Al-Kaisi v. Canada (Minister of Citizenship and
Immigration)
Between
Ali Al-Kaisi, Applicant, and
The Minister of Citizenship and Immigration, Respondent
Ali Al-Kaisi, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2014] F.C.J. No. 806
2014 FC 724
Docket: T-2021-13
Federal Court
Toronto, Ontario
Shore J.
Heard: July 2, 2014.
Judgment: July 22, 2014.
Docket: T-2021-13
Federal Court
Toronto, Ontario
Shore J.
Heard: July 2, 2014.
Judgment: July 22, 2014.
(28 paras.)
JUDGMENT AND REASONS
SHORE J.:--
I. Overview
1 The
bestowal of citizenship from a country where one was not born is a privilege,
not a right. The citizens of Canada, through their legislative branch of
government, have established minimum requirements that one must meet if the
privilege of citizenship and the rights which ensue are to be bestowed. An
ability to communicate with other citizens and to have a basic fundamental
knowledge of the history, political structure, and characteristics of Canada
are amongst the reasonable requirements by which to be granted the privilege of
citizenship (Shah v Canada (Minister of Citizenship and
Immigration), 2012 FC 852).
II. Introduction
2 This
is an appeal, pursuant to subsection 14(5) of the Citizenship Act, RSC 1985, c C-29 and section 21 of the Federal
Courts Act, RSC 1985, c F-7, brought on behalf of the
Applicant, from a decision of a Citizenship Judge, dated October 25, 2013, in
which his application for Canadian citizenship was denied according to
paragraph 5(1)(d) and (e) of the Citizenship Act.
III. Background
3 The
Applicant, Mr. Ali Al-Kaisi, is a citizen of Iraq. In 2007, he and his wife and
their children applied for refugee protection. They were granted refugee status
by the Canadian Embassy in Syria approximately 12-18 months later.
4 The
Applicant and his family arrived in Canada on October 20, 2008, and applied for
Canadian citizenship exactly three years later, on October 20, 2011.
5 On
October 9, 2013, the Applicant attended a hearing before the Citizenship Judge,
and on October 25, 2013, the Citizenship Judge issued his decision in which he
did not approve the Applicant's citizenship application on the basis that the
Applicant failed to meet the requirements of paragraph 5(1)(d) and (e) of the Citizenship Act.
IV. Decision under Review
6 The
Citizenship Judge found that the Applicant did not meet the requirements of
paragraph 5(1)(d) of the Citizenship Act as he did not have an
adequate knowledge of either French or English. The Citizenship Judge noted
that the Applicant was unable to provide answers to simple questions and did
not demonstrate an adequate vocabulary for basic everyday communication.
7 The
Citizenship Judge also found that the Applicant did not meet the requirements
of paragraph 5(1)(e) of the Citizenship Act as he did not have an
adequate knowledge of Canada. The Citizenship Judge indicated that the
Applicant was unable to correctly answer questions related to one or more of
the subjects outlined in the Citizenship Regulations, SOR/93-246 in his assessment of his knowledge of Canada.
8 Finally,
the Citizenship Judge declined to recommend a favourable exercise of discretion
on the basis of compassionate grounds pursuant to subsection 5(3) of the Citizenship Act, or as a case of special
or unusual hardship or to reward services of exceptional value to Canada
pursuant to subsection 5(4), as the Applicant did not present any evidence of
special circumstances that would justify making such a recommendation.
V. Issues
9 The
following issues are to be decided by this Court:
Did the Citizenship
Judge breach the duty of fairness owed to the Applicant by failing to adjourn
the hearing?
Did the Citizenship
Judge err by providing insufficient reasons on the Applicant's failure to meet
the knowledge requirement?
Did the Citizenship
Judge err by failing to consider evidence and exercise his discretion to
recommend a waiver of the language and knowledge requirements?
VI. Relevant Legislative Provisions
10 Paragraphs
5(1)(d) and (e) of the Citizenship Act are relevant in this matter:
Grant of citizenship
(1) The Minister shall
grant citizenship to any person who
...
·
(d) has an adequate knowledge of one of the official languages of
Canada;
·
(e) 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:
[...]
·
d) a une
connaissance suffisante de l'une des langues officielles du Canada;
·
e) a une
connaissance suffisante du Canada et des responsabilités et avantages conférés
par la citoyenneté;
VII. Standard of Review
11 The
first question raised by the Applicant is a question of law and is reviewable
on a standard of correctness (Elfar v Canada (Minister
of Citizenship and Immigration), 2012 FC 51).
12 The
second and third questions raised are reviewable on the standard of
reasonableness (Newfoundland and Labrador Nurses' Union
v Newfoundland and Labrador (Treasury Board), 2011 SCC
62, [2011] 3 SCR 708; Desai v Canada (Minister of
Citizenship and Immigration), 2013 FC 194).
VIII. Analysis
Did the Citizenship
Judge breach the duty of fairness owed to the Applicant by failing to adjourn
the hearing?
13 The
Applicant primarily attacks the Citizenship Judge's decision for breach of
procedural fairness by arguing that he proceeded with an oral examination
despite having been informed of a problem with the Applicant's mental state.
The Applicant argues that he informed the Citizenship Judge that he was having
difficulty focusing on the questions due to fatigue from his wife having been
in the hospital two days prior to the hearing.
14 Counsel
for the Respondent objects to this argument on the basis that there is no
evidence on the record that the Applicant informed the Citizenship Judge of
this issue. The Respondent submits that this is a new issue raised by the
Applicant in an attempt to contest the results of his oral examination.
15 The
Court also approaches this allegation with some scepticism. There is no
evidence on the record to suggest that the Applicant informed the Citizenship
Judge of a weakened mental state during the hearing or that he requested an
adjournment. As pointed out by the Respondent, the record does not even contain
the medical report that the Applicant claims he submitted to the Citizenship
Judge during the hearing to corroborate his wife's hospitalization (Applicant's
Application Record [AR] at p 24). The Court finds it difficult to believe that
this key piece of evidence would be excluded from the Certified Tribunal Record
if it had in fact been provided to the Citizenship Judge.
16 The
Court also notes that the record contains a letter drafted by the Canadian
Center for Victims of Torture, which was not before the Citizenship Judge (AR
at p 22). In fact, it was drafted post-hearing.
17 Given
these irregularities, the Court finds it improbable that the Applicant's mental
state was in fact brought before the Citizenship Judge. It would appear that
the Applicant has added additional documentary evidence to the record to
support his application.
18 Without
adequate and reliable evidence on the record to substantiate the Applicant's
claim on this issue, the Court does not find that its intervention is
justified.
Did the Citizenship
Judge err by providing insufficient reasons on the Applicant's failure to meet
the knowledge requirement?
19 In
his submissions, the Applicant also submits that the Citizenship Judge was
obligated to explain why he
failed to meet the knowledge criteria of the Citizenship Act. The Applicant argues that the Citizenship Judge's failure to
explain which sections of the test he failed makes it difficult for him to
understand why he failed it and prevents the Court from discharging its
appellate function.
20 The
Court does agree with the Applicant that the Citizenship Judge's reasons
related to the knowledge requirement are inadequate. They effectively list the
general criteria outlined in the Citizenship Regulations, without any further analysis; however, the Court is nonetheless of
the view that its intervention is unwarranted.
21 The
Citizenship Judge's decision, when read as a whole, is still well within the
range of acceptable outcomes. As recently held by the Supreme Court of Canada
in Newfoundland and Labrador Nurses' Union, above, the adequacy of reasons is not a stand-alone basis for
quashing a decision. Rather, "the reasons must be read together with the
outcome and serve the purpose of showing whether the result falls within a
range of possible, acceptable outcomes" (at para 14).
22 In
this case, the Court finds that it does. In addition to his finding regarding
the Applicant's knowledge of Canada, the Citizenship Judge found that the
Applicant had not met the language requirements in order to be granted citizenship.
The Citizenship Judge noted that the Applicant was unable to answer even simple
questions on familiar topics "using a variety of short sentences with
connecting words" and "demonstrate an adequate vocabulary for basic
everyday communication" The Court finds that this determination was
sufficient, in and of itself, to deny the Applicant's application for Canadian
citizenship. Therefore, the Citizenship Judge was not required to undertake an
analysis of the results obtained by the Applicant on the knowledge portion of
the test. The Citizenship Judge's finding regarding the Applicant's language
proficiency was dispositive of the application.
Did the Citizenship
Judge err by failing to consider evidence and exercise his discretion to
recommend a waiver of the language and knowledge requirements?
23 The
Applicant submits that the Citizenship Judge erred by failing to consider the
evidence of his wife's hospitalization in considering whether to exercise his
discretion pursuant to subsections 5(3) and 5(4) of the Citizenship Act. The Applicant argues that his wife's hospitalization impeded him
from performing at the hearing and therefore could have justified a waiver of
the requirements of paragraph (1)(d) and (e) of the Citizenship Act. The Citizenship Judge
was therefore required, at least, to consider such in the reasons. The
Applicant relies on the case of Bhatti v Canada
(Minister of Citizenship and Immigration), 2010 FC 25,
87 Imm LR (3d) 166, in support of this argument, and asks the Court to use a
similar rationale in this matter.
24 To
be brief, the Court notes that the Applicant's argument on this issue is based
on a supposition that the Citizenship Judge actually had the document before
him. As discussed above, the Court is not convinced that it was; therefore, the
Court finds that this argument is without merit.
25 In
any event, even if the Court did agree that the document had been put before
the Citizenship Judge, this factor would not have been sufficient to warrant a
waiver of the requirements of the Citizenship Act. In the present case, unlike the Applicant in Bhatti, above, there is nothing on the record
that demonstrates that Mr. Al-Kaisi's capacity to take the citizenship test
would be impeded in the future.
26 The
Court notes that in the case of Bhatti, above, this Court was deciding on a case of an applicant who had
serious and permanent vision
problems caused by diabetic retinopathy, which made it difficult for her to
study or perform any written form of the citizenship test. The Court found that
Ms. Bhatti's medical condition was sufficiently serious to warrant
consideration of a waiver of the language and knowledge requirements, as it
would inevitably continue to impede her preparation for the citizenship test.
These facts are highly distinguishable from the Applicant's circumstances.
27 As
the Applicant has provided no further evidence of special circumstances to
justify a favourable recommendation to waive the requirements of paragraph (1)(d) or (e) of the Citizenship Act, the Court does not see a need to comment further on this issue.
IX. Conclusion
28 For
all of the above reasons, the Applicant's appeal is dismissed.
JUDGMENT
THIS COURT'S JUDGMENT is that the Applicant's appeal be dismissed.
Obiter:
The Court recognizes that having to reapply and
retake the citizenship test will require additional time, energy and resources
from the Applicant, however, there is no evidence on the record that he will be
unable to proceed with a new application. The Applicant can reapply for
citizenship and use the time before his next citizenship test to hone his
language skills and acquire a basic fundamental knowledge of the history,
political structure, and characteristics of Canada.
SHORE J.
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