
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