M.A.O. v. Canada (Minister of Citizenship and Immigration), 2003 FC 1406

Date: 20031202

Docket: IMM-459-02

Citation: 2003 FC 1406

Ottawa, Ontario, this 12^th day of December, 2003

Present:           The Honourable Madam Justice Heneghan                                      

BETWEEN:

                                                                             M.A.O.

                                                                                                                                                       Applicant

                                                                                 and

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

INTRODUCTION

[1]                 This is an application for judicial review pursuant to section 82.1(1) of the former, and now repealed, Immigration Act, R.S.C. 1985, c. I-2, (the "former Act"), of a decision of Board member Rhea Hoare (the "member") of the Immigration and Refugee Board (Appeal Division) (the "IAD"), dated January 18, 2002. In that decision, the IAD dismissed the appeal of Mr. M.A.O. (the "Applicant"), pursuant to section 77(3) of the former Act on jurisdictional grounds.

[2]                 The Applicant seeks a declaration regarding the interpretation of the term "issue", or a declaration that this term, as defined by the IAD, is contrary to sections 7 and 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), c. 11 (the "Charter") and is unconstitutional. The Applicant also requests that the January 18, 2002 decision be quashed and the matter sent back for redetermination in accordance with these reasons. Further, the Applicant requests that this Court direct that the DNA evidence be only one factor to be considered in the IAD's redetermination as to whether it has jurisdiction to hear the Applicant's appeal.

FACTS

[3]                 The Applicant is a citizen of Somalia and a permanent resident of Canada. He came to Canada and was landed on June 25, 1998 as the sponsored spouse of his wife, H.S., who had previously been granted Convention refugee status in Canada. The Applicant has three children from his first marriage in 1983 to S.S.A. He filed applications with Citizenship and Immigration Canada ("CIC") to sponsor his three children who were still in Somalia in December 1998.

[4]                 CIC requested certain information from the Applicant in order to prove his relationship to his children. His youngest son A.O., was born on October 21, 1987. His mother was the Applicant's first wife, S.S.A., who died as a result of complications from the birth of A.O. in December 1987.

[5]                 Due to the civil war in Somalia, the Applicant was unable to obtain birth registration documents for his children. There is no longer a local government office where such information was previously stored.

[6]                 By letter dated June 1, 1999, a delegate of the Respondent, visa officer Christopher Hazel, "invited" the Applicant to undergo a DNA test, in order to satisfy the Respondent that the required familial relationship existed. This letter stated that if the Applicant did not respond to this request then the visa officer would decide that he had no interest in doing the DNA test and his application for sponsorship would be refused.

[7]                 The Applicant deposes in his affidavit that he understood that unless he underwent the DNA testing, his sponsorship of his children would be refused.

[8]                 The Applicant had the DNA tests performed in August 1999. The DNA test revealed that M.A.O. was the biological father of two of his children, S.O. and L.O., but that he could not be the biological father of A.O. The Applicant claims that he believed that A.O. was his biological son and has always treated A.O. as his son. The Applicant deposes that A.O. bears his name, and the name of M.A.O.'s grandfather. He also refers to the fact that names are very important in his culture, as they show the identity of a child to the entire community.

[9]                 By letters dated September 21, 1999 addressed to A.O., and September 22 1999, addressed to his sponsor, M.A.O., a delegate of the Respondent refused the Applicant's sponsorship application for A.O. The sponsorship application was denied because A.O. was found not to fall within the definition of "son" found in section 2(1) of the former Immigration Regulations, 1978, SOR/78-172 (the "former Regulations") and therefore was not a "member of the family class", a term also defined in section 2(1).

[10]            The DNA tests proved that M.A.O. was the biological father of his two other children whom he had also sponsored for landing, S.O. and L.O. Their sponsorship applications were approved and they were permitted entry to Canada and granted permanent residence here on April 11, 2000. A.O. was left behind and is currently living in Kenya with a family friend.

[11]            As the Applicant and his family are of Muslim faith, the Applicant sought guidance from his religious leader in Toronto about how to respond to this situation. He was advised that under Sharia, or Islamic law, since A.O. was born during the Applicant's marriage to A.O.'s mother, the Applicant is considered the father of A.O. He was further advised that since A.O. bears his father's (the Applicant's) name and has rights of inheritance from his father, the Applicant owes the duty of a father to his child, as he owes to his other children.

[12]            The Applicant therefore believes, in accordance with his religious beliefs, that A.O. is his son and his "lawful issue". He continues to support A.O. financially and talks to him regularly on the phone. The Applicant launched his appeal to the IAD of the negative sponsorship decision on December 10, 1999.

[13]            The Applicant deposes in an affidavit filed before the IAD that he understands that adoption is not permitted in the Islamic religion, and that in any case A.O. is already the Applicant's legal son, hence adoption, if permitted, would not be allowed in the case of a child who is already the legal child of his father. This evidence was corroborated by Professor El Obaid Ahmed El Obaid who teaches Islamic Law at the faculty of law at McGill University. He testified at the Applicant's appeal hearing before the IAD. The Respondent contends the assertion that the Applicant cannot adopt A.O. pursuant to the Islamic law of Somalia.

[14]            The Applicant's appeal before the IAD commenced on October 12, 2000 but was adjourned to March 16, 2001 and again postponed to November 19, 2001, on which date the hearing went forward. The Applicant and his daughter, L.O., testified, as did Professor El Obaid Ahmed El Obaid, who appeared as an expert witness for the Applicant on the subject of family Islamic Law.

THE IAD's DECISION

[15]            In a decision dated January 18, 2002, the IAD dismissed the Applicant's appeal on jurisdictional grounds, finding that the Applicant's child, A.O., did not meet the definition of "son" in the former Regulations, as he could not be considered the Applicant's "issue". Therefore, A.O. was not a member of the family class as defined in the former Regulations.

[16]            The IAD found that section 9(3) of the former Act "mandates" that those applying for entry to Canada are to provide the "best evidence" possible of identity and that there was "no better evidence available presently than accurate DNA testing". The IAD concluded that it was "... not in a position to give greater weight to other evidence of relationship over and above the DNA result." The IAD also stated that once DNA results are obtained, other types of evidence regarding identity and relationship are "rendered immaterial".

[17]            The IAD then went on to interpret the term "issue" narrowly, so as to apply only to biological issue. The IAD stated that it was "totally unnecessary" to consider foreign law, such as Islamic law related to the understanding of family relationships, in interpreting the former Regulations. The IAD relied on the Federal Court decision in Canada (Minister of Citizenship and Immigration) v. Joshi (1997), 128 F.T.R. 185.

APPLICANT'S SUBMISSIONS

[18]            The Applicant submits that the interpretation of "issue" in relation to the definition of "son" in section 2(1) of the former Regulations includes "legal" as well as "biological" issue. He refers to several dictionary descriptions of the word "issue", and submits that these definitions suggest that "issue" is not limited to "biological" issue.

[19]            The Applicant argues that at English common law, "issue" referred to a legal, not a biological, definition and at common law, wedlock was usually conclusive evidence of paternity. The only two recognized sources to refute paternity were non-access and impotence: Halsbury's Laws of England, Volume 5(2) ( London: Butterworths, 1993).

[20]            The Applicant also submits that the laws of Ontario have evolved so that there is no longer the status of "illegitimacy". However, the presumption of paternity has remained if the putative father was married to the mother and acknowledged his paternity after subsequent marriage and cohabitation. The Applicant refers to Ontario's Family Law Reform Act, R.S.O. 1980, c. 152, which defines "child" as including a "person whom the parent has demonstrated a settled intention to treat as a child of his or her family." He also refers to Ontario's Children's Law Reform Act, R.S.O. 1990, c. C-12, where there is a "presumption in law" that a male person is, and shall be recognized in law as, the father of a child when he was married to the mother of the child at the time of the birth of the child.

[21]            Further, the Applicant submits that the courts are reluctant to make directions for blood tests if it is not in the child's benefit. He relies on an IAD decision, Sheikhahmed v. Canada (Minister of Citizenship and Immigration), [1999] I.A.D.D. No. 818, online: QL (IADD), where it was held that despite a lack of "definitive evidence" of paternity, the applicants were found to be the parents of their children.

[22]            In this case, the Applicant submits that A.O. is his legal issue and his "de facto dependent" because he was born of the Applicant's legal wife during their marriage. Further, the Applicant has demonstrated a "settled intention" to treat A.O. as his son. The visa officer who originally refused the Applicant's sponsorship of A.O., and in turn, the IAD have improperly restricted the interpretation of "issue" within the definition of "son" in section 2(1) of the former Regulations and erred in finding that the Applicant was not a member of the family class.

[23]            The Applicant submits that an inclusive interpretation of the term "issue", including both biological and legal issue, is the only interpretation that is consistent with the objectives of the former Act, as stated in subsections 3(c) and 3(f), the Charter and the United NationsConvention on the Rights of the Child, ratified by Canada in 1991.

[24]            The Applicant also argues that the objective of the former Act and Regulations in defining and applying the scheme of classifying familial relationships for immigration purposes as "members of the family class" was to ensure that legitimate family members of Canadian citizens and permanent residents would be given the opportunity to immigrate to Canada. Interpreting "issue" to include legal issue as well as biological issue promotes this objective. Furthermore, there is nothing in the former Act which contradicts this interpretation.

[25]            The Applicant distinguishes the case of Joshi, supra, on its facts, as it involved the step-son of the female appellant. The court found that the child was not her "natural child" and therefore not her "issue"; however, the court also found that the child had been legally adopted under Hindu law. The Applicant submits that in Joshi, supra, it was not necessary for the court to seek an inclusive definition of the term "issue" because the result, that the child was recognized as a child of the applicant within the meaning of the family class, remained the same.

[26]            The Applicant next submits that if this Court does not find that the term "issue" includes both legal and biological issue, but can only be interpreted as meaning biological issue, then such definition discriminates against the Applicant, contrary to section 15 of the Charter. He also argues that such definition infringes his section 7 Charter rights.

[27]            Concerning the section 15 argument, the Applicant submits that the restrictive interpretation of "issue" applied by the IAD prevents him, a permanent resident of Canada, from sponsoring his legal and dependent child for permanent residence in Canada and prevents him from reuniting his child with the rest of his family. This is discriminatory within the meaning of equality guarantee, in its purpose and effect.

[28]            The Applicant argues that there are two grounds for this discrimination. First, it is based on religion, due to the fact that the Applicant's religion, Islam, does not allow "legal adoption", where the child in question is already recognized under the Islamic faith as being the Applicant's legal child. The Board failed to recognize the significance of religion to the Applicant and characterized the Applicant's non-ability to adopt his son as "a personal choice, based on his religious beliefs...".

[29]            Secondly, the Applicant argues that he was further discriminated against on the basis of his national origin, as a citizen of Somalia. Due to the civil war in Somalia, the country's infrastructure was devastated, and all records of births, marriages and deaths have been destroyed. The Applicant is unable to provide the legal documents that are most often accepted by the Respondent to prove relationship between family members.

[30]            The Applicant submits that the option of DNA testing was presented by the Respondent as the only acceptable option to prove his relationship to his children. Thus, a requirement was imposed on him that would not have arisen, had he been from a country that was capable of providing paper documentation showing his legal relationship to his son.

[31]            The Applicant argues that the IAD's conclusion that the requirement of DNA evidence was not discriminatory, because the DNA evidence is the "best" evidence possible of his relationship, was erroneous. He states that DNA evidence of relationship is qualitatively different from documentary evidence of relationship and that unless DNA evidence is required of all applicants to prove relationship to their family members, such requirement is discriminatory.

[32]            The Applicant submits that discrimination occurs when it is impossible to obtain "traditional" identity documents due to the particular circumstances in the applicant's country of origin. In these cases, discrimination results when the Respondent does not allow or accept any alternative form of documentary evidence, but instead will only accept DNA test results. The Applicant submits that in this case the Respondent should have presented the option of alternative documentation to the Applicant, such as sworn declarations as to relationship by the Applicant and/or other persons who know of the relationship. Such evidence would then still be subject to a credibility assessment.

[33]            The Applicant argues that the Respondent's over-emphasis on biological relationship, as proven through DNA tests, runs counter to the developments in family law which stress the importance of social, psychological and emotional relationships in the formation of family units. Such DNA testing is often not in the best interests of children. The Applicant also points out that under Ontario's Vital Statistics Act, R.S.O. 1990, c. V-4, a child's parents are registered by means of a written statement by the parents and no DNA testing is conducted to ensure that the parents are the biological parents. The Applicant submits that these understandings of parent-child relationships must be incorporated into the context of immigration applications.

[34]            Next, the Applicant outlines the section 15 analysis, as set out by the Supreme Court of Canada in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497. He argues that the impugned law, that is, the restrictive interpretation of "issue" in the definition of "son" in section 2(1) of the former Regulations, draws a formal distinction between him and others, on the basis of one or more personal characteristics. The impugned law also fails to take account of his already disadvantaged position in Canadian society, resulting in substantively different treatment between the Applicant and others on the basis of one or more personal characteristics.

[35]            The Applicant submits that the restrictive interpretation of "issue" discriminates against Canadian citizens and permanent residents who are legally the parent of a child and who, due to their national origin, are unable to provide documentary evidence of legal relationship. Further, this restrictive interpretation fails to take account of parent-child relationships as are defined for individuals by their religious faith, such as for the Applicant in this case, by Islam.

[36]            The Applicant says that discrimination occurs on the basis of his religion because he cannot legally adopt A.O. in order to remedy the lack of birth documents for his child. A formal distinction is drawn between non-Muslim Canadian citizen and permanent resident parents, and Canada citizen and permanent resident parents who are Muslim, in that Muslim parents cannot legally adopt children, for whom they are already the legal parent, but who may not be their biological child.

[37]            The Applicant argues that the law in question fails to take into account the pre-existing historical disadvantages and vulnerability of foreign-born minorities and of religious minorities in Canada.

[38]            The Applicant submits that the second step in the Law analysis, that is, whether the differential treatment is based on an enumerated or analogous ground, is met. National origin and religion are both enumerated grounds.

[39]            The Applicant argues that the third step of the Law analysis, that is, whether the differential treatment discriminates by imposing a burden or withholding a benefit from the Applicant, is met in this case. The Applicant is denied the right to have his child live with him and his family in Canada and also denied the recognition of his parent-child relationship with A.O. This treatment perpetuates the view that the Applicant's group, that is Muslim Somalis, are less capable or worthy of recognition or value as members of Canadian society, equally deserving of concern, respect and consideration.

[40]            Moving to section 7 of the Charter, the Applicant submits that the courts have recognized that the right to family life merits protection under section 7. Failure to provide legal aid to a parent who faced losing her children was found by the Supreme Court of Canada to constitute a contravention of the "security of the person" rights in New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46.

[41]            Finally, the Applicant argues that the above alleged infringements of section 15 and section 7 are not justifiable pursuant to section 1 of the Charter. The Applicant outlines the accepted test in R. v. Oakes, [1986] 1 S.C.R. 103, and argues that the restrictive interpretation of "issue" does not further any "pressing and substantial objective" and that the proportionality branch of the Oakes test is not met.

RESPONDENT'S SUBMISSIONS

[42]            The Respondent submits that the IAD did not err in dismissing the Applicant's claim due to lack of jurisdiction. Pursuant to section 77(3) of the former Act, the IAD had jurisdiction to hear an appeal by a Canadian citizen or permanent resident who sponsored an application for permanent residence in Canada, made by a member of the family class, where such application had been refused pursuant to section 77(1). Here, A.O. was found not to be a member of the family class, as he did not meet the definition of "son" in the former Regulations and therefore the IAD lacked jurisdiction.

[43]            The Respondent notes that the Applicant does not challenge the DNA test result. Pursuant to these results, the Applicant cannot be the biological father of A.O. The Respondent further submits that there is no direct evidence that the Applicant's first wife is the biological mother of A.O. The Respondent states that the evidence introduced by the Applicant, through affidavit, from three people who attested they were present at the hospital for A.O.'s birth do not attest to actually witnessing the Applicant's first wife giving birth to A.O.

[44]            The Respondent argues that in order for the IAD to have jurisdiction over the appeal, the Applicant had the onus of proving that A.O. was indeed a "member of the family class". The Respondent submits that the IAD, having accepted the accuracy of the DNA test, was correct to reject an expanded definition of the term "issue" in light of the jurisprudence of this Court in Joshi,supra, where it was held that the word "issue" referred only to those children who are the progeny of their parents. The Respondent submits that since the IAD concluded that A.O. was not the "issue" of his sponsor, the IAD correctly determined that A.O. was not a member of the family class and it did not have jurisdiction to hear the appeal.

[45]            The Respondent says that the expansive interpretation of the term "issue" which the Applicant espouses should not be accepted, and the Ontario family law statutes and the common law do not aid the Applicant. The principles developed at common law related to the word "issue" are presumptions which are rebuttable, and the Ontario family law statutes use the word "child" as opposed to "issue", in an inclusive manner. Such statutes have as one of their objectives the payment of support for children for whom a parent is responsible and this is one major reason why such definitions are broader in scope.

[46]            The Respondent refers to the Succession Law Reform Act, R.S.O. 1990, c. S-26, where the term "issue" is defined to mean a "descendant". The Respondent relies on the definition of "descendant" in Black's Law Dictionary, 5^th Ed. (Minnesota: West Publishing Co., 1983), where "descendant" is defined as "... those persons who are in the blood stream of the ancestor."

[47]            The Respondent also submits that the United Nations' Convention on the Rights of the Child does not assist in the interpretation of the definition of "dependent son" in the former Act. The Respondent says that Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, did not hold that the principles contained in the Convention on the Rights of Child be incorporated directly into Canadian immigration law.

[48]          In response to the Charter arguments, the Respondent argues that the onus of showing a Charter infringement is on the Applicant. The Respondent characterizes the section 15 equality argument as based largely on the ground that the Applicant cannot "legally adopt" his son, within his religious beliefs. The Respondent relies on Osman v. Canada (Minister of Citizenship

and Immigration), [1999] I.A.D.D. No. 2902, online: (QL)(IADD), where the IAD found that Muslim Somali nationals had adopted their child and that this "could be legalized".

[49]            The Respondent says that it is questionable why the Applicant did not seek advice from his religious leader about adoption, as on cross-examination he admitted to not discussing adoption with his Imam. Further, the Respondent submits that the only negative consequence that would result from the Applicant legally adopting A.O under Canadian law would be stigmatization for the Applicant and his family. The Respondent criticizes this on the basis that if Islamic law does not recognize a negative DNA result as a challenge to the validity of a father-child relationship, then a conclusion based on the DNA result could not give rise to a stigma. The Respondent sees this a mutually exclusive proposition, either the DNA result is accepted under Islamic law and within the Islamic community and stigmatization occurs, or the evidence is rejected under Islamic law, and no stigmatization occurs.

[50]            Using the Law, supra, test, the Respondent submits that the Applicant has failed to show that he is part of a distinctive group, that is, that his personal characteristics are similar to a group who are in the same position as the "presumptive" but not biological or adoptive parents of children, and who cannot adopt their children because they are of the Islamic faith. The Respondent also says that the Applicant has failed to demonstrate that any differential treatment he may face is based on an enumerated or analogous ground. The Respondent argues that section 9(3) of the former Act requires, in an equal fashion, that "every person" produce such evidence as may be required by a visa officer.

[51]            The Respondent submits the Applicant has not demonstrated a section 15 Charter infringement in this case. Specifically, the Applicant has not shown that his personal characteristics give rise to differential treatment, that the personal characteristics of others in his position give rise to differential treatment, and that the terms of the former Act and their interpretation discriminated against him. The Respondent says that freedom of religion means the right to be free of state interference with religion and that this has been adhered to in this case.

[52]            Finally, in response to the section 7 Charter argument, the Respondent argues that this alleged violation depends on the Applicant's section 15 argument. The Respondent submits that since the Applicant cannot prove discrimination in the way in which the former Regulations were interpreted and applied pursuant to section 15 of the Charter, his argument that the law has violated his right to family life, pursuant to section 7 of the Charter, must also fail.

[53]            The Respondent says that the Supreme Court of Canada decision in G. (J.), supra, dealt with the state's interference in "parental rights", but does not apply to the rights of the family in general. The Respondent therefore argues that section 7 does not provide protection to the continuance of a parent-child relationship.

[54]            The Respondent also sets out submissions on the section 1 justification under the Charter, arguing that any Charter infringement is a a reasonable limit prescribed by law that is demonstrably justified in a free and democratic society.

FURTHER SUBMISSIONS

[55]            In response to the Direction dated October 6, 2003, the Applicant and Respondent filed written submissions on the collection and use of DNA evidence in this case and the IAD's evaluation of that evidence.

[56]            The Applicant submits that he was given no choice regarding the DNA testing. He was advised by the visa officer in Nairobi that if he did not undergo this testing, then his sponsorship applications for his three children would likely be refused. The Applicant would have preferred to provide alternative evidence, however, he underwent the DNA testing because he understood that his sponsorship applications would be refused if he failed to comply with the request.    He argues that the Board member erred in not considering other evidence, in addition to the DNA evidence, in this case. He refers to the statement that other pieces of evidence are "rendered immaterial" in light of DNA test results.

[57]            The Applicant refers to immigration cases where non-biological family relationships have been recognized.    These are based on s.2 (1)(h) of the former Regulations that refer to family class sponsorship of a relative where the sponsor does not have any relatives in the designated classes. He relies on these cases to show that the Immigration and Refugee Board has viewed family relationships in terms of affinity when dealing with members of the family class: Dudecz v. Canada (Minister of Citizenship and Immigration), [2002] I.A.D.D. No. 1031 (Q.L.), Mlinarich v. Canada (Minister of Citizenship and Immigration), [2000] I.A.D.D. No. 1887 (Q.L.).

[58]               The Applicant, relying on McCartney v. Amell (1982), 35 O.R. (3d) 651, argues that DNA testing for determining paternity is often not in the best interests of the child. He reiterates that DNA testing to determine biological relationship is qualitatively different than documentary evidence of relationship and in this case, the request and use of DNA evidence was discriminatory. He also submits that instead of dismissing his documentary evidence as immaterial due to the DNA results, the IAD should have considered other evidence concerning the legal and social relationship between M.A.O. and his child, A.O.

[59]            The Applicant argues that the IAD's emphasis on the DNA evidence to the exclusion of other evidence is inconsistent with the family reunification objectives of the former Act, as well as Canada's international legal obligations set out in the United Nations Convention on the Rights of the Child.

[60]            In response to the October 6, 2003 Direction, the Respondent submits that the Applicant did not raise the issue of DNA collection or its use before the IAD, according to the certified Tribunal Record, and consequently it is beyond the jurisdiction of this Court to address these issues.

[61]            The Respondent submits that the Applicant failed to question the validity of the DNA testing. The Respondent repeats that the IAD stated the opinion that DNA test results were the "best evidence" available to determine whether A.O. was a dependent son The Respondent argues that the IAD did not err in this assessment of DNA evidence.

[62]            In reply, the Applicant argues that the IAD's treatment of the DNA evidence is relevant to its decision that it did not have jurisdiction to hear his appeal, which is the subject of this application for judicial review.    The decision on jurisdiction was based on the DNA evidence and included the opinion that any other documentary evidence was "immaterial" in the light of that evidence.

[63]            The Applicant says that the IAD fettered its discretion when determining whether there was a biological connection instead of considering the totality of the evidence, including factors beyond the DNA results. The IAD failed to consider other evidence of the child-parent relationship, and if it had weighed such evidence, that evidence would not have been considered "immaterial" in relation to the DNA evidence.

ANALYSIS AND DISPOSITION

Relevant Legislative Provisions

[64]            Subsections 9(3), 77(1) and 77(3) of the former Act are relevant to this review and provide as follows:

[65]            The following definitions of the former Regulations are also relevant and provide:

Preliminary matter

[66]            The Respondent, in this judicial review application, argues that it is questionable that A.O. is really the son of the Applicant's first wife, since the deponents who swore that they were at the hospital when A.O. was born did not actually see S.S.A. give birth. This line of argument is not only offensive, in that it attacks only on speculation an area of the Applicant's personal and family life that was not raised in the IAD's reasons for decision, but it also runs roughshod over the process of a judicial review proceeding.

[67]            The Respondent cannot bolster the reasons of the IAD with new grounds that it has developed in support of the decision-maker's ultimate conclusion. A judicial review proceeding is intended to examine the process and reasonableness of a particular decision made by an administrative decision-maker. The reasons of the IAD do not question the maternity of A.O.'s mother, and it certainly was not a ground for the decision to dismiss the appeal. I find it is highly improper for the Respondent to raise such speculation at the judicial review stage of this proceeding.   

Statutory Interpretation of "issue"

[68]            Should the term "issue" within the definitions of "son" and "daughter" in section 2(1) of the former Regulations be interpreted inclusively to include both legal and biological issue?

[69]            In my opinion, the term "issue" cannot be interpreted to include children who are cared for and raised as though they were the sons and daughters of particular adults, as well as those who are biologically related to such adults.

[70]            In its decision, the IAD assessed the "plain and ordinary" meaning of the word "issue" in deciding that it must mean that the child and adult are biologically related. However, as the Applicant argues, the IAD used an incorrect approach to statutory interpretation. The Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 said that in matters of statutory interpretation, the decision-maker is to analyse the "grammatical and ordinary sense [of the term] harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament." The IAD should have taken into consideration those factors as identified by the Applicant, specifically the intention of the former Act to facilitate family reunification, in compliance with the Charter.

[71]            The Applicant correctly says that, in general the language of the former Act vis-à-vis family applications for landing should be read broadly, given that one of the objectives of the former Act is to reunite families. Ultimately, however, no matter how broadly "issue" is interpreted, it simply cannot be read to include children who have been treated as if they are the sons or daughters of certain adults, despite the fact that they have no biological ties with their de facto parents.

[72]            The evidence submitted by the Applicant to show that the term "issue" incorporates not only biological issue but also what he calls "legal issue", is unpersuasive. Family law in Canada has not expanded the meaning of the term "issue" to include both children who are biological descendants of their parents, as well as children who are treated as the sons and daughters of adults but without biological connection. Rather, the evidence, as the IAD pointed out, simply demonstrates that the word "issue" now accords legitimacy to children who are born out of wedlock. However, children are still required to be biologically linked to their parents to be considered "issue".

[73]            Further, some of the evidence presented by the Applicant reaffirms the argument that "issue" does not include a de facto son or daughter. Reference to Ontario's Family Law Act, in which the definition of "child" includes a "person whom the parent has demonstrated a settled intention to treat as a child of his or her family", indicates that where the legislature has intended to treat de facto sons and daughters, in the same way as it treats biological sons and daughters, this intention is explicit in the definition of the term. Having regard to the evidence, it appears that the word "issue", as defined in the Family Law Act, does not explicitly include de facto sons and daughters. The logical conclusion is that it can only include biological children.

[74]            The Applicant also refers to the presumption created by the Children's Law Reform Act of Ontario that a male person is, and shall be recognized in law, as the father of a child when he was married to the mother of the child at the time of the birth of the child. However, this piece of legislation uses the words "father" and "child" but not "issue". It does not assist in determining whether "issue" includes de facto sons and daughters.

[75]            The term "issue" would likely incorporate a situation where a child was born outside of marriage but had been proven to be the biological offspring of a sponsor. However, the word "issue" cannot encompass the kind of situation in which M.A.O. finds himself. The term "issue" in the former Act does not include de facto or legal children of parents.

"Best evidence" not required under the former Act

[76]            In my opinion, the IAD erred in its interpretation of the nature of the evidence required under the former Act. The member described the DNA evidence in the following terms at page 7 of her reasons:

...Therefore, the legislation has dealt with it [the situation where traditional identity documents are unavailable due to a collapse in a country's infrastructure] by requiring that those applying for a benefit, such as entry to Canada, provide the best evidence possible of the identity and connection at issue.

[77]            The former Act and Regulations did not explicitly deal with the collection of DNA evidence and the Respondent has provided no guidelines or policies of CIC that reflect the Department's understanding of the way that this type of evidence is to be requested and applied. Moreover, the former Act did not require that an applicant provide the "best evidence possible" of family connection. Rather, the former Act granted a wide discretion to a visa officer as to what would be required from each individual applicant. Subsection 9(3) of the former Act was identified by the IAD in its reasons as the authority under which the visa officer requested the DNA tests from M.A.O. and his children. That section provides as follows:        

[78]            Subsection 9(3) does not stop an officer from requesting that a DNA test be performed to establish familial relationship. Equally, this subsection by no means requires DNA testing when traditional paper documentation is unavailable. The former Act does not state that a particular form of evidence must be provided when traditional identity documents cannot be produced. Further, that Act does not use the terminology "best evidence". From the reasons of the IAD, it appears it concluded that the former Act required the visa officer to demand that the Applicant provide DNA evidence. In my opinion, this was an error in law. In commission of this error, the IAD also did not inquire as to whether the visa officer erred in requesting the DNA evidence from the Applicant, as if that request was a requirement under the former Act.

[79]            Next, the Respondent argues that the Applicant did not raise before the IAD, the issue of the manner in which the DNA was collected or how the IAD should view that evidence, and now says that this issue is beyond the jurisdiction of this Court on judicial review. I disagree.

[80]            The question of how the IAD interpreted the DNA evidence, together with other evidence of relationship, was squarely before the IAD. It concluded, at page 8 of its reasons, that DNA evidence was the "best evidence currently available", and that it "is not in a position to give greater weight to other evidence of relationship over and above the DNA result."

DNA evidence improperly obtained

[81]            The visa officer who requested the DNA tests from the Applicant did so in a manner that left him with no choice but to undergo that testing. The Applicant understood that if he did not submit to the DNA testing, then the sponsorship applications of his children would be refused. After reviewing the way in which the visa officer's request for DNA testing was worded, I view the Applicant's understanding as reasonable. The letter from the visa officer stated the request in the following terms:

In Abdullahi, Lul and Shafa's case, the documentation submitted with the application to support the existence of a blood relationship between all or some of the family members is not satisfactory. Abdullahi, Lul, Shafa and yourself are therefore invited to undergo a DNA blood test to prove that you are the natural biological father of Abdullahi, Lul and Shafa. The cost of undergoing such a test is entirely the applicant's or the sponsor's responsibility.

To arrange for a DNA blood test please contact one of the government-authorized laboratories listed overleaf. Once we have been notified by one of these firms that the fees have been paid, we will make an appointment for the blood collection overseas.

Failure to undergo a DNA blood test will likely lead to the refusal of an application. Please notify us as soon as possible if anyone refuses to do the test. If we do not hear from you within 3 months of the date of this letter we will assume that there is no interest in doing the test and we will proceed accordingly with the refusal of the application.

[82]            The former Act contains no requirement that an applicant must undergo DNA testing when other traditional forms of documentation are not available. The fact that the Applicant understood that he was required to provide DNA evidence after receiving the letter "inviting" him to provide it was before the IAD. The visa officer's letter requesting that he undergo a DNA test is included in the certified tribunal record. Further, the IAD sets out the broad authority for

the request for the DNA evidence in the reasons, that is, subsection 9(3). This means that the collection of the DNA evidence was before the member when she made the decision.              

[83]            In my opinion, the visa officer's letter requesting the DNA evidence, stating that if it was not provided the application would "likely" be refused, was improper and unfair. While in some circumstances DNA evidence may be considered necessary by the deciding officer, in the present case, the visa officer did not consider whether the Applicant could provide other evidence.

[84]            I agree with the Applicant that DNA evidence is "qualitatively different" from other forms of evidence. The intrusion into an individual's privacy that occurs with DNA testing means that it is a tool that must be carefully and selectively utilized. The visa officer acted as if this evidence was the only way under the former Act that the Applicant could prove his relationship to his children, instead of regarding it as one of several ways that the Applicant could establish his familial relationship to his children. In this manner, the officer fettered his discretion.

[85]            The consequences of the Applicant's belief that he and his children were required to undergo DNA testing have had a devastating impact on the family. He has been separated from his son for over four years. A.O. has had to live apart from his siblings since April 2000. The Applicant has deposed that if he had been presented with the option of providing affidavit

evidence from himself and witnesses, attesting to the fact that A.O. is his son, then he would have chosen to produce such evidence, instead of undergoing DNA testing.

[86]            While the decision now under review is that of the IAD and not the visa officer, I find that the improper procurement of the DNA evidence cannot be separated from the ultimate decision. The DNA tests were the basis for the IAD's decision to dismiss the Applicant's appeal on jurisdictional grounds, to the extent that the IAD found that all other evidence was "rendered immaterial".

[87]            Given my finding above, this is enough to dispose of this application for judicial review and I will not address the Charter arguments raised in this proceeding.

APPROPRIATE RELIEF

[88]            The facts of this case are unique. The Applicant, due to his religion, believes he cannot adopt his son, as he, his family and his community already consider A.O. to be his legal son. It is unclear if M.A.O. would even be able to adopt A.O., if he agreed to put aside his religious beliefs. This is a choice, however, that neither the Respondent, nor this Court, can ask him to make. The Respondent unfairly put the Applicant in a situation where he thought that he had to undergo DNA testing as the only way to prove familial relationship. The IAD refused to consider other evidence indicating that A.O. was the Applicant's "son" and there was no

consideration by the IAD as to whether the DNA evidence was properly obtained from the Applicant.

[89]            In Turanskaya v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 254 (C.A.)(QL), the Federal Court of Appeal stated that the "directions" which the Trial Division is authorized to give pursuant to section 18.1(3)(b) of the Federal Court Act, R.S.C. 1985, c. F-7, "vary with the circumstances of a particular case".

[90]            In many instances, this court is requested to quash a decision and remit to the decision-maker with a particular direction regarding evidence. The situation occasionally arises that the court directs that certain evidence be considered because the decision-maker appears to have ignored it. In my view, it is appropriate to include a direction that deals with the opposite scenario, that is, that certain evidence be excluded from consideration by the IAD.

[91]            In my opinion, the DNA evidence was obtained as a result of an error by the visa officer in too narrowly interpreting the breadth of his discretion under the former Act. Further, this evidence prompted the IAD to conclude that other evidence was "immaterial". In order to remedy the unfairness to the Applicant that has resulted from this improperly obtained evidence, I direct that the DNA evidence is to form no part of the IAD's decision, upon re-hearing of this matter. The Applicant has requested a direction that the DNA evidence is to be regarded as only one factor in the IAD's decision. In my view, total exclusion of this evidence is required in order for the IAD to fairly assess this matter.

[92]            The parties have not agreed upon a question for certification. While the Applicant submitted a question for certification dealing with the definition of "issue" under the former Act, at the conclusion of the hearing on May 1, 2003, the Respondent objected and said that the Immigration and Refugee Protection Regulations, SOR/2002-227 specifically uses the term "biological child" in defining a "dependent child" in section 2, so the current legislative regime makes the proposed question moot.

[93]            In my opinion, no question for certification arises in this case for the reason given by the Respondent and having regard to the unique factual situation that is present. Accordingly, no question will be certified.

                                                  ORDER

This application for judicial review is allowed. This matter is remitted to a different member of the Immigration Appeal Division for reconsideration with the following direction: the DNA evidence obtained in 1999 is to form no part of the decision and the Applicant is to be given the opportunity to present other evidence of relationship at the new hearing. No question is certified.

                                                                                           "E. Heneghan"

                                                                                                           J.F.C.

                                       FEDERAL COURT

             Names of Counsel and Solicitors of Record

DOCKET:                   IMM-459-02

STYLE OF CAUSE: M.A.O.

                                                                                                     Applicant

- and -

THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

                                                                                                 Respondent

PLACE OF HEARING:                                   TORONTO, ONTARIO

DATE OF HEARING:                                     THURSDAY MAY 1, 2003

REASONS FOR ORDER

AND ORDER BY:    HENEGHAN, J.

DATED:                      DECEMBER 2, 2003

APPEARANCES BY:                                       Ms. Carole Simone Dahan

For the Applicant

Mr. Marcel Larouche

For the Respondent

SOLICITORS OF RECORD:                        Ms. Geraldine Sadoway

Barrister & Solicitor

Parkdale Community Legal Services

1266 Queen Street West

Toronto, ON M6K 1L3

For the Applicant

Morris Rosenberg

Deputy Attorney General of Canada

For the Respondent

FEDERAL COURT

                                 Date: 20031202

Docket: IMM-459-02

BETWEEN:

M.A.O.

                                             Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                       Respondent

REASONS FOR ORDER

AND ORDER