Federal Court Decisions

Decision Information

Decision Content

Date: 20031209

Docket: T-1830-02

Citation: 2003 FC 1431

Toronto, Ontario, December 9th, 2003

Present:           The Honourable Mr. Justice Harrington                                

BETWEEN:

                                                                    NU ANH HUYNH

                                                                                                                                                       Applicant

                                                                                 and

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 Nu Anh Huynh has resided in Canada for many years. She would like to be a Canadian citizen, as is her husband. One of the requirements of the granting of citizenship is that the person "has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship" (Citizenship Act, R.S.C. 1985, c. C-29). Unfortunately, Mrs. Huynh failed the exam.


[2]                 The Minister may in its discretion waive that requirement on compassionate grounds. The Citizenship Judge who was unable to approve the application was required to consider whether to recommend to the Minister that he exercise that discretion. The Citizenship Judge did not make that recommendation. If he had, he would have had to give reasons.

[3]                 Mrs. Huynh has appealed. It seems to be conceded that she will never pass the test. However, it is submitted on her behalf that the matter be referred back to a Citizenship Judge with a direction that he or she consider Mrs. Huynh's particular situation.

[4]                 The material before me, but not before the Citizenship Judge, indicates that Mrs. Huynh has been plagued with various illnesses, including some arising from multiple injuries suffered in an automobile accident. This has led to insomnia, depression and memory problems. She was also diagnosed as mildly retarded, which combined with her medical conditions makes it impossible for her to read, write or speak English with any degree of proficiency or to retain knowledge for any period of time.

[5]                 All this information was available to Mrs. Huynh when she applied for Canadian citizenship. One of the boxes in the form required her to state "yes" or "no" whether she had special needs and if so, to explain. Mrs. Huynh, who was not represented by counsel at that time, indicated that she had no special needs. Consequently the Citizenship Judge can hardly be criticized for not considering whether to make a recommendation to the Minister to grant Mrs. Huynh's citizenship on compassionate grounds on material which was not before him.

[6]                 However, Mrs. Huynh submits that the process is unfair. If the Applicant does not fare well on the writing test, she is called to appear in person before a Citizenship Judge. The forms do not specifically state that she is entitled to bring material which would at least give rise to the consideration of humanitarian issues. The imperfections of the forms were noted by Gibson J. in Maharatnam v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. 405. He said, and I agree, that since "most applicants appear before a Citizenship Judge without counsel, and are likely to be unfamiliar with the existence of humanitarian and compassionate discretion, in the interests of fairness, it might be useful to include a brief notice regarding the existence of discretion in the "NOTICE TO APPEAR"".

[7]                 I am sure that in fact Mrs. Huynh was not fully aware of her legal rights. However, in law she is deemed to have as much knowledge as the Minister (Anticosti Shipping Co. v. Saint-Amand, [1959] S.C.R. 372).

[8]                 Consequently, I must dismiss the appeal. However, Mrs. Huynh is entitled to make a fresh application at any time and now that she is aware of her rights, and has benefit of counsel, no doubt the special circumstances of her situation will be brought to bear in such fresh application as she may choose to advance.


                                                                            ORDER

THIS COURT ORDERS that

This appeal is dismissed.

"Sean Harrington"                

line

                                                                                                                                                               J.F.C.                             


FEDERAL COURT

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                              T-1830-02

STYLE OF CAUSE:              NU ANH HUYNH

Applicant

and                                                           

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

PLACE OF HEARING:                      TORONTO, ONTARIO         

DATE OF HEARING:                        DECEMBER 8, 2003

REASONS FOR ORDER

AND ORDER BY:                               HARRINGTON J.

DATED:                                                DECEMBER 9, 2003

APPEARANCES:      

Mr. Chung Calvin Huong                                                  FOR APPLICANT

Ms. Alexis Singer                                                              FOR RESPONDENT

SOLICITORS OF RECORD:          

Chung Calvin Huong

Barrister and Solicitor

Toronto, Ontario                                                               FOR APPLICANT

Morris Rosenberg

Deputy Attorney General of Canada     

FOR RESPONDENT


FEDERAL COURT

TRIAL DIVISION

            Date: 20031209

                Docket: T-1830-02

BETWEEN:

NU ANH HUYNH

                              Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                             Respondent

                                                           

REASONS FOR ORDER

AND ORDER

                                                           

                   


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