COURT NOT PERSUADED BY APPLICANT'S EXCUSE OVER WIFE HOSPITALIZED

The Federal Court was not persuaded by an applicant's argument that he couldn't concentrate at the citizenship hearing because his wife had spent two days in the hospital.

Al-Kaisi v. Canada (Minister of Citizenship and Immigration)

Between
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.

(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:

·        1) 

Did the Citizenship Judge breach the duty of fairness owed to the Applicant by failing to adjourn the hearing? 

·        2) 

Did the Citizenship Judge err by providing insufficient reasons on the Applicant's failure to meet the knowledge requirement? 

·        3) 

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

·        5. 

(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

·        5. 

(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

·        A. 

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.

·        B. 

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.

·        C. 

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.

SERGIO R. KARAS QUOTED IN TODAY'S NATIONAL POST STORY ON LANGUAGE TESTING, DEAF APPLICANT

I am quoted in today's National post front page story:

Dmitri Smirnov, a deaf Russian painter, refused permanent residency in Canada because he failed verbal language tests | Canada | News | National Post

Deaf Russian painter refused permanent residency in Canada because he failed verbal language tests

John Ulan/National Post

In his application, Dmitri Smirnov also included results from Canadian Hearing Society tests for his abilities in sign language: 9.2 out of 10 for expressive skills (analogous to “speaking”) and 9 out of 10 for receptive skills (analogous to “listening”).

A Russian painter, deaf since birth, has been refused permanent residency in Canada because he did not meet the language proficiency requirement when tested verbally, despite getting near perfect scores when tested using sign language.
The decision to reject Dmitri Smirnov’s bid to remain in Canada because he did not meet listening and speaking language requirements angered deaf advocates who blasted it as discriminatory and called for American Sign Language to be seen as equivalent to English and French for immigration purposes.
“I’m shocked that the criteria of verbalizing and speaking is necessary to come to Canada,” said Chris Kenopic, president and chief executive officer of the Canadian Hearing Society. “Rejecting people from our country because of that is very unfortunate.”I’m shocked that the criteria of verbalizing and speaking is necessary to come to Canada
Speaking through an American Sign Language interpreter, Mr. Kenopic said he is offended by the decision and what it says about the government’s view of deaf citizens.
“The issue is that the federal government is not recognizing sign language as a means of communication. It leads me to ask, how do they see me?” he asked.
Mr. Smirnov was born deaf in Russia and primarily communicates using sign language. He found schools in Russia not sufficiently adapted for deaf students and moved to the United States, where he became fluent in American Sign Language.
He moved to Canada in 2006 and has lived and worked here as a commercial and residential painter. His work permit expires in a year and he applied to stay in Canada as a permanent resident.
Among the requirements is language proficiency in either of Canada’s official languages. This proved difficult.
With his International English Language Testing System reading and writing marks, test officials noted that due to Mr. Smirnov’s extreme hearing and speaking difficulties he was exempt from the speaking and listening tests. Instead, they guessed, according to court records, giving him marks “notionalized” from his other marks.
In his application, Mr. Smirnov also included results from Canadian Hearing Society tests for his abilities in sign language: 9.2 out of 10 for expressive skills (analogous to “speaking”) and 9 out of 10 for receptive skills (analogous to “listening”).

This case illustrates the difficulties involved in attempting to standardize the immigrant section criteria to ‘one size fits all’

In November, Mr. Smirnov’s application was refused. An immigration officer was not satisfied he met the official language proficiency requirement.
Mr. Smirnov appealed to the Federal Court of Canada, arguing the sign language marks should have been taken into account and claiming the rules discriminate against the deaf.
Mr. Smirnov’s Ottawa lawyer, Peter Stieda, argued the requirements to read, listen, speak and write in English or French violate Mr. Smirnov’s Charter rights, which guarantee the law will apply equally to all without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
No deaf person could become a permanent resident under the experience class under the current regulations and the government needs to treat sign language as equivalent to fluency in English or French, said Mr. Stieda.
In court, the government argued the immigration officer’s decision to reject Mr. Smirnov was reasonable.
The government said Mr. Smirnov did not present evidence that deafness can damage reading and writing marks so no special accommodation was required, and the sign language marks became irrelevant since all of Mr. Smirnov’s other language testing was below what is required.
Federal Court Justice Richard Boivin ruled last month that the facts of the case and lack of evidence adduced at trial caused him to dismiss both the Charter challenge and Mr. Smirnov’s appeal of the immigration decision.
“It is a deeply disappointing decision. Mr. Smirnov clearly was able to demonstrate he was able to integrate into in the community,” said Mr. Stieda.
“This case illustrates the difficulties involved in attempting to standardize the immigrant section criteria to ‘one size fits all’ and to remove the human decision-making element from the equation,” said Sergio R. Karas, a Toronto immigration lawyer and past chair of the Ontario Bar Association’s Citizenship and Immigration Section.
“The lack of flexibility in applying the language requirements to applicants who are very well qualified for their positions and have proven that they can function without problems in the work environment leads to ridiculous results,” he said.
National Post

WHAT LANGUAGE WILL WE SPEAK IN TWENTY YEARS?

There is a seismic change in Canada and no one is paying attention:

Languages to come under census microscope - Canada - CBC News

NEW LANGUAGE RULES FOR CITIZENSHIP

News Release — Minister Kenney announces new language rules for citizenship applicants

News Release — Minister Kenney announces new language rules for citizenship applicants



Ottawa, September 28, 2012 — Most citizenship applicants will soon be required to provide up-front objective evidence of their language ability at the time they apply, Citizenship, Immigration and Multiculturalism Minister Jason Kenney announced today.



This change will be implemented as of November 1, 2012. Currently, Citizenship and Immigration Canada (CIC) assesses the language ability of applicants, aged 18–54, solely through interactions with CIC staff and by using the results of the citizenship knowledge test.



“Extensive research has consistently shown that the ability to communicate effectively in either French or English is a key factor in the success of new citizens in Canada,” said Minister Kenney. “We believe it is important that new citizens to be able to participate fully in our economy and our society.”



The Citizenship Act already requires that applicants be able to communicate in one of Canada’s official languages. This regulatory change will not increase the language level required but will change the way that citizenship applicants aged 18–54 demonstrate their language ability.



Under the old rules, there was no objective way to test language abilities of applicants. Under the new rule, applicants must provide objective evidence that they meet the language requirement, achieving the Canadian Language Benchmark/Niveau de compétence linguistique canadien 4 in speaking and listening, when they file their application. Applicants will be required to submit acceptable evidence, such as:



the results of a CIC-approved third-party test; or

the evidence of completion of secondary or post-secondary education in English or French; or

the evidence of achieving the appropriate language level in certain government-funded language training programs.

While CIC will continue to use the applicant’s interaction with CIC staff and with citizenship judges as part of the language ability assessment, the new regulations mean that applicants must first provide objective evidence that they meet that requirement when they file their application. CIC will return the applications of those who do not provide evidence of language ability up front, enabling CIC to focus resources on processing those who do meet the requirements.



The requirement for adult applicants to provide objective evidence of their language ability with their citizenship submission applies to every application received as of November 1, 2012.