Huynh v. Canada (Minister of Citizenship and Immigration)

Huynh v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2003-12-09
Neutral citation
2003 FC 1431
File numbers
T-1830-02
Notes
Digest
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"
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