Chen v. Canada (Minister of Citizenship and
Immigration)
Between
Hong Tao Chen, Applicant, and
The Minister of Citizenship and Immigration, Respondent
The Minister of Citizenship and Immigration, Respondent
[2012] F.C.J. No. 965
2012 FC 874
Docket T-1589-11
Federal Court
Vancouver, British Columbia
Near J.
Heard: May 24, 2012.
Judgment: July 10, 2012.
Docket T-1589-11
Federal Court
Vancouver, British Columbia
Near J.
Heard: May 24, 2012.
Judgment: July 10, 2012.
(21 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 NEAR J.:-- The Applicant, Hong Tao Chen,
contests the refusal of a Citizenship Judge to approve her application for
citizenship because she did not have an adequate knowledge of one of the
official languages of Canada as required under subsection 5(1)(d) of the Citizenship Act, RSC 1985, c C-29 (the Act).
2 At
the outset, the Court agreed with the Respondent that Rule 57 of the Federal Courts Rules, SOR/98-106 should be
applied to convert this application into a proper citizenship appeal brought
under subsection 14(5) of the Act as in Shaikh v Canada
(Minister of Citizenship and Immigration), 2010 FC
1254, [2010] FCJ no 1564 at para 28. I proceeded on that basis throughout the
remainder of the hearing.
3 For
the following reasons, the appeal is dismissed.
Background
4 A
citizen of China, the Applicant became a permanent resident of Canada on
October 27, 2005. She submitted her application for Canadian citizenship on
February 19, 2009.
5 She
appeared before a Citizenship Officer for a citizenship test on March 23, 2011
where it was indicated that she would be referred to a Citizenship Judge for an
interview to assess her language skills. The interview took place on July 7,
2011.
6 In
a letter dated August 4, 2011, the Citizenship Judge determined that the
Applicant did not have an adequate knowledge of English consistent with
subsection 5(1)(d). More specifically, the Applicant was unable to:
Use short sentences to
answer simple questions on familiar topics such as "Can you tell me about
Guang Zhou, China?"
Speak in the past tense
about something that happened in the past such as "Can you tell me about
your first day in Canada."
Express satisfaction or
dissatisfaction by answering such questions as "What do you like about
your work."
7 Similarly,
the Citizenship Judge's notes from the interview state "Many questions
rephrased and all were asked
slowly. Had some answers that were lists of phrases not always matching the
question."
8 The
Citizenship Judge also declined to recommend a favourable exercise of
discretion on the basis of compassionate grounds (subsection 5(3)) or as a case
of special or unusual hardship or to reward services of exceptional value to
Canada (subsection 5(4)). She noted that the Applicant "did not present
sufficient evidence to me of special circumstances that would justify me in
making such a recommendation."
Issue
9 The
main issue before this Court is whether the Citizenship Judge committed a
reviewable error in reaching the negative decision.
Standard of Review
10 The
applicable standard of review for a decision of a Citizenship Judge, including
discretionary determinations under subsections 5(3) and 5(4), is now
reasonableness (see Amoah v Canada (Minister of
Citizenship and Immigration), 2009 FC 775, [2009] FCJ
no 947 at para 14).
11 Based
on this standard, the Court will only intervene absent justification,
transparency and intelligibility or an unacceptable outcome in light of the
facts and law (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at para 47).
Analysis
12 The
Applicant insists that the Citizenship Judge's decision should be set aside
since her performance on the day of the hearing did not reflect her normal
English proficiency due to nervousness and inexperience. She points to evidence
of having taken English classes and her volunteer work with the Buddhist
Compassion Relief Tzu Chi Foundation of Canada.
13 As
a preliminary matter, to the extent that the Applicant is presenting new
evidence with her appeal I am unable to consider it. Citizenship appeals are
not trials de novo and proceed
based solely on the record before the Citizenship Judge (see for example Lama v Canada (Minister of Citizenship and Immigration), 2005 FC 461, [2005] FCJ no 577 at para 21; Hassan
v Canada (Minister of Citizenship and Immigration),
2002 FCT 755, [2002] FCJ no 1049 at para 10).
14 Moreover,
I am not persuaded that the Citizenship Judge erred in reaching her
determination. Subsection 5(1)(d) of the Act requires that the Applicant have
adequate knowledge of one of Canada's official language, in this case English.
The Citizenship Officer raised concerns about the Applicant's language
capabilities and referred her to an interview where the Citizenship Judge
identified similar issues.
15 According
to section 14 of the Citizenship Regulations, SOR/93-246 (the Regulations), adequate knowledge of an official
language is to be assessed based on whether (a) a person comprehends basic
spoken statements and questions, and (b) can convey orally or in writing basic
information or answers to questions. In this case, the Citizenship Judge provided
clear reasons for questioning the Applicant's English knowledge that reflects
these criteria. The Citizenship Judge recognized the Applicant's inability to
use short sentences to answer questions on familiar topics, speak in the past
tense about something that happened in the past and express satisfaction or
dissatisfaction. Her notes also suggest questions had to be asked slowly and
rephrased. The answers provided were mere lists of phrases.
16 Given
the issues identified and criteria for assessing language skills, it seems the
Citizenship Judge demonstrated sufficient justification, transparency and
intelligibility when concluding that the Applicant did not have the requisite
knowledge of English. As Justice Eleanor Dawson acknowledged in Liu v Canada (Minister of Citizenship and Immigration), 2008 FC 836, [2008] FCJ no 1045 at para 14, the "citizenship
judge must be satisfied tha[t] an applicant can understand basic spoken
statements and questions in English."
17 While
the Applicant may disagree with the Citizenship Judge's factual findings, the
role of this Court is not to intervene for the purposes of reweighing the
evidence. The Applicant simply has not met the burden of establishing that the
Citizenship Judge committed a material error (see Liu, above at para 20). To the extent it was before the Citizenship
Judge, the evidence of her attendance at English as a second language classes
is not determinative. Adequate knowledge must be assessed in light of the
criteria in section 14 of Regulations as was done in this case and is reflected
in the reasons given by the Citizenship Judge (see for example similar
reasoning in Re Lai, [1998] FCJ
no 503 at para 4).
18 In
addition, I see no basis for concluding that the Citizenship Judge committed a
reviewable error in refusing to recommend the exercise of discretion based on
subsections 5(3) or 5(4) of the Act. The Citizenship Judge simply found there
was insufficient evidence of special circumstances to do so.
19 As
part of this appeal, the Applicant appears to put forward her volunteer
contributions as evidence of services of "exceptional value to
Canada" under subsection 5(4). Even if this information was clearly before
the Citizenship Judge, it does not follow that this would justify an exercise of
discretion as the threshold is high for that type of recommendation. It will
only be made in exceptional cases of services to Canada and not to a particular
company (see for example Re MH
(1996), 120 FTR 72, [1996] FCJ no 823 at paras 6-8; Fan
v Canada (Minister of Citizenship and Immigration),
2002 FCT 746, [2002] FCJ no 1014 at para 13).
20 The
Applicant requests that she be granted a second chance or retest of her English
language knowledge. Unfortunately, I cannot assist the Applicant in this regard.
Her only option for taking another test is to reapply for citizenship and
commence the process once again. I would, however, encourage her to continue to
improve her language skills and to re-apply as clearly she is a kind and caring
person and a credit to her community.
Conclusion
21 Since
the Citizenship Judge's decision was reasonable in the circumstances, the
appeal is dismissed.
JUDGMENT
THIS COURT'S JUDGMENT is that this appeal is dismissed.
NEAR J.
No comments:
Post a Comment