Wang v. Canada (Minister of Citizenship and
Immigration)
Between
Helen Wang, Applicant, and
The Minister of Citizenship and Immigration, Respondent
Helen Wang, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2014] F.C.J. No. 1280
2014 FC 1187
Docket: T-754-14
Federal Court
Vancouver, British Columbia
Rennie J.
Heard: October 27, 2014.
Judgment: December 10, 2014.
Docket: T-754-14
Federal Court
Vancouver, British Columbia
Rennie J.
Heard: October 27, 2014.
Judgment: December 10, 2014.
(34 paras.)
JUDGMENT AND REASONS
· RENNIE J.:--
I. Nature of the Matter
1 This
is an appeal pursuant to section 14 of the Citizenship
Act, RSC 1985, c C-29 (Citizenship
Act) of a decision from Citizenship Judge Ann D. Dillon
(Citizenship Judge) refusing the applicant's application for Canadian
citizenship. For the reasons that follow the appeal is dismissed.
2 The
applicant is Helen Han Wang, a 44 year old citizen of China. She became a
permanent resident of Canada on February 12, 2007, and subsequently applied for
Canadian citizenship for her and her minor daughter on July 9, 2010.
3 On
September 22, 2011 the applicant passed a written citizenship test. After
completion of the test, the applicant was told to fill out a residence
questionnaire. The applicant completed and returned the questionnaire to
Citizenship and Immigration Canada in October, 2011. I will return to the
questionnaire and its significance in the disposition of this appeal later in
these reasons.
4 The
applicant did not hear back regarding her application and the questionnaire
until June, 2013, when she had made calls inquiring about the status of her
application. Citizenship and Immigration Canada responded to the applicant's
inquiry via letter, in which the applicant was told to "be advised that
your file has been referred to a Citizenship Judge for a hearing to determine
if you meet the residency requirements set out in the Citizenship
Act". The letter also indicated that a hearing can
take from 24 to 30 months to schedule, the applicant "will receive a
Notice to Appear" once a hearing with a Citizenship judge is scheduled.
The letter did not contain any further information regarding the purpose or
content of the hearing.
5 The
Notice to Appear was issued on November 7, 2013, some five months after the
June, 2013 letter from Citizenship and Immigration Canada and well before the
estimated 24 to 30 month timeframe. The Notice to Appear stated:
· The Citizenship Judge needs more information to make a decision about
your citizenship application and you must appear for a hearing. At this
hearing, the Judge will determine whether you meet all the requirements for
citizenship and you will also be asked questions to
determine if you have an adequate knowledge of English or French and an adequate
knowledge of Canada. [Emphasis in original]
6 At
the hearing on November 29, 2013 the Citizenship Judge advised the applicant
that she would administer an oral knowledge test. The applicant requested time
to study but the Citizenship Judge refused this request. The applicant again
requested time to study after the test began and she realized the test was not
a multiple choice test. The Citizenship Judge again refused. The applicant
received a failing score of 6 out of 20. A passing mark for the knowledge test
is 15 out of 20.
7 At
the end of the hearing, the Citizenship Judge told the applicant she was not
entitled to medical coverage and directed her to cut up her BC Care Card. The
Citizenship Judge also questioned the applicant about GST/HST and child tax
credits. The applicant had continued to receive the credits while she was out
of Canada, contrary to the Income Tax Act (RSC, 1985, c 1 (5th Supp)).
II. The Citizenship Judge's Decision
8 The
Citizenship Judge found that the applicant was physically present in Canada for
at least 1,095 days during the relevant period of February 12, 2007 to July 5,
2010. As such she met the residence requirements under subsection 5(1)(c) of
the Citizenship Act; however, as
the applicant did not meet the requirements of subsection 5(1)(e) of the Citizenship Act she was not granted
citizenship.
9 In
her decision, the Citizenship Judge concluded that, based on the answers to
questions posed at the hearing the applicant failed to demonstrate an adequate
knowledge of Canada and of the responsibilities and privileges of citizenship
pursuant to subsection 5(1)(e) of the Citizenship Act.
10 The
Citizenship Judge noted that in the Notice to Appear of November 7, 2013 the
applicant was advised in bold print of the possibility of a knowledge test, and
that the knowledge test questions are "based on information provided in
the study guide, Discover Canada: The Rights and
Responsibilities of Citizenship".
11 The
Citizenship Judge justified the administration of a re-test because she did not
accept that the previously completed written test was a "current reliable
indicator" of the applicant's knowledge of Canada. The Citizenship Judge
provided two reasons for this conclusion: first, she cited the fact that the
applicant had not lived in Canada since the day of her application for
citizenship as cause for concern. Second, the Citizenship Judge also commented
that some of the applicant's actions suggested she did not understand the
responsibilities of Canadian citizenship, such as the applicant's continued
collection of GST/HST and child tax benefits while not residing in Canada.
III. Issues and Standard of Review
12 This
case raises three issues on appeal:
Whether the Citizenship
Judge had jurisdiction to re-test the applicant's knowledge of Canada at the
oral hearing;
Whether adequate notice
regarding the re-test was given to the applicant such that procedural fairness
was observed; and
Whether there was a
section 7, section 15, or section 3 Canadian Charter of
Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to
the Canada Act 1982 (UK), 1982, c
11 (Charter) breach in denying
the applicant's citizenship application.
13 The
Citizenship Judge's determinations under section 5 of the Citizenship Act are a combination of mixed
fact and law, and should be reviewed on the reasonableness standard. Issues of
procedural fairness and constitutional questions are reviewed on the
correctness standard.
IV. Analysis
A. The Jurisdiction of a
Citizenship Judge to Re-test
14 Subsection
5(1)(e) of the Citizenship Act
requires an applicant for Canadian citizenship to have an adequate knowledge of
Canada:
Grant of citizenship
(1) The Minister shall
grant citizenship to any person who
· [...]
has an adequate
knowledge of Canada and of the responsibilities and privileges of
citizenship;
* * *
Attribution de la citoyenneté
(1) Le ministre attribue
la citoyenneté à toute personne qui, à la fois:
· [...]
a une connaissance
suffisante du Canada et des responsabilités et avantages conférés par la
citoyenneté;
15 Subsection
14(1) provides that a citizenship application "shall be considered by a
citizenship judge who shall [...] determine whether or not the person who made
the application meets the requirements of this Act and the regulations".
Under section 14(2), the citizenship judge shall approve or not approve the
application.
16 The
Citizenship Regulations,
SOR/93-246 (Citizenship Regulations) state:
· 11 (7) If it appears to a citizenship judge that the approval of an
application referred to the citizenship judge under subsection (5) may not be
possible on the basis of the information available, that citizenship judge
shall ask the Minister to send a notice in writing by mail to the applicant, at
the applicant's latest known address, giving the applicant an opportunity to
appear in person before that citizenship judge at the date, time and place
specified in the notice.
* * *
· 11 (7) Lorsque le juge de la citoyenneté saisi de la demande
conformément au paragraphe (5) estime qu'il lui est impossible d'approuver
celle-ci sans de plus amples renseignements, il demande au ministre d'envoyer
un avis écrit au demandeur à sa dernière adresse connue, par courrier,
l'informant qu'il a la possibilité de comparaître devant ce juge aux date,
heure et lieu qui y sont précisés.
17 Further,
subsection 15(1) of the Citizenship Regulations states that a person is considered to have "an adequate
knowledge of Canada if they demonstrate, based on their responses to questions
prepared by the Minister, that they know the national symbols of Canada and
have a general understanding of" the following subjects:
The chief
characteristics of Canadian political and military history;
The chief
characteristics of Canadian social and cultural history;
The chief
characteristics of Canadian physical and political geography;
The chief
characteristics of the Canadian system of government as a constitutional
monarchy; and
Characteristics of
Canada other than those referred to in paragraphs (a) to (d).
18 Subsection
15(2) states that a person is considered to have "an adequate knowledge of
the responsibilities and privileges of citizenship if they demonstrate, based
on their responses to questions prepared by the Minister, that they have a
general understanding of" the following subjects:
Participation in the
Canadian democratic process;
Participation in
Canadian society, including volunteerism, respect for the environment and the
protection of Canada's natural, cultural and architectural heritage;
Respect for the rights,
freedoms and obligations set out in the laws of Canada; and
The responsibilities and
privileges of citizenship other than those referred to in paragraphs (a) to
(c).
19 The
applicant submits that the Citizenship Judge did not have the jurisdiction to
re-test the applicant's knowledge of Canada at the oral hearing, given that the
applicant had already successfully passed the written knowledge test.
Specifically, it is said that this was an error because section 5 of the Citizenship Act requires the Minister to grant
citizenship to any person who meets the listed requirements. Citizenship is
therefore a statutory right under the Citizenship Act. Once an applicant has satisfied all the requirements, as the
applicant did, he or she must be granted citizenship (section 5). To withhold
citizenship in the case of an applicant who has met all the requirements is
tantamount to an arbitrary decision on the part of the Citizenship Judge.
B. Conclusion on the
Jurisdiction to Re-test
20 In
my view, the Citizenship Judge had the jurisdiction to test the applicant's knowledge
of Canada at the oral hearing. The requirements set out in subsection 5(1) of
the Citizenship Act are
conjunctive: they must all be satisfied in order for the Citizenship Judge to
recommend a grant of citizenship to the Minister: Wang v
Canada (Minister of Citizenship and Immigration), 2005
FC 719. Further, the statutory requirements are contemporaneous. The statute
does not provide that it is sufficient that at one point
in time the applicant had an adequate knowledge of
Canada; rather, the statute requires that the applicant has an adequate knowledge of Canada: Huang v
Canada (Minister of Citizenship and Immigration), 2013
FC 576 and Santos v Canada (Minister of Citizenship and
Immigration), 2008 FC 205. Thus, citizenship judges
enjoy "a wide measure of discretion" to determine, pursuant to
section 14(1) of the Citizenship Act, "whether or not the person who made the application meets the
requirements of this Act", Santos at para 23.
21 This
conclusion is also consistent with established jurisprudence. Chief Justice
Paul S. Crampton in Huang held
that a Citizenship Judge may test an applicant's knowledge of Canada
notwithstanding that the applicant previously passed a written test: Huang at para 35. Although the Citizenship
Judge may re-test an applicant, fairness requires that, "at a minimum,
applicants be re-tested where there is a valid reason to do so": Santos at para 26. In this case, the
Citizenship Judge had a valid reason to re-test.
22 In
this case, the Citizenship Judge had more than ample reason to administer a
retest. The answers to the questionnaire provided more than sufficient basis
for the decision to retest. The applicant had been absent from Canada for 134
days during the relevant period, and met the residency requirement by a mere 9
days. Her husband had never lived in Canada and lost his permanent residency
status in 2012. Curiously, although the citizenship test was conducted on
September 22, 2011, the residency questionnaire completed by the applicant, and
declared to be true, indicated that on September 17, 2011, the applicant was in
Shanghai. Further, in part 11 of the questionnaire eliciting absences from
Canada the reason "vacation of 321 days" was noted. This alone was
sufficient to trigger a re-examination. An absence from Canada for nearly a
full year is not a vacation. The Citizenship Judge concluded:
· You have not lived in Canada since the day of your application for
citizenship on July 5, 2010, more than 31/ 2 years ago, and since then you have
only visited Canada for less than six weeks in total. Accordingly, a genuine
concern arises that you have lost touch with Canada, its institutions, its
people, its values and traditions. In order to find that you have met the
knowledge requirement of the Act,
I must be satisfied that you have preserved this basic understanding of
Canada.
23 The
Citizenship Judge also concluded that the applicant did not understand the
responsibilities of Canadian citizenship because of her collection of GST/HST
credits and child tax benefits while she and her child were out of Canada for
extended periods of time. In my view, no objection can be taken to the
Citizenship Judge's decision to deny citizenship in these circumstances. The
statutory scheme affords a wide measure of discretion to the Citizenship Judge
to decide on proper information gathering procedures in order to satisfy
herself that the applicant possesses the requisite knowledge and, consequently,
the Citizenship Judge had sufficient reason to justify a re-test: Santos at para 23.
C. There was no Breach in
Procedural Fairness as the Applicant was given Adequate Notice Regarding the
Re-test
24 The
applicant contends that the Notice to Appear, dated November 7, 2013, is not
clear that the applicant would be re-tested on her knowledge of Canada. The
applicant argues that there was a distinct difference between the notice
provided prior to the written knowledge test and the notice provided prior to
the oral hearing. Specifically, prior to the written test the applicant was
provided with the "Discover Canada" study guide. In addition, the
applicant understood that the oral hearing would focus on examining residency
requirements -- not her knowledge of Canada. According to the applicant, this
understanding was reasonable given that she had already successfully passed the
written knowledge test.
25 The
applicant submits that procedural fairness requires the Minister to give notice
that is unequivocally clear, such as: "Despite your passing the written
test, at the interview the Citizenship Judge will still test you on your
English or French and Canadian knowledge and for that reason you should
re-study the study guide: Discover Canada". The applicant also argues that
re-testing an applicant who has already passed the test presents problems, such
as the extent, if any, that the results of the first test should be taken into
account.
26 The
content of procedural fairness is variable and depends on the specific context
of each case: Baker v Canada (Minister of Citizenship
and Immigration), [1999] 2 SCR 817 at paras 21-22. The
five factors to be taken into consideration when assessing the content of
procedural fairness in a given situation are: (1) the nature of the decision;
(2) the statutory scheme; (3) the importance of the decision to the individual
affected; (4) legitimate expectations; and (5) the choice of procedures: Baker at paras 23-28.
27 In
the context of the Baker
criteria, together with the fact that the degree of fairness required is
mitigated by the applicant's ability to submit a new application for
citizenship at a future date, I turn to the notices in question:
· NOTICE TO APPEAR -- TO WRITE A CITIZENSHIP TEST (dated 22 August 2011)
· [...]
· You will have to write a test about your knowledge of Canada and of
the responsibilities and privileges of citizenship. You may write the test in
English or French. To prepare for the test, you should review the study guide
provided to you. At the same time, you will also be expected to demonstrate a
knowledge of English or French.
· and
· NOTICE TO APPEAR -- HEARING WITH A CITIZENSHIP JUDGE (dated 7 November 2013)
· [...]
· The Citizenship Judge needs more information to make a decision about
your citizenship application and you must appear for a hearing. At this
hearing, the Judge will determine whether you meet all the requirements for citizenship
and you will also be asked questions to determine if you
have an adequate knowledge of English or French and an adequate knowledge of
Canada. [Emphasis in original]
28 Although
the language of the second Notice to Appear is less exhaustive than the first,
it is not vague. There is no uncertainty as to what the applicant might face --
that is, it is clearly stated that at the hearing the applicant "will also
be asked questions to determine if you have [...] an adequate knowledge of
Canada". At the very least, this notice is sufficient to trigger the
applicant's due diligence to contact Citizenship and Immigration Canada to
inquire about what types of questions may be asked, or how those questions
would be asked. The applicant did not engage in such an inquiry.
29 Finally,
this Court has affirmed that this type of Notice to Appear properly informs
applicants of the potential to be subjected to re-testing by a citizenship
judge. In a very thorough analysis of the interplay between the requirements of
procedural fairness and citizenship hearings, Justice Simon Noël held that the
very similar language of "the judge will ask you questions in order to
determine whether you have [...] adequate knowledge of Canada" in a Notice
to Appear constitutes proper notice(Al Koury v Canada
(Citizenship and Immigration), 2012 FC 536). Similarly,
the Chief Justice's decision in Huang confirms that this type of Notice to Appear does not breach an
applicant's procedural fairness rights. The Citizenship Judge's decision to
re-test the applicant's knowledge of Canada did not breach the duty of
procedural fairness.
D. Sections 7, 15 and 3 of
the Charter are not Engaged in this Case
30 The
applicant advanced three Charter
arguments; however, I conclude that neither section 7, 15, nor 3, are engaged
in this case.
31 Section
7 is primarily, but not exclusively, concerned with the rights of individuals
in the criminal justice context, including rights on search, seizure,
detention, arrest, trial and imprisonment. No principle of fundamental justice
has been identified here that can be said to have been breached. The ability to
immigrate and obtain citizenship is not among the fundamental choices relating
to personal autonomy which would engage section 7. The interests of the
applicant in obtaining citizenship are far removed from those considered in the
jurisprudence with respect to section 7; Tabingo v
Canada (Minister of Citizenship and Immigration), 2013
FC 377 affd, Shahid v Canada (Citizenship and
Immigration), 2014 FCA 191.
32 The
applicant argues that section 15 is engaged because she is discriminated
against as a woman in Canada seeking citizenship while her husband remains in
China. This argument fails at the threshold requirement that the Charter applies to government action: RWDSU v Dolphin Delivery Ltd., [1986] 2 SCR
573. The applicant's argument revolves around the applicant's own decision to
pursue citizenship in Canada. This was a private family choice, outside the
scope of government action.
33 Finally,
section 3 of the Charter only
applies to "every citizen of Canada". As the applicant has not yet
obtained citizenship, this provision of the Charter does not apply to her. Specifically, section 3 states:
Every citizen of Canada
has the right to vote in an election of members of the House of Commons or of a
legislative assembly and to be qualified for membership therein.
* * *
Tout citoyen canadien a
le droit de vote et est éligible aux élections législatives fédérales ou
provinciales.
34 The
language of the provision is clear: only citizens have the right to vote. The
applicant is not a citizen, and therefore this right does not apply to her; Lavoie v Canada, [2000] 1 FCR 3 at para 41
(CA).
JUDGMENT
· THIS COURT'S JUDGMENT is that the appeal is
dismissed with costs.
RENNIE J.
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