A late spring case this year, the NACHHATTAR KAUR KALKAT case regarding bias and failed test, highlights the standard for examining claims of bias and a lack of procedural fairness.

It is not a RQ case. It is a case in which the applicant was incapable of learning French or English, and could not learn enough about Canada to pass the test regarding Canadian knowledge.

There are specific provisions in the Act for such requirements to be waived. Indeed, they are in fact waived across the board for all applicants 55 years of age and older. But they may also be waived for "any person" on "compassionate grounds."

Nachhattar Kaur Kalkat sought a recommendation for such a waiver from the Citizenship Judge. There were sound reasons advanced to support the granting of such a waiver.

The record indicates that the CJ was predisposed to not grant such a waiver, and that the CJ precluded counself for Nachhattar Kaur Kalkat from making submissions in support of the request.

It is perhaps noteworthy that costs were awarded to the applicant, which seems to be rare. In my view this signals the extent to which the Federal Court justice particularly felt that the process had been unfair . . . one gets the sense from the opinion that Justice Noel had more than a little consternation about the Citizenship Judge's attitude and approach (frequently referencing the CJ's personal comments about his daughter marrying the son of former Prime Minister Paul Martin), and more than a little consternation about the Minister's attitude regarding procedural fairness.

My view of the take-aways from this decision:

Yes, indeed, the attitude and approach of both the Citizenship Judge and CIC (the "Minister") in this case are, indeed, disconcerting. What happened, and the arguments made, display a degree of callousness toward a disadvantaged individual and toward basic principles of natural justice. This is unacceptable.

That said, the response of the Federal Court Justice illustrates, I think, the role and importance of Judicial review, and that indeed, applicants for citizenship can generally expect to be fairly treated, justly assessed, and have their cases decided on their merits. In particular, the case illustrates that the Federal Court is not in the business of apologizing for or justifying or otherwise coddling CIC and CJs. Again and again, one sees the Federal Court justices taking demanding postures relative to CIC decision-making.

But they do see a lot of undeserving applicants as well (and one gets the sense that some of the Federal Court justices, like Justice Rennie and Justice Snider, have grown at least a little frustrated with the extent to which undeserving applicants nonetheless press their cases to the limit).

It is my strong impression that we can expect most of the Federal Court opinions to give fair and balanced accounts of what the cases are really about, what the pertinent facts and procedures are.

I, for one, appreciate that Canada has a system in which the Federal Courts will issue a decision like this one, which emphasizes just how important an impartial process is.

Moreover, I think that how rarely one sees these kinds of cases indicates the extent to which the vast majority of citizenship applicants are treated fairly in the application process.

公民法官入籍面谈违纪 拒入籍裁定撤销

一名公民法官在入籍面谈时大放厥词，批评申请人不学英语，学不会只是藉口，声称自己二任老婆都是外国人，但抵境后都努力学英语，甚至展示女儿与前总理马田(Paul Martin)儿子的结婚照，洋洋得意。申请人公民入籍遭拒后提出上诉，联邦法官认为该位公民法官违反职业操守，因此撤销原裁定。

印裔妇人Nachhattar Kaur Kalkat在原居地仅受过二年小学教育，移民后一直无法学会英文，她在申请公民入籍时附上医师的信函，证明她有英语学习障碍，希望公民法官能免除对她的官方语言要求。

但公民法官在面谈时大放厥词，例如：「不会说英语或法语者，永远不会成为真正的加拿大人」、「明年我将核准800个申请人，他们都会讲英语或法语，且通过入籍考试，你的律师说你学不会有关我们国家的事及语言，可惜这些都是陈腔滥调」。

该公民法官也不接受医师的证明信，声称该名医师不是语言专家。又道他的第一任妻子来自俄国，第二任老婆是罗马尼亚人，但她们移民之后都努力学习加拿大的一切及官方语言。

最后他还洋洋自得的向申请人展示自己女儿与前总理马田儿子的结婚照，尽管申请人的代表律师抗议，但该公民法官依然故我，并表示如果入籍被拒，可到联邦法庭上诉，取得「audition 试镜」机会。

卡尔卡在入籍遭拒后提出上诉，联邦法官认为该名公民法官在面谈时的言行有违职业操守，尽管法律赋予公民法官根据自身判断决定是否免除申请人的语言要求，但这并不代表公民法官无须做出客观裁决。

该名公民法官明显受到主观意识影响，其裁决可能有所偏颇，因此联邦法官撤销原判决，将卡尔卡的入籍申请案交由另一位公民法官重审。