This was an appeal from a decision of a citizenship Judge denying application for Canadian citizenship under section 5(1) (d) and (e) of the citizenship Act.
Section 5 (1) (d) and (e) read as follows:
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.
The Applicant is a citizen of Iraq. In 2007 he and his family (wife and the children) applied for refugee protection. They were granted this protection 12-18 months after filing the refugee application. They arrived in Canada in October 2011 and applied for Canadian citizenship three years later, in 2011.
In October 2013 the Applicant attended a citizenship hearing before the citizenship judge who later issued a decision denying the application for Canadian citizenship on the basis that the applicant failed to meet the abovementioned requirements.
The citizenship Judge’s decision
The Judge found that the Applicant did not have an adequate knowledge of Canada, was unable to correctly answer questions related to the subjects outlined in the citizenship Regulations.
Further, the Judge found that the Applicant did not have an adequate knowledge of English or French and was unable to provide answers to simple questions.
Finally, the Judge declined to recommend a favorable exercise of discretion of compassionate grounds pursuant to subsection 5(3) as the applicant did not present any evidence of special circumstances.
- 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?
Standard of review
For the first issue the standard of review is correctness (per Elfar v Canada (Minister of Citizenship and Immigration), 2012 FC 51)
For the last two, the standard is reasonableness (per Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62)
Did the Citizenship Judge breach the duty of fairness owed to the Applicant by failing to adjourn the hearing?
The Applicant argued that the citizenship Judge breached procedural fairness by continuing the interview after being informed that the Applicant was having difficulty focusing on the question due to fatigue. The fatigue was a result of the applicants wife being in the hospital for two days.
The Respondent objected stating that there was no evidence showing that the Applicant advised the Judge of the issue. The court approached the Applicant’s argument with skepticism noting that there is no record indicating that the Judge was informed of a weakened mental state of the Applicant.
The Applicant submitted that he provided the Judge with medical report to corroborate his story but no such report was included in the certified Tribunal Record. The court found it difficult to believe that the key piece of evidence would be excluded from the Record.
The Court noted a letter from the Canadian Centre for Victims of Torture, which was drafter after the hearing and, therefore, was not in front of the citizenship Judge.
Based on the above, the court found it improbable that the Applicant;s mental state was in fact brought to the attention of the Judge, thus making the Judge’s decision justified.
Did the Citizenship Judge err by providing insufficient reasons on the Applicant’s failure to meet the knowledge requirement?
The Applicant submitted that the Judge was obligated to explain why he failed to meet the knowledge criteria of the citizenship Act. While the court agreed that the Judge’s reasons related to the knowledge requirement were inadequate, the court relied on the Newfoundland and Labrador Nurses’ Union which established that 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”.
While read as a whole, the court found that the Judge’s reason were well within the range of acceptable outcomes.
Futher, the court noted that in his reasons the Judge pointed 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 found that this alone would be sufficient to deny the Applicant’s application for citizenship.
Did the Citizenship Judge err by failing to consider evidence and exercise his discretion to recommend a waiver of the language and knowledge requirements?
The court already determined that there was no evidence that the Applicant alerted the Judge of his weakened mental state.
However, the court also noted than in case and such document/evidence was in front of the Judge, this factor would not have been sufficient to warrant a waiver. The court extinguished this case from Bhatti v Canada (Minister of Citizenship and Immigration), 2010 FC 25, 87 Imm LR (3d) 166 where an applicant had serious and permanent vision problems, which made it difficult for her to testify. The court found that Bhatti facts were highly distinguishable from the current case.
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.