Date: 20030602
Docket: T-369-02
Ottawa, Ontario, June 2, 2003
PRESENT: THE HONOURABLE JOHANNE GAUTHIER
BETWEEN:
CARMELLA KHALIL HENOUD
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an appeal from a decision of the Citizenship Judge refusing the application for citizenship by Carmella Khalil Henoud, a citizen of Lebanon, who has been a permanent resident since December 24, 1994.
[2] Judge Springate stated in his letter of refusal dated January 31, 2002, that Ms. Henoud did not meet two of the conditions set out in subsection 5(1) of the Citizenship Act, R.S.C. 1985, c. C-29 (the Act):
(i) She failed to provide satisfactory evidence that she had resided for at least three years in Canada during the four years immediately preceding the date of her application (paragraph 5(1)(c) of the Act and
(ii) She correctly answered only 11 of the 19 questions put to her to determine whether she had an adequate knowledge of Canada and of the responsibilities and privileges of citizenship, and she did not correctly answer one of the mandatory questions on this subject (paragraph 5(1)(e)).
[3] Judge Springate also stated in his letter that he considered whether he should recommend, pursuant to subsection 15(1) of the Act, that the Minister exercise his discretion under subsection 5(3) of the Act. However, he said:
[TRANSLATION] At the interview, I tried to find out whether special circumstances existed that could warrant such a recommendation. Since you submitted no evidence in that regard, I have no reason to make such a recommendation to the Minister.
[4] Lastly, it is important to note that the applications for citizenship of Ms. Henoud's two daughters, Dona Ziad Haddad (T-368-02) and Nidad Ziad Haddad (T-370-02), were refused by Judge Springate on similar grounds, and that the three appeals in these files were heard together by the Court.
Issues
[5] Ms. Henoud submits that:
(i) The Citizenship Judge erred in refusing her application based on paragraph 5(1)(e) of the Act, without considering whether the memory losses described in a medical certificate dated May 7, 1997, justified a recommendation for a waiver (subsections15(1) and 5(3) of the Act) and
(ii) The Citizenship Judge erred or was biased in finding that she failed to meet the residency requirements in paragraph 5(1)(c), even though an adjudicator had confirmed on January 6, 2000, that she did not intend to abandon Canada as her place of permanent residence (see subsection 24(2) of the Immigration Act, R.S.C. 1985, c. I-2, as amended).
Threshold issue
[6] At the hearing, Ms.Henoud objected to the Court considering certain documents in the Citizenship Judge's file that were filed by the respondent as part of an affidavit dated February 25, 2003.
[7] Ms. Henoud's only argument is that the filing was late, and that the delay caused her harm because she did not have the opportunity to familiarize herself with these documents before the affidavit was served.
[8] The respondent contends that Ms. Henoud could have obtained a copy of Judge Springate's file at any time, either by an application under section 29 of the Citizenship Regulations
SOR/93-246, or by a request under rule 317 of the Federal Court Rules, 1998, SOR/98-106. He also argues that Ms. Henoud was not taken by surprise, because the respondent's memorandum, which was served and filed on July 10, 2002, makes many references to the file of the Citizenship Judge, including notes and reasons to which Ms. Henoud now objects.
[9] The Court believes it is in the interests of justice that the entire file of the Citizenship Judge be filed. The Court notes that it could have required that this evidence be filed under rule 313 of the Federal Court Rules, 1998. The Court therefore allows the late filing of the affidavit of Ms. Dominique Toillon.
Analysis
[10] The Court notes that there was a discussion as to whether recommending or refusing to recommend an exercise of discretion under subsection 15(1) of the Act is a "decision" within the meaning of subsection 14(2) from which an appeal lies under subsection 14(5) of the Act, or whether the decision to recommend or not recommend a waiver must be challenged by way of judicial review under section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, (see Abdule v. Canada (M.C.I.), [1999] F.C.J. No. 1524 (QL) and Zhang v. Canada (M.C.I.), [2000] F.C.J. No. 1943 (QL)).
[11] Ms. Henoud filed her claim under subsection 14(5) of the Act. However, like Kelen J. in Hassan v. Canada (M.C.I.), [2002] F.C.J. No. 1049 (QL), I do not believe that Ms. Henoud's application should be dismissed on this basis. Since 1998, an appeal under 14(5) of the Act is no longer an appeal de novo and the Court's record is made up of the same evidence, whether it be an appeal or a judicial review. The other distinctions between the two proceedings are not relevant in this case because I do not believe the Citizenship Judge made a reviewable error. I therefore adopt the practical solution proposed by Kelen J. in the above-mentioned case so that a defect in form does not unnecessarily delay a ruling on this application.
[12] The standard of review of a decision to recommend or not recommend a waiver is different from the standard applicable to the assessment of the conditions in subsection 5(1) of the Act. The exercise of a discretion such as the one set out in subsection 15(1) of the Act is entitled to more deference. (See Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817; Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2).
[13] Ms. Henoud asserts that Judge Springate clearly ignored evidence in the file by failing to consider her medical certificate dated May 7, 1997.
[14] At the outset, I will state that the Court does not share Ms. Henoud's interpretation that the letter of refusal clearly indicates he did not consider any evidence in exercising his power under subsection 15(1) of the Act. Viewed in its context, I believe that the phrase "any evidence" refers to evidence that might have prompted Judge Springate to make a recommendation under subsection 15(1) (Goudimenko v. Canada (M.C.I.) [2002] F.C.J. No. 581, para. 22 (QL) (F.C.T.D.)).
[15] Ms. Henoud states in her affidavit of April 16, 2002, that she was under enormous stress during the interview with Judge Springate and that shesuffered memory losses and accordingly was unable to correctly answer the questions put to her during the interview on November 9, 2001. She referred to the handwritten note of Dr. Asswad which reads:
[TRANSLATION] This is to certify that Ms. Carmilla Henoud suffers from memory losses as a result of an acute menopausal syndrome and particularly because she stopped her hormonal treatment for fear of developing cancer.
7/5/97
Antoine F. Asswad M.D.
3550 Côte des Neiges Rd., #680
Montréal, QC H3H 1V4
Ms. Henoud did not explain in that affidavit the context in which she filed the certificate of May 7, 1997; nor did she state whether she had told Judge Springate that she continued to suffer memory losses more than four years after the note was written.
[16] The interview notes of Judge Springate state:
Dawson College - / May 7 - 97 was sick but stopped
to learn English - / treatment was afraid of cancer =
but stopped / menopause ... Stopped Dawson
[17] Apparently, the applicant raised this health problem to explain her decision to stop taking English courses at Dawson College. There is no indication that Judge Springate was advised that it persisted and could affect her performance on the test of her knowledge of Canada.
[18] The copy of the medical certificate in Judge Springate's file contained a handwritten note "[TRANSLATION] menopause" and a star beside the date. These notes do not appear on the copy attached to the affidavit of Ms. Henoud.
[19] It therefore appears from the file that Judge Springate was completely aware that Ms. Henoud had suffered memory losses in 1997.
[20] However, in the absence of evidence that this condition continued to affect her, the Court cannot conclude that Judge Springate's decision to not consider this piece of evidence as evidence that might have prompted him to make a recommendation for a waiver is unreasonable.
[21] In the circumstances, there is no reviewable error in Judge Springate's decision to ultimately refuse Ms. Henoud's application on the basis of paragraph 5(1)(e) of the Act.
[22] It is not necessary to determine whether Judge Springate otherwise erred in his analysis of Ms. Henoud's application.
ORDER
THIS COURT ORDERS:
1. The application is dismissed.
"Johanne Gauthier"
Judge
Certified true translation
Mary Jo Egan, LLB
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
DOCKET: T-369-02
STYLE OF CAUSE: Carmella Khalil Henoud v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 10, 2003
REASONS FOR ORDER: The Honourable Johanne Gauthier
DATED: June 2, 2003
APPEARANCES:
Annie Kenane FOR THE APPLICANT
Diane Lemery FOR THE RESPONDENT
SOLICITORS OF RECORD:
Annie Kenane FOR THE APPLICANT
1640 - 630, René-Lévesque Blvd. West
Montréal, Quebec H3B 1S6
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec H2Z 1X4