Citizenship judge has jurisdiction to retest applicant – Lexology

For those interested, a recent judgement upholding the right of a citizenship judge to require an oral retest of the knowledge requirements. Got it right:

20     In my view, the Citizenship Judge had the jurisdiction to test the applicant’s knowledge of Canada at the oral hearing. The requirements set out in subsection 5(1) of the Citizenship Actare conjunctive: they must all be satisfied in order for the Citizenship Judge to recommend a grant of citizenship to the Minister: Wang v Canada (Minister of Citizenship and Immigration), 2005 FC 719. Further, the statutory requirements are contemporaneous. The statute does not provide that it is sufficient that at one point in time the applicant had an adequate knowledge of Canada; rather, the statute requires that the applicant has an adequate knowledge of Canada:Huang v Canada (Minister of Citizenship and Immigration), 2013 FC 576 and Santos v Canada (Minister of Citizenship and Immigration), 2008 FC 205. Thus, citizenship judges enjoy “a wide measure of discretion” to determine, pursuant to section 14(1) of the Citizenship Act, “whether or not the person who made the application meets the requirements of this Act”, Santos at para 23.

21     This conclusion is also consistent with established jurisprudence. Chief Justice Paul S. Crampton in Huang held that a Citizenship Judge may test an applicant’s knowledge of Canada notwithstanding that the applicant previously passed a written test: Huang at para 35. Although the Citizenship Judge may re-test an applicant, fairness requires that, “at a minimum, applicants be re-tested where there is a valid reason to do so”: Santos at para 26. In this case, the Citizenship Judge had a valid reason to re-test.

22     In this case, the Citizenship Judge had more than ample reason to administer a retest. The answers to the questionnaire provided more than sufficient basis for the decision to retest. The applicant had been absent from Canada for 134 days during the relevant period, and met the residency requirement by a mere 9 days. Her husband had never lived in Canada and lost his permanent residency status in 2012. Curiously, although the citizenship test was conducted on September 22, 2011, the residency questionnaire completed by the applicant, and declared to be true, indicated that on September 17, 2011, the applicant was in Shanghai. Further, in part 11 of the questionnaire eliciting absences from Canada the reason “vacation of 321 days” was noted. This alone was sufficient to trigger a re-examination. An absence from Canada for nearly a full year is not a vacation. The Citizenship Judge concluded:

“You have not lived in Canada since the day of your application for citizenship on July 5, 2010, more than 31/ 2 years ago, and since then you have only visited Canada for less than six weeks in total. Accordingly, a genuine concern arises that you have lost touch with Canada, its institutions, its people, its values and traditions. In order to find that you have met the knowledge requirement of the Act, I must be satisfied that you have preserved this basic understanding of Canada.”

Citizenship judge has jurisdiction to retest applicant – Lexology.

About Andrew
Andrew blogs and tweets public policy issues, particularly the relationship between the political and bureaucratic levels, citizenship and multiculturalism. His latest book, Policy Arrogance or Innocent Bias, recounts his experience as a senior public servant in this area.

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