Docket: T-815-13
Citation:
2014 FC 971
Ottawa, Ontario, October 14, 2014
PRESENT: The
Honourable Madam Justice Mactavish
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BETWEEN:
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ASLAM SHER MOHAMMAD
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Applicant
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And
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
Aslam Sher Mohammad appeals the decision of a
Citizenship Judge refusing his application for Canadian citizenship on the
ground that he had not satisfied the language requirements of the Citizenship
Act.
[2]
Mr. Mohammad submits that Rule 300(c) of
the Federal Courts Rules, which governs the conduct of challenges to
decisions of Citizenship Judges, is ultra vires the rule-making
authority of the Federal Courts Rules Committee as established by section 45.1
of the Federal Courts Act. This, he says, is because subsection 14(5) of
the Citizenship Act specifically contemplates that such challenges are
to be made by way of “appeals”, and not by
application.
[3]
According to Mr. Mohammad, in the absence
of properly enacted rules, he should be entitled to have his appeal of the Citizenship
Judge’s decision conducted by way of a de novo hearing in this Court, as
was done prior to the 1998 amendments to the Federal Courts Rules.
[4]
In the alternative, Mr. Mohammad submits
that the Citizenship Judge erred in his assessment of Mr. Mohammad’s English
language skills.
[5]
Mr. Mohammad has not persuaded me that Rule
300(c) of the Federal Courts Rules is ultra vires section 46 of
the Federal Courts Act, nor has he persuaded me that the Citizenship
Judge erred in his assessment of Mr. Mohammad’s linguistic ability.
Consequently, the appeal will be dismissed.
I.
Background
[6]
Mr. Mohammad is an Indian citizen who
became a permanent resident of Canada in 2006. He applied for Canadian
citizenship in 2009, and in February of 2011, a citizenship officer determined
that Mr. Mohammad’s application should be sent to a Citizenship Judge for language
and knowledge testing.
[7]
Mr. Mohammad appeared before a Citizenship
Judge on March 6, 2013. He passed the knowledge test with the aid of an
interpreter, but obtained a failing mark of 1 out of 6 with respect to his
knowledge of English. In a March 11, 2013 decision
letter, the Citizenship Judge denied Mr. Mohammad’s application for
Canadian citizenship on the basis that he did not have adequate knowledge of
one of Canada’s official languages, as required by paragraph 5(1)(d) of the Citizenship
Act, R.S.C. 1985, c. C-29.
[8]
The Citizenship Judge noted that, according to
section 14 of the Citizenship Regulations, S.O.R./93-246, an “adequate knowledge” of one of Canada’s official languages means that an applicant must be able to comprehend basic spoken
statements and questions, and convey orally or in writing basic information or
answers to questions.
[9]
In concluding that Mr. Mohammad had failed
the language component of the citizenship requirements, the Citizenship Judge
wrote that Mr. Mohammad “could not comprehend
basic spoken statements and questions and (or) [he] could not comprehend basic
information or answers to questions”.
[10]
The Citizenship Judge decided not to recommend a
waiver of the language requirement on compassionate grounds, and also refused
to grant citizenship on the basis of unusual hardship or services adding
exceptional value to Canada, under subsection 5(4) of the Citizenship Act.
No challenge has been brought to this latter aspect of the Citizenship Judge’s
decision.
II.
Issues
[11]
The issues raised by Mr. Mohammad may be
summarized as follows:
1.
Whether the Rules Committee of the Federal Court
had the legal authority to change the process governing appeals under the Citizenship
Act in 1998; and
2.
Whether the Citizenship Judge’s decision was
reasonable.
III.
The Vires Issue
[12]
Mr. Mohammad points out that prior to the
1998 amendments to the Federal Court Rules, S.O.R./98-106, citizenship
appeals were conducted as de novo hearings before judges of this Court
or its predecessor, the Exchequer Court, sitting as judges of the Citizenship Appeal Court. Judges could receive new evidence in these appeals. Judges could,
moreover, question applicants for Canadian citizenship and come to their own
conclusions as to whether an applicant met the requirements of the Citizenship
Act in force at the relevant time.
[13]
According to Mr. Mohammad, this practice was
consistent with the legislative intention of Parliament, as reflected in
comments made to the House of Commons and a Parliamentary committee at the time
of the enactment of the 1967 Citizenship Act, S.C. 1967-68, c. 4, and
again at the time of the enactment of the 1976 Citizenship Act, S.C.
1974-75-76, c. 108.
[14]
In 1967, the Parliamentary Secretary to the
Secretary of State confirmed in the House of Commons that the Government was
proposing the creation of a Citizenship Appeal Court “to
hear appeals from negative decisions of citizenship courts” [my
emphasis].
[15]
The 1967 Citizenship Act did not,
however, specify any particular process that had to be followed for the conduct
of citizenship appeals. Indeed, subsection 30A(7) of the Act left it to the
judges of the Citizenship Appeal Court to make rules governing the conduct of
appeals, subject to the approval of the Governor in Council. It is, however,
noteworthy that subsection 30A(5) of the Act did give the Citizenship Appeal
Court the power to confirm or reverse the decision of the Court appealed
from.
[16]
Rules subsequently created by the Citizenship
Appeal Court provided that an appeal before the Citizenship Appeal Court would
take the form of a new hearing: Rule 10(1). The Court was further empowered to
receive evidence and conduct such examination of the appellant as it deemed
appropriate: Rule 10(2).
[17]
With the abolition of the Exchequer Court in
1970, the Trial Division of the Federal Court took over the role of hearing
citizenship appeals. The Citizenship Appeal Rules were rescinded and
were replaced with the Federal Court Rules. Citizenship appeals did,
however, continue as hearings de novo, in accordance with the procedures
then in effect in the Federal Court Rules.
[18]
The Citizenship Act was amended again in
1976. Mr. Mohammad relies on a statement made to a Parliamentary Committee
by a Justice Department lawyer at the time, where counsel explained that under
the new legislation, “[t]he applicant will be given a
trial de novo before the Federal Court judge because citizenship judges
are not real judges …”. That is not, however, what the legislation
ultimately said.
[19]
Subsection 13(5) of the 1976 Citizenship Act
provided for appeals from citizenship decisions to the Federal Court. It is,
however, important to note that other than providing a 30-day appeal period,
the Act was once again silent as to the process to be followed in relation to
such appeals, leaving the creation of the appeals process to the Rules
Committee of the Federal Court.
[20]
It is, however, noteworthy that the statute no
longer gave judges the power to confirm or reverse the decision of the Court
appealed from, and I do not agree with Mr. Mohammad that we should infer
that this was merely “an oversight” by
Parliament.
[21]
In 1985, the Citizenship Act was revised
and consolidated into the Citizenship Act, R.S.C. 1985, c. C-29.
Although this legislation has recently been amended by Bill C-24, the Strengthening
Canadian Citizenship Act, 2nd Sess., 41st Parl., 2014 (as passed by the
House of Commons 19 June 2014), I understand the parties to agree that it is the
1985 version of the legislation that governs Mr. Mohammad’s case.
[22]
The appeal provisions are found in section 14 of
the 1985 Citizenship Act. Subsection 14(5) of this Act provides
that an applicant may appeal to the Federal Court from the decision of a Citizenship
Judge. Once again, other than providing for a 60-day appeal period, the Act is
silent on the process governing appeals.
[23]
In the mid-1990’s, the 1971 Federal Court
Rules were subjected to a comprehensive review and modernization process by
the Federal Court’s Rules Committee.
[24]
The Rules Committee is a statutory committee,
created under section 45.1 of the Federal Courts Act, R.S.C. 1985, c.
F-7. Subject to the approval of the Governor in Council, the Committee is
empowered to make rules “for the effectual execution
and working of any Act by or under which jurisdiction is conferred on the
Federal Court of Appeal or the Federal Court or on any judge of either court in
respect of proceedings in that court and the attainment of the intention and
objects of that Act”.
[25]
Subsection 46(2) of the Federal Courts Act
provides that rules made under this section may address “matters arising out of or in the course of proceedings under
any Act involving practice and procedure or otherwise, for which no provision
is made by that Act or any other Act but for which it is found necessary to
provide in order to ensure the proper working of that Act and the better
attainment of its objects”.
[26]
The 1990’s review of the Federal Court Rules
involved extensive study and consultation, and culminated in wholesale changes
to the Rules. Amongst other things, these changes were designed to simplify
procedures and increase efficiency.
[27]
Most importantly for our purposes, Rule 300(c)
of the 1998 Federal Court Rules provided that appeals under subsection
14(5) of the Citizenship Act would henceforth proceed as applications
under Part 5 of the Rules. Appeals would be based upon the record that was
before the Citizenship Judge, and no longer by way of hearings de novo.
These Rules were approved by the Governor in Council, and have the status of
subordinate legislation.
[28]
To succeed in his vires argument, Mr. Mohammad
must show that Rule 300(c) of the 1998 Federal Court Rules was inconsistent with the objective
of the enabling statute or the scope of the statutory mandate: Katz Group Canada Inc. v. Ontario (Health
and Long-Term Care), 2013 SCC 64, at para. 24,
[2013] 3 S.C.R. 810.
[29]
Regulations benefit from a presumption of
validity. This “favours an interpretative approach that
reconciles the regulation with its enabling statute so that, where possible,
the regulation is construed in a manner which renders it intra vires”:
Katz Group Canada Inc., above
at para. 25, emphasis in the original.
[30]
Nothing in either the Federal Courts Act
or the 1985 Citizenship Act stipulated that appeals from decisions of
Citizenship Judges had to proceed by way of de novo hearings. Since
1967, Parliament has clearly intended that decisions as to the process to be
followed in relation to citizenship appeals be left to this Court (or its
predecessors), and any comments that may have been made by a Justice Department
lawyer in 1976 do not displace this clear intent.
[31]
For a period of time, the process approved by
the Governor in Council contemplated hearings de novo. Since 1998, when
the Governor in Council approved the Federal Courts Rules now in effect,
the process has been by way of application. Hearings are now conducted on the
basis of the record that was before the Citizenship Judge, supplemented by new
evidence where, for example, issues arise as to procedural fairness or
jurisdiction. Both processes were the creation of Rules of Court, and neither
process was inconsistent with the objectives of either the Federal Courts
Act or the Citizenship Act.
[32]
As a consequence, Mr. Mohammad has not
persuaded me that Rule 300(c) of the Federal Courts Rules is ultra
vires either the Federal Courts Act or the Citizenship Act.
IV.
Was the Citizenship Judge’s Decision
Unreasonable?
[33]
Mr. Mohammad conceded at the hearing that
he did not have a strong argument that the Citizenship Judge’s assessment of
his English language skills was flawed, and I agree with that assessment.
[34]
He does, however, suggest that as the Citizenship
Act provides for an “appeal” to this Court, I
should apply the appellate standard of “palpable and
overriding error” to the decision of the Citizenship Judge. In support
of this contention, he relies on the decision in Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799, [2014] F.C.J. No. 845,
which dealt with the standard of review to be applied by the Refugee Appeal
Division of the Immigration and Refugee Board in reviewing decisions of the
Refugee Protection Division of the Board. There, Justice Phelan discussed the
differences between the appellate standard of review and that used on judicial
review.
[35]
The respondent contends that this Court has
repeatedly stated that the standard of review to be applied to decisions of
Citizenship judges on questions relating to the qualifications of candidates
for citizenship is that of reasonableness: see, for example, Zhao v. Canada (Minister of Citizenship & Immigration), 2006 FC 1536 at para. 45, 306 F.T.R. 206; Amoah v. Canada (Minister of Citizenship & Immigration), 2009 FC 775 at para 14, [2009]
F.C.J. No. 947; Chen v. Canada
(MCI), 2006 FC 85 at para. 10, [2006] F.C.J. No.
119.
[36]
I do not need to decide this issue in this case
as the choice of standard of review would not be determinative of the outcome
of Mr. Mohammad’s appeal. Whether I apply the appellate standard of “palpable and overriding error” or the reasonableness
standard established by the jurisprudence of this Court, no error in the
assessment of Mr. Mohammad’s English language skills on the part of the
Citizenship Judge has been established.
[37]
The Citizenship Judge’s decision indicates the
basis for concluding that Mr. Mohammad did not satisfy the language
requirements under paragraph 5(1)(d) of the Citizenship Act, and there
is no basis for this Court to intervene.
V.
Conclusion
[38]
For these reasons, Mr. Mohammad’s appeal is
dismissed. Given that the issue raised by Mr. Mohammad was of some
importance to the system as a whole, and in the exercise of my discretion, no
order will be made as to costs.
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