Federal Court Decisions

     T-2660-95

ENTRE :

             DANS L'AFFAIRE DE la Loi sur la Citoyenneté

                 L.R.C. 1985, chap. C-29

             ET DANS L'AFFAIRE D'un appel de la décision

             d'un juge de la Citoyenneté

             ET DANS L'AFFAIRE DE

             KAMILIA IBRAHIM ABDALLAH

     Appelant.

     REASONS FOR JUDGMENT

TEITELBAUM, J:

     The appellant's, Kamilia Ibrahim Abdallah, application for citizenship was rejected by a citizenship judge on the grounds "that you did not have an adequate knowledge of French or English. Paragraph 5(1)(d) of the Citizenship Act provides that an applicant for citizenship must have an adequate knowledge of one of the official languages of Canada in order to qualify for Canadian citizenship".

     The citizenship judge also found that Mrs. Abdallah did not have an adequate knowledge of Canada and of the responsibilities and privileges of citizenship pursuant to paragraph 5(1)(e) of the Citizenship Act.

     The citizenship judge also states that she considered whether or not to make a recommendation for an exercise of discretion under subsection 5(3) or 5(4) of the Act and states: "I enquired at the hearing whether there were any circumstances that could justify me in making a recommendation. The evidence you brought to my attention does not, in my opinion, constitute grounds for making a recommendation under either subsections 5(3) or 5(4)". The citizenship judge fails to state what evidence she heard that made her conclude not to make use of her discretion to make a recommendation pursuant to subsections 5(3) and 5(4) of the Act.

     The citizenship judge was absolutely correct in her determination that the appellant has an inadequate knowledge of Canada's two official languages and an inadequate knowledge of Canada and of the responsibilities and privileges of citizenship.

     This fact was very evident when the appellant testified before me.

     While listening to the appellant, it became evident to me that it was not for a lack of trying that the appellant could not speak English. Her testifying before me also convinced me that she is the type of individual who would have a very difficult, if not impossible time, to learn what are the privileges and responsibilities of citizenship.

     The appellant came to Canada in 1992 together with her husband and three children. All three children, I believe, still live at home. From the time of her marriage in 1971 to the present time she devoted herself to looking after her husband and her children. The family and her home were her entire life and remains that way today.

     Her husband and her children are Canadian citizens. As a result of the appellant not being a citizen, her husband states that the appellant cannot travel with the family out of Canada to visit the husband's sister in England. The appellant states that she is unable to travel with her children outside of Canada and she, I believe, feels insecure leaving the country without a Canadian passport.

     There are times when compassion must be taken into account in citizenship applications. This is one case where I am satisfied a recommendation should be made to the Minister to grant citizenship to an individual who, no matter how much learning she is given, will not be able to comprehend more than what she now does.

     In the case of Khat [1991], 49 F.T.R. 252 at 253, Mr. Justice Strayer, of the Federal Court, Trial Division, as he then was, states with regard to the issue of the exercise of discretion:

... The power given to a citizenship judge in s. 15(1) with respect to the exercise of discretion on compassionate grounds is that of making a recommendation to the Minister in this respect. This is not a "decision" under s. 14(2).

Section 14(2) provides, however, that as a precondition to making a decision under the subsection, the citizenship judge must consider whether or not to make a recommendation under s. 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.

     As I have said, the citizenship judge does not state what factors she took into account in deciding not to make a recommendation pursuant to the Act and I would normally return this matter to the citizenship judge for a further determination.

     In the case of Dao Hoang [1990], 30 F.T.R. 88 at 90, Mr. Justice Denault, after being satisfied of the facts requiring compassion, did not return the matter to the citizenship judge but recommended that the Minister's discretion be exercised in favour of Dao Hoang.

         Mr. Justice Denault states:

According to s. 5(3) of the Act, it belongs to the Minister, in his own discretion, to waive the requirements of section 5(1)(d) or (e) of the Act, on compassionate grounds, or to grant citizenship, according to s. 5(4) in order to alleviate cases of special and unusual hardship, notwithstanding any other provision of the Act. There is a difference of opinion among judges of this court sitting in appeal from a decision of a Citizenship judge whether it is appropriate that a recommendation be made at this stage to the Minister to exercise his discretion under s. 5(4) of the Act. (See In re The Citizenship Act and In re Chute, [1982] 1 F.C. 98). In the present case, as previously said, it does not appear from the report of the Citizenship judge that she even considered the compassionate reasons stated by the applicant. The Minister, with all his inquiry powers, is in a much better position than a judge of the Federal Court to decide whether or not citizenship ought to be granted on compassionate grounds.

The facts revealed at the hearing show that this appeal cannot succeed because the appellant does not meet the requirements of s. 5(1)(d) and (e) of the Act but it is recommended that the Minister's discretion be exercised in favour of the appellant.

     The facts in this case show that the appeal cannot succeed but that it is hereby recommended to the Minister to exercise his discretion in favour of granting citizenship to the appellant.

                     "MAX M. TEITELBAUM"                              J U D G E

OTTAWA

May 16, 1997