Hassan v. Canada

Counsel:
Max Berger, for the applicant.
Greg George, for the respondent.

REASONS FOR ORDER

1. KELEN J.:— This is an appeal pursuant to subsection 14(5) of the Citizenship Act, R.S.C., 1985, c. C-29 (the “Act”) from the decision of the Citizenship Judge Doreen Wicks, dated April 28, 2000, finding that the applicant did not qualify for citizenship.
2. The issue in this appeal is whether the Citizenship Judge failed to properly consider relevant factors and misapprehended the evidence in a capricious or perverse manner in the exercise of the Citizenship Judge’s discretion under subsection 15(1) of the Act with respect to the applicant’s medical inability to learn English.

FACTS

3. The applicant is a citizen of Somalia and permanent resident of Canada. On September 30, 1997, she was denied citizenship for the first time. As grounds for the refusal, Citizenship Judge Alice Napier found that the applicant was unable to “understand and respond to simple questions in either official language”.
4. The applicant appealed the refusal. By decision dated September 29, 1999 this Court referred her application for citizenship for reconsideration as to whether a recommendation pursuant to section15(1) of the Citizenship Act should be made. The Court directed that new medical evidence as to the applicant’s inability to learn a new language should be taken into account.
5. The matter was reconsidered by Citizenship Judge Doreen Wicks. In a letter dated April 28, 2000, the Judge decided that the applicant “… did not have adequate knowledge of Canada, and/or the responsibilities and privileges of Citizenship.”. The Judge further found that the applicant “did not have adequate knowledge of English or French.”. Referring to sections 5(1)(d), 14 and 15 of the Act, the Judge found that the applicant lacked the necessary knowledge to be given citizenship.
6. The Judge considered an exercise of discretion under subsection 5(3), 5(4) and 15(1) of the Act to waive the knowledge requirements on “compassionate grounds” or with regard to any “special or unusual hardship”.
7. The Judge specifically referred to the “medical opinion” which discusses Mrs. Hassan illiteracy and complete lack of schooling, and that an adult literacy program is not appropriate. The Citizenship Judge stated at page 2 of her decision:

The medical opinion states that you had never been schooled and therefore your doctor suggested that being thrust into an adult literacy program as an adult is not appropriate. I have met many applicants who have been in the same situation and have at least used the incredible Link programs we have to offer immigrants at no cost and who benefit from such teaching.

In my opinion you have many opportunities in Canada to improve on your education.

Pursuant to Subsection 14(3) of the Citizenship Act, you are, therefore, advised that, for the above reasons, your application for Citizenship is not approved.

3. The “medical opinion” is that of Issac Smith, M.A., who rendered an opinion with respect to “neuropsychological screening”. Mr. Smith is not a medical doctor. He is certified as a “Psychological Associate” by the College of Psychologists of Ontario. Mr. Smith’s report states that the applicant has:

[…] the virtual total absence of organizational, orientating and analytic skills which underlie written language. These sorts of skills are really “foundation” skills which predate and underlie the acquisition of written language itself, and are typically developed very early in a person’s educational history.

3. Mr. Smith writes that the majority of individuals in adult English language programs have foundations skills which they acquired when they learned their native language, and that Mrs. Hassan does not have these foundation skills to assist her to learn English in an adult education program. Mr. Smith also states that the neuropsychological functioning of her brain, at her age of 52 years, does not have the capacity for “new learning”.
4. Additional evidence was placed before the Court, including a letter from an adult LINC instructor of the Toronto District School Board dated January 11, 1999 confirming that the applicant has been a student of English in the LINC program since September, 1997, and since that time has made no progress and is confused by the language. This evidence was not before the Citizenship Judge and therefore cannot properly be considered by this Court. The next Citizenship Judge to consider this case will have the benefit of this evidence.

THE LAW

11. The relevant sections of the Act are 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

[…]

(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);

[…]

(4) 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.

[…]

14. (1) An application for

(a) a grant of citizenship under subsection 5(1),

[…]

shall be considered by a citizenship judge who shall,within sixty days of the day the application was referred to the judge, determine whether or not the person who made the application meets the requirements of this Act and the regulations with respect to the application.

[…]

(2) Forthwith after making a determination under subsection (1) in respect of an application referred to therein but subject to section 15, the citizenship judge shall approve or not approve the application in accordance with his determination, notify the Minister accordingly and provide the Minister with the reasons therefor.

[…]

(5) The Minister or the applicant may appeal to the Court from the decision of the citizenship judge under subsection (2) by filing a notice of appeal in the Registry of the Court within sixty days after the day on which

(a) the citizenship judge approved the application under subsection (2); or

notice was mailed or otherwise given under subsection (3) with respect to the application.

[…]

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.

5. (1) Le ministre attribue la citoyenneté à toute personne qui, 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;

[…]

(3) Pour des raisons d’ordre humanitaire, le ministre a le pouvoir discrétionnaire d’exempter:

(a) dans tous les cas, des conditions prévues aux alinéas (1)d) ou e);

[…]

(4) Afin de remédier à une situation particulière et inhabituelle de détresse ou de récompenser des services exceptionnels rendus au Canada, le gouverneur en conseil a le pouvoir discrétionnaire, malgré les autres dispositions de la présente loi, d’ordonner au ministre d’attribuer la citoyenneté à toute personne qu’il désigne; le ministre procède alors sans délai à l’attribution.

[…]

14. (1) Dans les soixante jours de sa saisine, le juge de la citoyenneté statue sur la conformité – avec les dispositions applicables en l’espèce de la présente loi et de ses règlements – des demandes déposées en vue de:

(a) l’attribution de la citoyenneté, au titre du paragraphe 5(1);

[…]

(2) Aussitôt après avoir statué sur la demande visée au paragraphe (1), le juge de la citoyenneté, sous réserve de l’article 15, approuve ou rejette la demande selon qu’il conclut ou non à la conformité de celle-ci et transmet sa décision motivée au ministre.

[…]

(5) Le ministre et le demandeur peuvent interjeter appel de la décision du juge de la citoyenneté en déposant un avis d’appel au greffe de la Cour dans les soixante jours suivant la date, selon le cas:

(a) de l’approbation de la demande;

(b) de la communication, par courrier ou tout autre moyen, de la décision de rejet.

[…]

15. (1) Avant de rendre une décision de rejet, le juge de la citoyenneté examine s’il y a lieu de recommander l’exercice du pouvoir discrétionnaire prévu aux paragraphes 5(3) ou (4) ou 9(2), selon le cas.

ANALYSIS

Jurisdiction

12. This is an appeal pursuant to subsection 14(5) of the Act which is restricted to a decision under subsection 14(2). There is no appeal under the Act from the exercise of the Citizenship Judge’s discretion under subsection 15(1). Nadon J. (as he then was) held at paragraph 15 and 16 in Zhang v. Canada (M.C.I.), [2000] F.C.J. No. 1943 (F.C.T.D.), that the power exercised by the Citizenship Judge under subsection 15(1) is not a decision under subsection 14(2) and this Court is without jurisdiction over the matter. Justice Nadon stated that the only remedy open to the applicant to review the exercise of discretion under subsection 15(1) is by way of judicial review.
13. Judges of this Court have assumed jurisdiction to consider appeals with respect to the exercise of the Citizenship Judges discretion under subsection 15(1). For that reason, the appellant reasonably brought the matter before this Court. On this basis, and to avoid redundancy of legal proceedings, I will assume jurisdiction to avoid creating the absurd result where the applicant would be required to bring an application for judicial review under section 18.1 of the Federal Court Act and seek an extension of time in doing so (which I would grant in the circumstances).

Review of the Citizenship Judge’s discretion

12. In this case, Justice Reed has already reviewed the earlier Citizenship Judge’s decision and allowed the appeal with a direction that it be reconsidered by another Citizenship Judge based on the medical evidence. The leading case where the Court has agreed to review the Citizenship Judge’s discretion under subsection 15(1) is Re Khat, [1991] F.C.J. No. 949 (F.C.T.D.), per Strayer J.:

Subsection 14(2) provides, however, that as a precondition to making a decision under that subsection, the citizenship judge must consider whether or not to make a recommendation under subsection 15(1). While it is not for this Court, sitting on appeal, to review the conclusion of the citizenship judge as to whether a recommendation should be made, in a proper case it may be open to this Court to refer the matter back to the citizenship judge if this Court is not satisfied that relevant factors have been taken into account in the exercise of that discretion. (Emphasis added.)

12. Following Khat, supra., it is open to this Court to refer the matter back to the Citizenship Judge if this Court is not satisfied that relevant factors have been taken into account in the exercise of discretion under subsection 15(1).
13. I am persuaded that the Citizenship Judge in the case at bar either failed to consider relevant evidence or misapprehended the “medical” evidence. For this reason, I am satisfied that relevant factors where not taken into account in the exercise of discretion. The Citizenship Judge compares the applicant to other applicants who have used the “incredible Link program” (sic) and that the applicant has “many opportunities in Canada to improve your education”. This is a patently unreasonable finding of fact made without regard to the evidence. This finding of fact is perverse in that the “medical evidence” establishes that the appellant does not have the foundation skills to be able to use the LINC program, i.e. adult English language education.
14. The Citizenship decision also misunderstands the fact that the applicant has been enrolled in the LINC program for two years. Regardless of whether the letter from the LINC instructor was before the Citizenship Judge, it is clear that the Citizenship Judge failed to understand that the Mrs. Hassan has taken advantage of the opportunity to improve her education, but is mentally unable to take advantage of this opportunity because of her learning disability.
15. Accordingly, this is a proper case, in accordance with Khat, supra., to refer the matter to a new Citizenship Judge because this Court is not satisfied that relevant factors have been taken into account, namely the mental inability of the applicant to benefit from the LINC program and to improve her education in the English language. The Court is without jurisdiction to recommend whether the applicant be granted or not granted citizenship. It is noted that nothing in this judgment should be taken to implicitly express an opinion whether or not the applicant ought be recommended for citizenship. That is strictly within the purview, expertise and jurisdiction of the Citizenship Judge reconsidering the case based on proper apprehension of the evidence and relevant factors.
16. Accordingly, the appeal is allowed. The matter is remitted to a new Citizenship Judge to consider under subsection 15(1) of the Act whether or not to recommend an exercise of discretion by the Minister.

KELEN J.

QL Update: 20020729
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