A Successful Closed-Mind Argument in the Citizenship Setting

A basic principle of administrative law is that a decision-maker must approach its decisions with an open mind. Demonstrating that a decision-maker had a "closed mind", however, is extremely difficult. A decision-maker bent on refusing an application come what may will, if clever enough, keep his or her prejudices to him or herself.

Interestingly, the applicant in Kalkat v. Canada (Citizenship and Immigration), 2012 FC 646 was successful in demonstrating that the decision-maker had a closed mind. Ms. Kalkat was appealing a decision of a citizenship judge to deny her application for citizenship. Originally from India, the appellant arrived in Canada in 2005, but never learned English or French. Unable to understand the questions, the appellant recorded no answers in the citizenship test which citizenship applicants must take.

Ordinarily, failure to demonstrate an adequate knowledge of one of the country's official languages or the responsibilities and privileges of citizenship is fatal to an application for citizenship: see s. 5 of the Citizenship Act. But there resides in the minister (and his delegates) a discretionary power to waive these requirements on humanitarian and compassionate grounds: s. 5(3). Here, Ms. Kalkat provided a medical opinion explaining her learning difficulties: in fact, Ms. Kalkat struggled to read and write in her native language, never mind English and French.

There was some dispute about what transpired at the hearing before the citizenship judge, but Noël J. was satisfied that during the hearing the judge made the following comments:

-   Somebody who does not speak English or French will never be Canadian.

-   Tomorrow, I will grant citizenship to 800 people who all speak French or English; they all passed the test! Your lawyer has written to us that you cannot be able to learn about our country and language. Unfortunately, we receive this argument from hundreds and thousands of people.

-   The medical opinion on record was just an opinion of a person not as a doctor because doctors are not linguistic experts.

-   I am a judge and I apply the law, my first wife was Russian and my second wife was Romanian; they came as immigrants and learned.

-   During the hearing, I observed that you seem to understand all my questions and that you were able to converse fluently with your interpreter.

-   Many other people have trouble learning; some work harder at learning and some don’t and you should have learnt with the help of your husband and children.

-   If a negative decision is rendered, you can go to the Federal Court of Appeal and get an audition.

During the hearing, the citizenship judge also showed pictures of his daughter, married to the son of former Prime Minister Paul Martin (at para. 38).

The first comment is particularly damning, as it is strong evidence that the citizenship judge had a closed mind: he would not be open to persuasion that he ought to exercise his discretion on humanitarian and compassionate grounds. Thus, Noël J. concluded:

[42]           Some of the language used during the hearing by the citizenship judge creates an impression of an individual that has no intention of objectively considering whether to make a recommendation to waive the requirements of the Act. Based on the applicant’s affidavit, the judge believed that nobody would become a Canadian citizen if they were unable to speak one of the two official languages unless they had a complete intellectual disability. As mentioned, his ex-wives’ personal experiences showed that it was possible to learn another language and so the applicant could learn another language.

[43]           In that context, even if the decision remains highly discretionary, how can the decision maker appear to assess the facts of the case with an open mind? The citizenship judge, by expressing himself in such a way, exhibited an attitude of having already come to the conclusion that he would not recommend a waiver to the Minister based on special circumstances. More is expected of citizenship judges in such cases. It is of utmost importance that, prior to taking any decision in relation to citizenship matters, judges do not exhibit orally or otherwise an attitude which demonstrates they will not objectively assess the facts of the case. Sadly, this is precisely the impression given by the judge in this case.

Bolstering Noël J.'s conclusion was the citizenship judge's apparent refusal to listen to submissions made by counsel for Ms. Kalkat. Thus, the appeal was allowed.

My own citizenship test will take place in probably a year from now. I had better start practicing...