Abrar v. Canada (Minister of Citizenship and
Immigration)
Between
Kousar Abrar, Applicant, and
The Minister of Citizenship and Immigration, Respondent
Kousar Abrar, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2014] F.C.J. No. 585
2014 FC 550
Docket: T-139-13
Federal Court
Calgary, Alberta
Gagné J.
Heard: June 2, 2014.
Judgment: June 6, 2014.
Docket: T-139-13
Federal Court
Calgary, Alberta
Gagné J.
Heard: June 2, 2014.
Judgment: June 6, 2014.
(23 paras.)
JUDGMENT AND REASONS
1 GAGNÉ
J.:-- This is an appeal under subsection 14(5) of the Citizenship
Act, RSC, 1985, c C-29 [Act], section 21 of the Federal Courts Act, RSC, 1985, c F-7, and
Rule 300(c) of the Federal Courts Rules, SOR/98-106 [Rules],
from the decision of a Citizenship Judge, dated October 31, 2012, denying the
applicant's Canadian citizenship application for failing to meet the knowledge
requirement, pursuant to paragraph 5(1)(e) of the Act. The Citizenship Judge further considered whether to
recommend the exercise of the respondent's discretion under subsections 5(3) or
5(4) of the Act, but found that the applicant had not presented evidence as to
any special circumstances or hardship to justify it.
2 The
applicant, who represented herself at the hearing before the Citizenship Judge,
argues that she had not been aware that a request for special relief could be
made and that she was not afforded the opportunity to present such evidence.
Had it been the case, she would have presented medical evidence demonstrating
that she suffers from anxiety and panics attack when in a crowd.
3 For
the reasons discussed below, this appeal will be dismissed.
Background
4 The
applicant, Kousar Abrar, is a citizen of Pakistan who landed in Canada as a
permanent resident on August 14, 2006. Her application for Canadian citizenship
was received by Citizenship and Immigration Canada on September 29, 2010.
5 The
Certified Tribunal Record shows that the applicant failed the written test
administered by the Immigration Officer and that as a consequence, she was
referred to a Citizenship Judge for a hearing that was held on October 31,
2012. At the hearing, the Citizenship Judge administered an oral knowledge
test.
6 By
letter dated October 31, 2012, the Citizenship Judge notified the applicant
that her citizenship application was non-approved, as she failed to demonstrate
through her responses to the test questions the requisite knowledge of Canada
and of the responsibilities and privileges of citizenship as per paragraph
5(1)(e) of the Act. The
applicant had answered 12 out of 20 questions correctly thereby failing to
obtain the required passing grade of 75%.
7 The
Citizenship Judge further explained that, as he found the applicant to have
failed the knowledge requirement under paragraph 5(1)(e) of the Act, he proceeded, in accordance with subsection 15(1), to
consider whether to make a favourable recommendation to the Minister of
Citizenship and Immigration [Minister] to exercise his discretion to grant
citizenship under subsections 5(3) or 5(4) of the Act. Upon the review and
assessment of all of the applicant's materials before him, including the
supporting information filed by her, the Citizenship Judge found that the
applicant failed to present sufficient evidence of any compassion-worthy
circumstances or special hardship warranting a favourable recommendation.
Issues and Standard of Review
8 The
respondent raises a preliminary argument, objecting to the introduction of the
applicant's affidavit, as it fails to conform to Rule 80(2.1) of the Rules,
which requires a jurat in a prescribed form to be appended to an affidavit by
someone who does not speak English or French. The respondent argues that the
applicant's affidavit, as it has no translator's jurat attached, should carry
little or no weight (Liu v Canada (Minister of
Citizenship and Immigration), 2003 FCT 375 at paras
9-13; Velinova v Canada (Minister of Citizenship and
Immigration), 2008 FC 268). Considering that the facts
found in her affidavit form the heart of this judicial review, adds the
respondent, her appeal ought to be dismissed.
9 While
I agree that the facts found in the applicant's affidavit are crucial for this
appeal, I have a hard time understanding how she passed the language
requirement for citizenship, as set forth in paragraph 5(1)(d) of the Act, if she does not somewhat
understand English. Under those circumstances, I will exercise the discretion
granted to me by section 3 of the Rules and accept the applicant's affidavit,
as it is in the interest of justice to do so (Zaldana v
Canada (Minister of Citizenship and Immigration), 2013
FC 1156).
10 That
said, this appeal raises the issue as to whether the Citizenship Judge's
decision was reasonable, in that:
it was not based on an
erroneousfinding of fact made in a perverse or capricious manner or without
regard to the evidence before him; and
the Citizenship Judge's
reasoning was adequate.
11 The
applicant argues that the standard of review for adequacy of reasons is
correctness (Pourzand v Canada (Minister of Citizenship
and Immigration), 2008 FC 395 at para 21). However,
since the decision of the Supreme Court of Canada in Newfoundland
and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 [Newfoundland Nurses], the adequacy of reasons is to be subsumed under an analysis of
reasonableness. As such, the respondent argues that the decision is only
amenable to judicial review in the following instances: if the applicant
demonstrates that the written reasons preclude understanding of how the
Citizenship Judge arrived at his final determination; if the decision has no
basis in the evidence; and if the reasons exclude the result from the range of
acceptable, rational and possible outcomes.
12 Consequently,
the applicable standard of review for the issue raised by this appeal is
reasonableness. The law is well established that a Citizenship Judge's findings
with regard to the adequacy of an applicant's knowledge of Canada, as well as
his decision to recommend a waiver by the Minister under subsection 5(3) or
5(4) of the Act, are to be accorded a substantial degree of deference (Zhou v Canada (Minister of Citizenship and Immigration), 2013 FC 313 at paras 10-11).
Analysis
13 The
applicant argues that at the oral interview, the Citizenship Judge failed to
ask her to present evidence of her special circumstances, which could justify a
positive recommendation under subsections 5(3) or 5(4) of the Act. The
applicant states that she suffers from anxiety and panic attacks, which not
only affected her test performance, but rendered her unable to raise these
issues on her own. The applicant filed medical letters to support her
affidavit, which note her health problems. She also further submits that, in
addition to her health problems, she raises and cares for her five children
(three still being under 18 years of age), as well as works a full time job.
These special circumstances warrant a discretionary granting of citizenship.
None of this evidence was before the Citizenship Judge.
14 In
support of her position, the applicant cites two cases: Navid
Bhatti v Canada (Minister of Citizenship and Immigration), 2010 FC 25 [Bhatti]
and Chaudhary v Canada (Minister of Citizenship and
Immigration), 2013 FC 1003 [Chaudhary]. In both cases, the Court granted the applicant's appeal as the
Citizenship Judge failed to consider evidence that was before him.
15 As
for the respondent, he considers the Citizenship Judge's decision to be
reasonable, reminding the Court that a grant of citizenship from a country
where one was not born is a privilege, not a right (Arif
v Canada (Minister of Citizenship and Immigration),
2007 FC 557). An ability to have a basic fundamental knowledge of the history,
political structure, and characteristics of Canada are reasonable requirements
to be granted the privilege of citizenship.
16 The
applicant's situation differs from that of the applicants in Bhatti and Chaudhary, as in both these cases, a specific request was made to the
Citizenship Judge to consider special or extenuating circumstances for which
evidence was adduced by the applicant. In addition, it should be noted that
Justice Mandamin's decision in Bhatti is essentially based on the inadequacy of the Citizenship Judge's
reasons, and that, as it was rendered before the Supreme Court's decision in Newfoundland Nurses, it may no longer stand as
a precedent.
17 The
applicant bears the onus of satisfying the Citizenship Judge with sufficient
evidence that she fulfils all the requirements under the Act or that her
circumstances warrant an exercise of the Minister's discretion. The evidence of
any special or extenuating circumstances must be brought to his attention
before or at the time of the hearing--not after the decision has been made. I
reproduce Justice Harrington's reasons on these criteria in full (Huynh v Canada (Minister of Citizenship and Immigration), 2003 FC 1431):
· [5] All this information was available to Mrs. Huynh when she
applied for Canadian citizenship. One of the boxes in
the form required her to state "yes" or "no" whether she
had special needs and if so, to explain. Mrs. Huynh,
who was not represented by counsel at that time, indicated that she had no
special needs. Consequently the Citizenship Judge can
hardly be criticized for not considering whether to make a recommendation to
the Minister to grant Mrs. Huynh's citizenship on compassionate grounds on
material which was not before him.
· [6] However, Mrs. Huynh submits that the process is unfair. If the
Applicant does not fare well on the writing test, she is called to appear in
person before a Citizenship Judge. The forms do not specifically state that she
is entitled to bring material which would at least give rise to the
consideration of humanitarian issues. The imperfections of the forms were noted
by Gibson J. in Maharatnam v. Canada (Minister of Citizenship and Immigration),
[2000] F.C.J. 405. He said, and I agree, that since "most applicants
appear before a Citizenship Judge without counsel, and are likely to be
unfamiliar with the existence of humanitarian and compassionate discretion, in
the interests of fairness, it might be useful to include a brief notice
regarding the existence of discretion in the "NOTICE TO
APPEAR"".
· [7] I am sure that in fact Mrs. Huynh was not fully aware of her
legal rights. However, in law she is deemed to have as much knowledge as the
Minister (Anticosti Shipping Co. v. Saint-Amand, 1959 CanLII 61 (SCC), [1959]
S.C.R. 372). [Emphasis added]
18 The
applicant's factual situation mirrors that of Mrs. Huynh rather closely. She
had not retained counsel. She failed to make the Citizenship Judge aware, by
way of a doctor's note or other evidence, that her medical condition and other
demanding personal circumstances impeded her ability to study and perform well
on knowledge tests. Similarly, it was incumbent on the applicant to alert the
Citizenship Judge to her struggles with anxiety and intimidation during the
citizenship interview. Finally, in her application for citizenship, she checked
off "No" in response to the question about any special needs
(Certified Tribunal Record at page 17). There was simply no way for the
Citizenship Judge or anyone to know of these special circumstances.
19 With
respect to the adequacy of reasons, the applicant argues that subsection 14(3)
of the Act requires the Citizenship Judge to provide more detailed reasoning in
denying her application. She cites Canada (Minister of Citizenship
and Immigration) v Li, 2008 FC 275 at para 6 for the
proposition that the reasons must be sufficient to enable the appeal court to
discharge its appellate function. With respect, in that case Justice Blanchard
was discussing the following factual scenario:
· [7] In the instant case, the Notice of the Decision to the Minister,
under the heading "Reasons", is left entirely
blank. Since there are no other statements or
endorsements which explain the Citizenship Judge's thought process, I am left
to conclude that the Judge failed to discharge his duty under subsection 14(2)
of the Act. [...]
[Emphasis added]
20 The
applicant also argues that the Citizenship Judge failed to specifically note
how he found her answers to his oral test inadequate. This is all the more the
case since the Minister has not released the test.
21 In
communicating the negative decision to an applicant, a Citizenship Judge is
required to explain the criteria used to find the applicant lacking adequate
knowledge of Canada and to specify the percentage of correct test answers
necessary to satisfy the requirement of paragraph 5(1)(e) of the Act (Abdollahi-Ghane v Canada (Attorney General),
2004 FC 741 at para 23). In the case at bar, the Citizenship Judge did just
this.
22 It
was the Minister who refused to disclose the questionnaire when it filed the
Certified Tribunal Record in this Court. I agree with the respondent that since
the applicant never objected to the refusal of the Minister to provide her with
her test answers, she cannot now submit that the Citizenship Judge erred in
failing to explain the questions put to the applicant (Liu
v Canada (Minister of Citizenship and Immigration),
2008 FC 836 [Liu]). The burden
was on her to establish any error on the part of the Citizenship judge. As
Justice Dawson explains in Liu:
· [20] In my view, these submissions fail to take into account that
the burden is upon Ms Liu to establish any error on the part of the citizenship
judge. If Ms Liu was of the view that the redactions to the tribunal record
were improper, her remedy was to proceed under Rule 318(3) of the Federal
Courts Rules, SOR/98-106. She cannot fail to challenge the tribunal's objection
to disclose information and then rely on the omissions from the tribunal record
to argue that there is no evidence to support the conclusion of the citizenship
judge. [...]
[...]
· [28] There is no discrepancy between the decision letter and the
citizenship judge's notes. The four questions listed in the decision letter
were expressly stated to be illustrative -- not exhaustive. The balance of Ms
Liu's complaints do not detract from the fact that the reasons allowed her to
know why her application for citizenship was refused and to consider whether to
pursue an appeal. The reasons fulfill the functions for which they are
required. The reasons are, therefore, adequate. [...]
23 In
conclusion, the Court finds that the applicant has failed to identify any basis
upon which her appeal could be allowed.
JUDGMENT
THIS COURT'S JUDGMENT is that:
The applicant's appeal
is dismissed; and
No costs are
granted.
GAGNÉ J.
No comments:
Post a Comment