Zourachi (Re) Federal Court Trial Division

Aliens — Naturalization — Qualifications — Knowledge of Canada — Knowledge of citizenship responsibilities and privileges — Appeals — Scope of.

This was an appeal from the refusal of an application for a grant of citizenship. The 50-year old appellant was born in Morocco. She was granted permanent resident status in 1990. The appellant had a learning disability, was illiterate and was visually impaired. At the hearing she had been unable to answer questions about Canada and the privileges and responsibilities of a Canadian citizen. The judge found her to be deficient in meeting the criteria set out in section 5(1)(e) of the Citizenship Act. He also found that she had not provided evidence to support a recommendation for the exercise of discretion under section 5(3) and 5(4) of the Act.

HELD: The appeal was allowed. It was recommended that the appellant be granted citizenship. While it was apparent that the appellant’s knowledge of Canada was not extensive, she had made a valiant effort to learn what she could in light of her limitations. It would only cause her serious grief to force her to improve her knowledge. Considering that her sister and sons were Canadian, there was no reason to deny her the privilege of being a Canadian.

Statutes, Regulations and Rules cited:

Citizenship Act, R.S.C. 1985, c. C-29, s. 5(1)(e), 5(3), 5(4).
Citizenship Regulations, s. 15.
Federal Court Rules, Rule 912.

Counsel:

Max Berger, for the appellant.
Peter K. Large, amicus curiae.

1. TEITELBAUM J.:— The appellant, Ms. Zourachi appeals from a decision of Citizenship Judge dated May 30, 1995 wherein the judge did not approve the appellant’s application for a grant of citizenship under subsection 5(1)(e) of the Citizenship Act.

BACKGROUND

2. The appellant is a 50 year old female born in Morocco. She was granted permanent resident status in Canada on December 12, 1990.

DECISION OF CITIZENSHIP JUDGE

3. The Citizenship Judge found the appellant deficient in meeting the criteria set out in paragraph 5(1)(e) of the Act (Knowledge Requirement). The appellant was unable to answer the following questions:

1. Name the first PM of Canada?
2. What is Canada Day?
3. Who represents the Queen in Canada?
4. Name the level of government?
5. Name the special rights and privileges of a Canadian citizen?
6. Name the responsibilities of a Canadian citizen?

4. The Citizenship Judge considered whether to make a recommendation for an exercise of discretion under subsection 5(3) and 5(4) of the Act but found that the appellant did not provide evidence in that regard.

APPELLANT

5. The appellant claims that she has an adequate knowledge of Canada.

LEGISLATION

1. Citizenship Appeals

6. Citizenship appeals are in essence proceedings de novo. Rule 912 of the Federal Court Rules [Division E – Citizenship Appeal Rules] reads as follows:

912. An appeal shall take the form of a new hearing and, in addition to receiving evidence, the Court shall conduct, or cause to be conducted, such examination of the parties and witnesses as it deems appropriate.

7. The Federal Court Judge may consider all the evidence before him as if the application was being made for the first time “with the exception that it is incumbent upon the appellant to show that the Citizenship Judge exercised his discretion on a wrong principle or on a complete misapprehension of the facts” or that there is some other “compelling reason” requiring the Federal Court Judge’s interference in the Citizenship Court’s decision. [See Note 1 below]

Note 1: See In the matter of Han Luk, Court File T-1704-91, decision dated June 29, 1992, [1992] F.C.J. No. 579.

2. Knowledge of Canada

8. This requirement for Canadian citizenship in set out in paragraph 5(1)(e) of the Citizenship Act which reads as follows:

5. (1) The Minister shall grant citizenship to any person who … (e) has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship; and …

9. Paragraph 5(1)(e) of the Citizenship Act requires the Citizenship Judge to question the Applicant on her knowledge of Canada and on the responsibilities and privileges of citizenship. The questions are generally based on information contained in the instructional material provided to the Applicant at the time of application.
10. Section 15 of the Citizenship Regulations sets forth the criteria for determining whether or not a person has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship:

15. The criteria for determining whether or not a person has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship are that he has a general understanding of and can answer correctly simple oral questions based on the information contained in self-instructional materials approved by the Minister and presented to applicants for the grant of citizenship respecting.

(a) the right to vote in federal, provincial and municipal elections and the right to run for
elective office;

(b) enumerating and voting procedures relating to elections; and

(c) one of the following topics chosen by the person questioning the applicant, namely,

(i) the chief characteristics of Canadian social and cultural history,

(ii) the chief characteristics of Canadian political history,

(iii) the chief characteristics of Canadian physical and political geography, or

(iv) the responsibilities and privileges of citizenship other than

(A) those referred to in paragraphs (a) and (b), and (B) where the person is a conscientious objector by reasons of his religion, his obligations to Canada during time of war.

3. Discretion

11. Subsections 5(3) and (4) of the Citizenship Act read as follows:

3. The Minister may, in his discretion, waive on compassionate grounds,
   

   (a) in the case of any person, the requirements of paragraph (1)(d) or (e); and

   (b) in the case of any person under a disability, the requirement respecting age set out in paragraph (1)(b), the requirement respecting length of residence in Canada set out in paragraph (1)(c) or the requirement that the person take the oath of citizenship.

In order to alleviate cases of special and unusual hardship or to reward services of an exceptional value to Canada, and notwithstanding any other provision of this Act, the Governor in Council may, in his discretion, direct the Minister to grant citizenship to any person and, where such a direction is made, the Minister shall forthwith grant citizenship to the person named in the direction.

12. Regarding the Minister’s and Governor in Council’s discretion to waive on compassionate grounds [subsections 5(3) and (4)], a citizenship judge must consider whether or not to recommend an exercise of discretion to the Minister if the judge is unable to approve an application for citizenship. Section 15 of the Act provides the following:

15. (1) Where a citizenship judge is unable to approve an application under subsection 14(2), the judge shall, before deciding not to approve it, consider whether or not to recommend an exercise of discretion under subsection 5(3) or (4) or subsection 9(2) as the circumstances may require.
16. (2) Where a citizenship judge makes a recommendation for an exercise of discretion under subsection (1), the judge shall

(a) notify the applicant;

(b) transmit the recommendation to the Minister with the reasons therefor; and

(c) in accordance with the decision that has been made in respect of his recommendation, forthwith on the communication of the decision to the judge approve or not approve the application.

DISCUSSION

13. The appellant testified on her own behalf. It became apparent that her knowledge of Canada or of what it is to be a Canadian citizen is not extensive. Nevertheless I am satisfied that the appellant made a valiant effort to learn as much as she was able to.
14. The testimony of her son was such that I am satisfied that the appellant has a learning disability and no matter how much “learning” the appellant would do, she would never know much more than she now knows.
15. In addition, the evidence is that the appellant’s vision is seriously impaired.
16. The appellant is illiterate. It would only cause the appellant serious grief to force her to improve her knowledge of Canada.
17. I therefore recommend that the appellant be granted her Canadian citizenship. Her sister and two sons are Canadian. There is no reason to deny the appellant the privilege of being a Canadian.

TEITELBAUM J.

JUDGMENT
The appeal is allowed.